"Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
To follow up on my promise earlier, the first thing we would want to look at in interpreting the Constitution is the text itself. The President is the "Commander-in-Chief" and the federal government's "executive power" is vested in him, though Article II of the Constitution does not define either term. Congress has the powers to raise the military, issue rules for its governance and regulation, and fund it. If these were the only constitutional terms on war, one would have to be left with the view that the Constitution arms both branches and leaves them to battle it out for control over war.
The deciding provision, then, for pro-Congress folks is that the Constitution gives Congress the power to "declare war." Some assume that "declare" means "start," "authorize," or "commence." Reading the provision this way creates problems -- for example, what about surprise attacks? Supporters of the pro-Congress view of the Clause have to read in an unwritten exception for defending the nation from attack, among other things.
But the biggest problem is that this reading of "declare war" reads one common contemporary meaning of "declare war" back into the minds of the eighteenth century Framers. For a clue, take a look at this provision, in Article I, Section 10:
No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
To me, this provision is telling. Notice that starting a war is not referred to as "declare," but "engage." Why not use "declare" in both places if it were to mean the same thing -- initiate hostilities? Article I, Section 10 creates exactly the process -- Congress must consent before a state can engage in war -- between Congress and the states that "declare war" types think should exist between Congress and the President. It even has the exception for self-defense from attacks! But it seems to me that if the Declare War clause means that the President must get Congress's permission to start hostilities, it should have said: "The President shall not, without the Consent of Congress, engage the United States in War, unless actually invaded, or in such imminent Danger as will not admit of delay."
We should read the Constitution's provision in harmony, especially those enacted at the same time. We should expect the Framers to have used the same words to mean the same things, or we have to believe that the Framers acted irrationally or without common understanding and purpose -- which I think is wrong.
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Mar '11
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
Best Con Law class I ever took, right here on Ricochet.
Mar '11
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
Thank You John
This I completely agree with; funny though that for the Liberals a living constitution means that Bush lied to get congressional approval while Obama can get away with anything.
It is also why the concept of excluding Christian Observance from the public square is ridiculous; Read the Constitution in context.
I am looking forward to the rest of your arguments and I am already sold.
Oct '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
Is there not something within the gaps to declare an emergency. And if so, with what controls ? Just how fluid is the interpretation and validity of same in this case...
Oct '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
I think many people aren't aware that the declaration of war is, in part, a legal status that is conferred after the fact. I often hear people say that a declaration of war is needed to go to war but they have the process backwards. The resolutions always read that a state of war has existed or exists between said countries. We were at war with Japan on December 7 (de facto) but not officially until December 8 (de jure).
Jun '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
As someone said, in making a pretty good case, Qaddafi declared war on America decades ago. We've just been exceedingly deliberate in our counter-attacks. And D-Day finally came.
Mar '11
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
Didn't an early Supreme Court case state that the conduct of foreign policy was "entirely within the conscience of the chief executive"? Why wouldn't that include enforcing his will against another country?
Does the declaration of war require the words "declare" and "war", or can the president start hostilities, and congress pays for it (a de facto declaration of war) or refuses to pay?
Jan '11
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
Why, then, would Congress NOT declare war?
If the "declaring" of war is merely a perfunctory legal exercise to cover bank seizures and asset holdings, why wouldn't Congress declare it every time the US goes to war? What's the incentive to refuse to declare war?
Is it merely a pro forma ritual?
Oct '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
KC Mulville: Why, then, would Congress NOT declare war?
If the "declaring" of war is merely a perfunctory legal exercise to cover bank seizures and asset holdings, why wouldn't Congress declare it every time the US goes to war? What's the incentive to refuse to declare war?
Is it merely a pro forma ritual? · Mar 25 at 10:21pm
A declaration of war carries with it implications for US law and international law. It confers a legal status to our relations with the belligerent country and affects treaties, commercial relations, and other issues. You also have to consider that sometimes we get involved/may get involved with non-state entities or with countries that we don't recognize so it would not be practical to declare war.
Nov '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
Hmmm, I confess to not knowing anything at all about constitutional interpretation, but I do feel I know something about the English language (or modern English, at least.) "Engage in" to me seems to connote physical participation in an act, whereas "declare" has a connotation of formality and abstractness--communication of a fact.
Congress would never have the power to "engage in war" because congress, as a body of congressmen, does not participate in the physical act of war. But they can "declare" it. A state, on the other hand, encompasses many things, particularly the people who are its residents. Those people can physically engage in war. When the vast majority of them are engaged in war, it would seem reasonable to say that the State itself is engaging in war.
Think of it another way: if you read that the President has the power to engage in war, wouldn't your first instinct be to imagine him personally leading a charge in a battlefield?
Edited on Mar 25, 2011 at 10:55pmFeb '11
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
"We should read the Constitution's provision in harmony, especially those enacted at the same time. We should expect the Framers to have used the same words to mean the same things, or we have to believe that the Framers acted irrationally or without common understanding and purpose -- which I think is wrong."
I don't think they were acting irrationally and there's no reason that at times they may have been intentionally vague for a reason -- to hold together 13 disparate states. I've almost finished Pauline Maier's book "Ratification" and that is one of things that delegate after delegate at state conventions say: the vagueness of the language contained in the Constitution.
Dec '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
So, Jan-Michael, are you saying that to 'engage in war' may mean to initiate hostilities directly (first person), where 'declare war' might mean to instruct others to initiate hostilities (second person)? This fits well with Professor Yoo's interpretation; that like terms would have been used if the intended meanings were the same.
Jan '11
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
The purpose of Article 1, Section 10 is to limit some sovereign capacities of the states. War is the ultima ratio regum of nation: the final and most important act of sovereignty. The framers knew this, of course. This is why they granted Congress - where popular and state sovereignty resided at the federal level - the authority to declare a state of war and denied the states this power unless actually invaded or an immediate response was necessary and too fast for the federal Congress to respond. They denied the President this power because the office does not (should not) represent the sovereign capacity of the people or states
On May 29th of the Federal Convention, they amended Congressional power from "make war" to "declare war," "leaving to the Executive the power to repel sudden attacks.” This and numerous other examples demonstrate the original understanding was that the President could respond to immediate attacks upon American soil but not engage in offensive warfare.
Professor Yoo is arguing for a monarchical-like President: embodying the sovereignty of the people, with war-making power in the name of the people. The Framers rejected this executive power as dangerous to liberty. So should we.
Edited on Mar 26, 2011 at 7:22amOct '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
Double post...sorry.
Edited on Mar 26, 2011 at 10:36amOct '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
IMHO, a big problem here is that many people do not understand the nature of our federal system.
Under the Constitution, power and authority are shared between the People (the res publica) and the association of sovereign States originally formed under the Articles of Confederation. The United States, in this regard, can be viewed as a corporation: The States are subsidiary components of a Federal corporate body, with the People as the members of the corporation.
The President of the United States is the Chief Executive Officer of the corporation of the sovereign States. He represents the States and manages their corporate interests and functions. The Congress is the Chairman of the Board of the corporation, representing the interests of the Members (the shareholders) of the corporation, the People.
Therefore, in terms of war, the President, acting on behalf of a/the State(s) has authority to engage in military conflicts on behalf of those States. However, a declaration of war is an decision of the Members of a Nation to engage in war with the Members of another Nation, an action which must be taken by the representatives of the Members, in our case, the Congress.
Aug '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
John Yoo:
To me, this provision is telling. Notice that starting a war is not referred to as "declare," but "engage."
It does not say "starting a war" = engage. It does say "or engage in war, unless actually invaded"
Whether a war exists or not (prior to the invasion) is immaterial to this provision - as it reads, a state may engage in war to restore its territorial sovereignty (even preemptively, "unless actually invaded, or in such imminent Danger as will not admit of delay").
My read if this is that the US could be at war and if some state is invaded (and the feds aren't doing anything about it) the invaded state may, on its own, engage in war to rectify the situation. Additionally, if a neighboring state is invaded another state could invoke the invoke the "imminent Danger" provision on its own.
Oct '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
I think Yoo is trying to make the point that the use of a different term indicates a different meaning and context in that section. The point is that here the framers used the term 'engage' rather than 'declare' and there must be a reason why.
Aug '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
Sure, while a single state may engage in war (it says so, right there, with certain provisos) a single state may not declare war - we require congress to do so.
Hmmm maybe Arizona ought to point to this section to give themselves leeway via their immigration law. Since a state may engage in war (which is a very serious thing) couldn't they engage in border enforcement (which is a lesser serious thing, but is also related to territorial integrity)?
Oct '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
Agreed. The point is that declare war does not mean the same thing that engage in war means. I think that's Yoo's argument.
I think even Gov Brewer wouldn't try that with immigration. There's no connection between the war powers clause and immigration.
Aug '10
Re: "Declare War" vs. "Engage in War": The Case For Expanding the President's War Powers
Except that it isn't immigration - it is invasion.