How many times Congress declare war?
cayuga
war?
Michael P Reed
> Can someone tell me how many times, and which wars, has congress declared
> war?
Formal declarations of war were made on five instances:
1812-War of 1812
1846-War With Mexico
1898-Spanish American War
1917-World War I
1941-World War II
Moreover, Congress either approved or mandated military action on numerous other
occasions. Most recent being the current War on Terrorism, Kosovo*, and the
Persian Gulf.
* Challenged in court by some Republicans, (in so far as I recall) a judge
ruled that approving funding for Allied Force amounted to de facto
Congressional approval.
--
Regards,
Michael P. Reed
Steven James Forsberg
:
IIRC, the actual decision did not rest on the 'merits' of the
case, but rather dismissed it for a variety of reasons. ONe of the primary
ones was that by the time the suit was heard by the court, the military
action was over. The court ruled that the case was therefore moot (and also
denied arguments that the circumstances warranted hearing on the 'recurrence'
principle). Yet another reason was "lack of justiciability". Another argued
that there was no "legal definition" of the term "war" and thus couldn't
be decided by the court (ignoring hundreds of years of the court specifically
defining legal terms). IN short - the court didn't want to touch the case
and everyone had their own reason to dodge.
It was pointed out, though, that congress could -- at least in
theory impeach the President or vote to deny funds. Acutal congressional
control over money is tricky, however, and past presidents have argued
that they don't need congressional approval for funds spent as 'commander
in chief'. ONce again, the courts have been desperately trying to avoid
the issue.
Ah, and now suddenly I seem tor ecall the real precedent was that
basically the court said that "congressmen" could not appeal to the
courts for assistance in such situations. If the president does not do
what congress wishes, they must deal with it themselves, basically. (at
least in caes of failure to implement) It is a tricky legal area,
however.
Regards,
----------------------------------------------------
sjfo...@bayou.uh.edu
nukday
cayuga wrote:
>
> Can someone tell me how many times, and which wars, has congress declared
> war?
You can add September 2001.
From October 22, 2001 Transcript: Q&A with Senator Biden [D-Delaware]
Following His Speech to the Council on Foreign Relations (Part 2)
http://biden.senate.gov/~biden/press/release/01/10/2001A24C02.html
M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged
approach to the problems we face. My question is this, do you foresee
the need or the expectation of a Congressional declaration of war,
which the Constitution calls for, and if so, against whom? (Scattered
Laughter)
JB: The answer is yes, and we did it. I happen to be a professor of
Constitutional law. I'm the guy that drafted the Use of Force proposal
that we passed. It was in conflict between the President and the House.
I was the guy who finally drafted what we did pass. Under the
Constitution, there is simply no distinction ... Louis Fisher(?) and
others can tell you, there is no distinction between a formal
declaration of war, and an authorization of use of force. There
is none for Constitutional purposes. None whatsoever. And we defined
in that Use of Force Act that we passed, what ... against whom we
were moving, and what authority was granted to the President.
The Use of Force Act is at
http://thomas.loc.gov/cgi-bin/query/z?c107:S.J.RES.23.ENR:
nospam
From: Michael P Reed mpr...@chartermi.net
Date: Tue, Sep 10, 2002 1:31 PM
Message-id: <lEsf9.307640$aK5....@post-02.news.easynews.com>
Is earmarking of funds legal or constitutional?
For example, can Congress approve 100 billion for defense with the stipulation
that no funds should be available for a particular military action (like
Kosovo)?
nukday
nospam wrote:
> Is earmarking of funds legal or constitutional?
> For example, can Congress approve 100 billion for defense with the stipulation
> that no funds should be available for a particular military action (like
> Kosovo)?
In the 70's Congress did that on Vietnam. They continued to fund the
Armed Services, though as it turned out at unsustainable levels
compounding the disintegration of operational preparedness, with
conditions that no funds go to the Republic of Vietnam in any form
or fashion. These are the powers of Congress under Article I of
the Constitution. This is a major part of the separation of powers.
Congress establishes the services, their rules, confirms appointments,
and provides the funding. The President is Commander and Chief under
Article II. He is the one empowered to executes military operations
and for appointments of offices within the services.
This is the legacy of British [and by extension the American]
experience with Oliver Cromwell's rise to power in England.
Don Phillipson
news:3D8268CB...@earthlink.net...
> Congress establishes the services, their rules, confirms appointments,
> and provides the funding. The President is Commander and Chief under
> Article II. He is the one empowered to executes military operations
> and for appointments of offices within the services.
> This is the legacy of British [and by extension the American]
> experience with Oliver Cromwell's rise to power in England.
Nothing in "Cromwell's rise to power" seems to
be replicated in the US constitution. There was
no doctrine of the separation of powers (executive,
legislative, judiciary) in 17th century England or
today, i.e. the House of Lords is the highest
judicial body in the land. Cromwell was a Member
of Parliament (400 years old in his time) appointed
by Parliament first to command one of its armies,
later all the parliamentary armies: and after the
king's execution was named "Lord Protector" of
the "Commonwealth," something both new and
undefined: in fact his powers were those of the
dethroned king (i.e. executive and legislative and
judicial as well.)
--
Don Phillipson
Carlsbad Springs (Ottawa, Canada)
dphil...@trytel.com.com.com.less2
nukday
Last time I checked, after becoming the commander of
all forces, he then turned on that very same Parliament,
appointed his own, and appointed himself [like any
20th/21st Century president for life] Lord Protector.
The point is that the American framers wanted to prevent
the concentration of powers in any one branch which by
its dynamics would permit someone to follow the same
pattern to total power within the government which their
fathers and grand fathers had witnessed with Cromwell.
Steven James Forsberg
Of course, as professor of Constitutional Law, Mr. Biden avoided
mentioning any contrary arguments :-). For starters, an argument could
be made that no congressional action short of a Constitutional Amendment
(no law, act, etc.) over-rides the authority of the constitution.
Furthermore, the Supreme Court is the ultimate interpreter of the
constitution. Thus, if the court has not ruled on a matter (either by
evading or because it has not been brought) then the matter hasn't
"really been decided".
I would suggest that in the past, the Supreme court has indeed
made a very big distinction over the existence of a "declaration of war",
even if the main impact has been in powers allowed the President in the
comestic (as opposed to foreign) arena. A "use of force" specifically
allows the President to act against foreign powers, but a "Declaration
of War" also gives the President vast powers to dontrol the domestic
arena and impinge upon civil liberties. I personally don't like to see
them confused.
regards,
-------------------------------------------------------------
sjfo...@bayou.uh.edu
nukday
From http://volokh.blogspot.com/
[Eugene Volokh, 6:23 AM]
MORE ON WHY WAR DOESN’T REQUIRE A DECLARATION OF WAR: I realize that
in my past posts on this subject I haven’t given much by way of actual
case holdings, and a recent exchange apropos Dahlia Lithwick’s claim
in Slate that “we are not even at war as a legal matter, which
requires a formal war declaration by Congress” led me to collect some
items:
(1) The most extensive discussion of the subject that I could find is
in The Prize Cases (The Brig Amy Warwick), 67 U.S. 635, 666, 668-669
(1863). The discussion arose in the context of a civil war, but it
applied broader principles; most relevant today are the statements
that:
[W]ar may exist without a declaration on either side.
and
If a war be made by invasion of a foreign nation, the President is
not only authorized but bound to resist force by force.
(2) Montoya v. United States, 180 U.S. 261, 266-67 (1901), arose in
the context of a war with Indian tribes, but again applied broader
principles. It adopted earlier statements that a war may exist
without being declared, and most relevant to today’s situation, it
acknowledged that a war may be levied by a group that is not a nation:
If [the] hostile acts [of “a collection of marauders”] are directed
against the government or against all settlers with whom they come in
contact [as opposed to being “for the purpose of individual plunder,”]
it is evidence of act of war. . . .
We recall no instance where Congress has made a formal declaration of
war against an Indian nation or tribe; but the fact that Indians are
engaged in acts of general hostility to settlers, especially if the
government has deemed it necessary to despatch a military force for
their subjugation, is sufficient to constitute a state of war.
(Note of course that all this is true without regard to what one sees
as a moral character of a particular war; I don’t know who was at
fault in the particular conflict at issue in Montoya, but this
doesn’t matter for legal purposes.)
(3) In Bas v. Tingy, 4 U.S. 37, 40-44 (1800), each Justice gave his
own opinion in writing (pretty much the norm during that era), but
they all seemed to agree that a state of war may exist between two
nations even without a formal declaration of war.
These cases aren't squarely controlling here, because none specifically
involved a clandestine attack, involving no attempt to occupy actual
territory, by a foreign enemy that doesn't amount to a nation. But
certainly all of them acknowledge that war may exist without a
declaration of war; and the considered dictum in Montoya suggest that
this applies to attacks by enemy marauders and not just sovereign
states.
And I have not seen any Supreme Court cases that even suggest the
contrary -- that a war may exist only when declared by Congress. The
only court authority that I've seen for this proposition are the lower
court decisions in United States v Averette, 19 USCMA 363, 41 CMR 363
(U.S. Court of Military Appeals 1970), and Robb v. United States, 456
F.2d 768 (U.S. Court of Claims 1972), which held (interpreting the
Uniform Code of Military Justices in light of what they saw as
constitutional constraints) that military authority over civilians
was limited to times of declared war. These lower court statements do
not, however, strike me as that persuasive, especially given the
contrary statements by the Supreme Court. And the courts themselves
described their holdings as quite limited, distinguishing earlier
cases that held that "war" in other contexts does include undeclared
wars.
So I continue to be pretty firmly convinced that “war as a legal matter”
does not “require[] a formal declaration of war.” Be cautious about
claims that it does.
(Note, incidentally, that Senator Biden takes the view that in any
event the Congressional authorization of the use of force is legally
tantamount to a declaration of war, though that’s a separate issue.)