Where is our declaration of war?


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faustulus
July 23, 2003, 05:10 AM
Most of us here have pretty specific views about the constitution. The constitution only gives congress the right to declare war. Do you think it was the founding fathers intentions to allow America to be drawn into conflict without a declaration of war? I think we have all gone over our position on the latest war well enough, I just want to know about the constituition and what our forefathers may have been thinking.

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themic
July 23, 2003, 07:56 AM
senate makes treaties
congress makes war

national war powers act was supposed to limit president's powers but actually increased them

this act was approved by both senate and congress

so as long as president stays within the act he's got the implicit approval of congress

for safe measure with iraq bush got an additional "ok to go in when you want to" from congress anyways

OT ? ...3...2....1...

Kharn
July 23, 2003, 08:57 AM
I believe Congress authorized any military action in the war on terrorism back in 2001 or 2002.

Kharn

greyhound
July 23, 2003, 08:59 AM
Haven't had a real declaration of war since WW II. It was my hope we'd have one for the WOT, but nah, we'll just keep it in the shadows like the War on Drugs.....

Mike Irwin
July 23, 2003, 11:35 AM
Yep, Congress gave Bush quite a bit of leeway to take military action.

Congress did the same thing in 1990 when Bush I was in office.

The Constitution does say that Congress makes war. But it doesn't say how, or whether or not that ability can be given to another entity by proxy.

Al Norris
July 23, 2003, 12:15 PM
Article I: The Legislature, Section 8: Powers of Congress, Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Congress, that is, both the House and the Senate, can declare war. They do not "make" nor engage in war. That is the province of the Executive.

There is no Constitutional authority for any of the three branches of the Federal Government to relinquish any of their enumerated powers to another branch. Hence the reason many scholars and constitutional lawyers have said the War Powers Act is unconstitutional. It is a usurption of power delegated to Congress.

Every single time a suit has been brought before the courts, opposing the presidential powers of war vis a vis the Congress granting such without a formal declaration, the courts have declined to hear the case on the grounds that it is a political issue and not a legal issue. This trend started during the Civil War when Lincoln suspended the writ of Habeas Corpus and the SCOTUS ruled against that usurption of constitutional authority. Lincoln was said to have told the Court, "let's see you enforce your ruling." Since that time, the Court(s) have chosen not to test their authority against a sitting President.

Remind anyone of another issue the Court refuses to tackle?

longeyes
July 23, 2003, 12:27 PM
I think you can consider us perpetually at war, declared or undeclared.
Maybe that goes with being a free country in a vast sea of tyranny.
That said, declaring war would be good and proper--assuming we could
trust Congress to act like responsible, non-partisan adults.

4v50 Gary
July 23, 2003, 01:00 PM
We've been sending troops to intervene if foreign affairs since the '20s and '30s in Central America. USMC General Smedley Butler, twice holder of the CMH, use to refer to himself as the strong arm of Wall Street.

Mike Irwin
July 23, 2003, 01:12 PM
"There is no Constitutional authority for any of the three branches of the Federal Government to relinquish any of their enumerated powers to another branch."

At the same time, there's absolutely nothing in the Constitution that says that those branches can't do that, either.

Mk VII
July 23, 2003, 01:27 PM
under the U.N. Charter anyone who declares war is automatically deemed to be an aggressor. So nobody bothers to Declare War anymore...

Al Norris
July 23, 2003, 02:11 PM
From Findlaw: Delegation of Legislative Power in Wartime (http://caselaw.lp.findlaw.com/data/constitution/article01/41.html#18)

Two theories have been advanced at times when the delegation doctrine carried more of a force than it has in recent years. First, it is suggested that inasmuch as the war power is inherent in the Federal Government, and one shared by the legislative and executive branches, Congress does not really delegate legislative power when it authorizes the President to exercise the war power in a prescribed manner, a view which entirely overlooks the fact that the Constitution expressly vests the war power as a legislative power in Congress. Second, it is suggested that Congress' power to delegate in wartime is limited as in other situations but that the existence of a state of war is a factor weighing in favor of the validity of the delegation.

....

"The power [of delegation] is especially significant in connection with constitutional war powers under which the exercise of broad discretion as to method to be employed may be essential to an effective use of its war powers by Congress. The degree to which Congress must specify its policies and standards in order that the administrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition. . . . Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind." LICHTER V. U.S., 334 U.S. 778-779, 782 (1948). (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=334&invol=742)
There are other references, suffice it to say that the Court has clearly stated that under normal circumstances (ie, not wartime) Congress cannot delegate it's own constitutional authorities.

Some of you will argue that these times are not normal circumstances. I would tend to agree, but also point out that since War has not been declared, the circumstances are not dire.

In the entire commentary that the opening URL points to, you will find that much lattitude is given the executive when war is declared and not before.

edited to correct spelling...again

brownie0486
July 23, 2003, 02:25 PM
Al states: "I would tend to agree, but also point out that since War has not been declared, the circumstances are not dire."

You don't think we are in dire circumstances when the terrorist states have declared war on us with their "holy" this and "holy" that?

We've been at war since the WTC on 9-11 to my thinking. I don't need to wait for congress or the president to declare anything to be at war, they brought the fight to us, we have to respond in kind or worse so that they understand there are repercussions to attacking the citizenry of this country.

I think they are learning this slowly, but better slow than not at all.

Preemptiveness is a good thing here. It certainly is dire in my book whether Congrees says so or not. Course I'm an old jarhead from the RVN era and have no problem taking them out of lifes equation.

Brownie

themic
July 23, 2003, 02:35 PM
the war powers act is likely unconstitutional, but it's never tested not necessarily because the SCOTUS avoids it but ALSO because the president never really declares war using that act, so that it will never be tested. notice Bush did not declare war himself, formally.

instead, they both try to operate within the bounds of the war powers act, roughly, kindof like it's a guide or a statement of how they're going to act.

Drjones
July 23, 2003, 04:32 PM
I'm going to get called a lot of names for saying this, but if 9/11 wasn't enough of a "Declaration of War" for you, then you have some major issues.

Drjones
July 23, 2003, 04:35 PM
For those who need more than "just" 9/11:


http://usinfo.state.gov/regional/nea/iraq/text/1010res.htm

10 October 2002

House Joint Resolution Authorizing Use of Force Against Iraq
House of Representatives approves resolution October 10

Following is the text of House Joint Resolution 114, "To authorize the use of United States Armed Forces against Iraq," approved in the House of Representatives October 10, by a vote of 296 to 133:

107th CONGRESS
2d Session
H. J. RES. 114
To authorize the use of United States Armed Forces against Iraq.
IN THE HOUSE OF REPRESENTATIVES
October 2, 2002

JOINT RESOLUTION

To authorize the use of United States Armed Forces against Iraq.

***This is all that I copied, as the resolution is rather lengthy. Click the link above to see the full text.***

faustulus
July 24, 2003, 01:44 AM
I am not thinking so much of 9/11 since a 'war on terrorism' is as nebulus and never-ending as a 'war on poverty' or a 'war on drugs.' 100 years from now if there is still a U.S. we will still be engaged in this 'war'. I am more thinking about moves in Afghanistan, Iraq, Bosnia, and the rest. I think that congress has avoided some of its duties because those duties are difficult and given them over to someone more willing to make those decisions, however, I wonder if this was the intent of our framers of the Constitution.

themic
July 24, 2003, 08:18 AM
the intent, in general, is to have important long term stuff done by congress and quick action when necessary performed by the executive.

this was interpreted into saying that the president could act for 90 days wihtout explicit permission from congress, only required to inform them within that time period.

and since congress has the power of war, they have the power to "authorize force."

so the war in iraq is arguably legit. close, anyways. as is the afghanistan war.

one could even argue that the war on drugs is "authorized" through the plethora of laws, despite whatever reservations one may have about the practical and moral issues involved.

tyme
July 24, 2003, 08:54 AM
Drjones, while everyone grants that Saddam & Associates are responsible for some terrible atrocities and that they violated UN sanctions, Saddam is not generally believed to have been involved in 9/11. I suppose you could use any tragedy as an excuse to start a campaign against anything you dislike, but then you end up like the Brady Bunch, without honesty or integrity. Not that it would make a difference... this country seems to have been running without those qualities for decades.
("You" used in the general sense, obviously)

brownie0486
July 24, 2003, 09:14 AM
It has been proffered that Bin Laden visited with Sadam on a few ocassions in Iraq a few years before 9-11.

Somehow I don't think they were discussing the weather between them over tea and crumpets.

His money backed all sorts of ideas against the US. See where his ideas have gotten him now?

If Gore had been elected we would not have gone to Iraq at all. Preemptiveness is a good thing here, I'm only wondering why it took so long to get there, but then I realize Clinton doesn't have the stomach for it like the commander in chief we have now.

Brownie

Drjones
July 24, 2003, 05:33 PM
Convenient of y'all to ignore Resolution 114 that I posted.

Gordon Fink
July 24, 2003, 06:25 PM
Convenient that we enforce the U.N.’s will when it pleases us and ignore it when it doesn’t …

~G. Fink

Hkmp5sd
July 24, 2003, 06:50 PM
There hasn't been a "declared" war since WWII quite simply because the congress has never had the courage to go on record in favor of one. From the Korean "police action" to the current war in Iraq, congress has always given the president the authority to use force if he deems it necessary, but never decide it's "us or them" and we're gonna fight to the death.

This allows them to sit dead center on the fence and fall to whichever side works out best. In a war like Vietnam, they can state they trusted the president, didn't really know the whole story, were lied to by the president (which is the current theme regarding Iraq) and they are doing everything they can to bring the conflict to an end.

On the otherside, in wars like Desert Storm, they can jump up, pound their chest and yell "way to go"! Then turn around and accuse the president of ending hostilities too early, allowing the enemy to get away and remain a future threat.

bad_dad_brad
July 24, 2003, 07:59 PM
As stated a lot of things changed after WWII. I think if aliens invaded the Earth, or the nation were threatened with extinction, we might get congress to declare war. And remember after WWII in 1947 - the cabinet positions of Secretary of War and Secretary of the Navy, existing since Washington's times were combined under the new Secretary of Defense. This was more of a sort of hierarchy change as the Secretary of the Navy still existed, and the Secretary of the Army was created which really was the position that the Secretary of War held, now both being non-cabinet postitions answering to the Secretary of Defense. But still, the nominclature of the new cabinet position says a lot.

The U.S. has fought plenty of little wars in it's history without declaring such. I would suggest as interesting reading to those THR members curious about these smaller conflicts should procure the book "The Savage Wars of Peace" by Max Boot - 2002 - Basic Books.

TexasVet
July 25, 2003, 12:14 AM
House Joint Resolution 114
Does no one care that this resolution meets the constitutional requirements of a declaration of war? Just want to keep arguing a moot point to get your various political axes ground?
There is NOTHING that requires the mention of the words "declaration of war" to be incuded.
Wait, there must be some jailhouse lawyer reason this doesn't count. Right?:banghead:
drjones, please assume that most of us can really read, some just won't.:rolleyes:

faustulus
July 25, 2003, 02:45 AM
the intent, in general, is to have important long term stuff done by congress and quick action when necessary performed by the executive.
What do use to suppor this, historically that is? I am curious, because I know that is more or less become the standard but where did it originate?

Convenient of y'all to ignore Resolution 114 that I posted.
Didn't ignore it, but congress doesn't consider it a declaration of war so I will ceded them the semantics on that one.

I know we have been in many conflicts without a declaration, but what was the intent of that particular check and balance? Is it being adhered to today? How strict should we interpret it? Most of us view the 2nd with a pertty strict interpretation.

Delmar
July 25, 2003, 03:47 AM
Seems to me that what Dr. Jones posted, as well as the other posts point out, that Congress has been on record in backing the President on every "non-declared" war we have been in since the end of WWII.

As we have now entered the era where "it depends on what your definition of is, is", our "esteemed" members of Congress has delared war on every country we have had boots on the ground with their explicit consent in the various resolutions they have passed.

Of course, the word "delcaration" is conspicously absent in all of these resolutions so that when the people rise up and ask exactly what in the wide, wide world of sports is a goin on here?, the weasels will turn against the very resolution they voted on and point fingers at the White House.

Drjones
July 25, 2003, 11:53 AM
Convenient that we enforce the U.N.’s will when it pleases us and ignore it when it doesn’t … Damn straight.

If we don't look out for us, no one else will.

TexasVet
July 26, 2003, 02:23 AM
congress doesn't consider it a declaration of war so I will ceded them the semantics on that one.

Actually, only the liberal idiot congressmen don't think it is now. They knew exactly what they were voting for back then. I don't cede those wimps and liars anything.

.45Ruger
July 26, 2003, 11:29 PM
The thing I have always wondered, if their is no declaration of war, are our soliders protected under the Geneva Convention? If not then it is high time we start declaring war again.

Hkmp5sd
July 27, 2003, 08:49 AM
are our soliders protected under the Geneva Convention? If not then it is high time we start declaring war again

I believe the convention covers all armed conflicts in which the member nation partakes, whether declared or not.

You may also note that it's generally only our side that goes by the convention. From the Japanese (and some German incidents) in WWII to the Gulf War II, we treat the enemy prisoners quite well and they do whatever they want.

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