What Are The Laws Regarding Declaring War?


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Since its inception, the U.S. has been required to take military action of one sort or another under every president and administration, even before the United States of America had a Constitution. Since the creation of the U.S. Constitution, however, the United States has had laws regarding declaring war. Certain military actions can be taken without formal declarations of war, others cannot. So what are the laws regarding declaring war?

Article I, Section 8 of the U.S. Constitution indicates that Congress has the power to declare war. On the other hand, Article II, Section 2 of the Constitution identifies the President as the “Commander-in-Chief” of all U.S. military forces. Traditionally, this has been interpreted to mean that only the Congress can declare war, and that once that is done, the President will be responsible for leading those military activities.

This distinction has also been interpreted to mean that the President can take steps to act defensively of the national interests, but cannot take preemptive military action. In other words, under the U.S. Constitution, the President is only authorized to repel invasions and sudden attacks without a formal Congressional declaration of war. Any undeclared offensive military actions are not executive branch powers.

Unfortunately, while this designation made more sense in a time before jet aircraft and electronic communications, it has been consistently eroded throughout the late 20th and early 21st Centuries. The justification has often been that military action overseas is required to secure domestic interests. But, this justification has been stretched to extremes at times. For example, the invasion of Iraq in 2003 was justified by the supposed stockpiling of weapons of mass destruction by Iraq in contravention of several international agreements. However, there was no evidence of an imminent threat to the U.S. or, as it turned out, any actual weapons of mass destruction. As a result, many have asserted that the war on Iraq was illegal.

Under the U.S. Constitution, each branch of government has its assigned responsibilities, and is not authorized to transfer those responsibilities to another branch. This creates the separation of powers most people have heard of in civics class. It also is a reflection of the founding fathers' distrust of excessive executive power.

Unfortunately, while originally created to be a relatively weak branch of government, the President (the executive branch) is now seen by most as the de facto leader of the U.S. government. As such, the President's authority has expanded and he has been given increasing levels of deference. Though no President has yet been impeached or indicted for taking military action without a formal declaration of war by Congress, many have suggested that such actions would be appropriate when Presidents overstep their authority in taking military action.

In order to sidestep these limitations, acts of war have been re-branded as something other than “war.” For example, they are often called police actions, peace keeping missions, limited military engagements, or a number of other names. Whatever they are called, the result is the same and the question remains regarding the constitutional ramifications of such actions. Nevertheless, it remains unclear how these laws will be enforced – or if they will be enforced – at any point in the future.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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