Law Lesson: Declarations of War ADDENDUM

I intended to mention it in my earlier post but set it aside when I ran out of time for blogging this morning. Commenter Christopher Taylor reminded me of what I’d forgotten when we had this exchange in the comments:

[I ask:] Did Congress "declare War" for constitutional purposes when it passed the AUMF 2002 (Iraq War Resolution)?

[Christopher answers:] No.

His answer is similar to that of Attorney General Gonzales. The AG told the Senate Judiciary Committee in February 2006 (transcript here):

There was not a war declaration, either in connection with Al Qaida or in Iraq. It was an authorization to use military force. I only want to clarify that, because there are implications. Obviously, when you talk about a war declaration, you're possibly talking about affecting treaties, diplomatic relations. And so there is a distinction in law and in practice. And we're not talking about a war declaration. This is an authorization only to use military force.

The AG claimed that there is a difference between formal declarations of war and authorizations to use military force “in law and in practice.” We will see that there is not.

First, looking to case law, we will find that no U.S. court has ever found a difference between the two. Unfortunately, this discovery isn’t determinative because courts are reluctant to confront issues like these, citing the political question doctrine in order to deprive themselves of temptation to interfere in the other branches of government.

Courts have, however, issued dicta on the topic, especially when discussing the Vietnam War. An important case discussing the war powers of the executive and legislative branches is Orlando v. Laird. Orlando was an enlistee ordered to serve in Vietnam during the war. He sued, claiming that the Congressional authorization for war in Vietnam (the Tonkin Gulf resolution, which was not a formal declaration of war) was insufficient to actually declare war in accordance with the constitutional requirement.

The Second Circuit ultimately ruled that this was a political question:

The form which congressional authorization should take is one of policy, committed to the discretion of the Congress and outside the power and competency of the judiciary, because there are no intelligible and objectively manageable standards by which to judge such actions.

But on the way to that conclusion, the court wrote that war authorization can occur informally through “a resolution and war-implementing legislation” rather than a formal declaration of war and still satisfy the Declare War Clause.

A more recent case which touched on this issue was Hamdan v. Rumsfeld, decided in 2006. There, the plurality opinion noted that their conclusions as to the rights and duties of the parties (i.e. terrorists and the U.S. government) did not rely on whether a formal declaration of war was issued. It was enough that a state of war existed and Congress had acted through legislation to trigger the safeguards of law.

Second, let’s see what Congress has had to say about it, or rather one Congressman in particular. Senator Joe Biden, responding to questions from reporters shortly after voting for the AUMF 2001 said:

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.

Finally, there has been no difference in treatment between the two “in practice.” Formally declared wars have been both short and long, both limited and broad in scope, and both relatively bloodless and bona fide bloodbaths. Just like informally declared wars.

As I said earlier, in practice, when Congress points the United States military at a country and tells them to “fight, overthrow, and occupy” no one should be mistaken about whether or not Congress has declared war on that poor country.

posted by Gabriel Malor at 06:40 PM

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