Oxford University Press, Howell, William G. Princeton: Princeton University Press, Katzmann, Robert A. Kriner, Douglas L. Chicago: University of Chicago Press, Torreon, Barbara Salazar. Weed, Matthew C. Zeisberg, Mariah. Herndon, 15 Feb. Knopf, : Kurland and Ralph Lerner, eds. Indianapolis: Liberty Fund, Inc. See also, Fisher, Presidential War Power : 6. Lawrence: University of Kansas, : — Eric Schickler and Frances E.

They have justified their actions on the basis of executive responsibilities they find inherent in the Constitution. He has invoked that vague prerogative on numerous occasions to satisfy much larger objectives of the executive branch. Donald C. Howell and Jon C. James A. The scope of this power is sharply contested, however. Some commentators think it includes defense against attacks on U.

Some commentators think it includes defense against threats as well as actual attacks. Some think it allows the President not only to take defensive measures but also to use offensive force against attackers.

Third, Presidents may use other constitutional powers — principally the commander-in-chief power — to deploy U. Similarly, deployment of U. More controversially, it is claimed that involvement in low-level hostilities may not rise to the level of war in the constitutional sense.

President Obama argued on this ground that U. However, this position is strongly disputed by other commentators. A related argument, also controversial, is that using force against non-state actors such as terrorist organizations does not amount to war, and thus does not implicate the Declare War Clause.

A fourth potential category is using force under the authority of the United Nations, which some commentators have argued can substitute for approval by Congress. However, Presidents have generally not relied on this source of authority and it is less well accepted, even in theory, than the prior categories.

The law of the Declare War Clause is unsettled in part because there have been very few judicial decisions interpreting it. Earlier cases, such as Bas v. But in modern times, courts have generally avoided deciding war-initiation cases on the merits, based on rules that limit what types of disputes courts can resolve, such as standing or the political question doctrine.

As a result, the precise contours and implications of the Declare War Clause remain unresolved today—leaving resolution of disputes over particular uses of force by the President to the political process. Modern hostilities typically do not begin with such a statement.

Moreover, the Framers surely understood that a formal declaration of war was not necessary prior to beginning hostilities. Eighteenth-century conflicts commonly began without formal announcements. When hostile action is taken against the Nation, or against its citizens or commerce, the appropriate response by order of the President may be resort to force. But the issue so much a source of controversy in the era of the Cold War and so divisive politically in the context of United States involvement in the Vietnam War has been whether the President is empowered to commit troops abroad to further national interests in the absence of a declaration of war or specific congressional authorization short of such a declaration.

Pinkney thought the House was too numerous for such deliberations but that the Senate would be more capable of a proper resolution and more acquainted with foreign affairs. Additionally, with the states equally represented in the Senate, the interests of all would be safeguarded.

In The Federalist, No. Cooke ed. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the confederacy; while that of the British king ex-subject all which, by the Constitution under consideration, would appertain to the legislature.

See also id. V Ellsworth gave up his opposition, and the vote of Connecticut was changed. The contemporary and subsequent judicial interpretation was to the understanding set out in the text. Maddox, while in international waters off the coast of North Vietnam the Gulf of Tonkin was attacked by North Vietnamese torpedo boats.

The attack was repulsed. The State Department protested to the North Vietnamese government and noted that grave consequences would follow additional offensive actions against U.

Subsequently, on August 4, further attacks by North Vietnamese vessels against U. President Lyndon Johnson responded on August 4 by sending U. After meeting with congressional leaders, President Johnson on August 5, , formally requested a resolution of Congress that would "express the support of the Congress for all necessary action to protect our armed forces and to assist nations covered by the SEATO Treaty. Congress responded to President Johnson's request by passing a joint resolution to "promote the maintenance of international peace and security in southeast Asia.

When the forces began to land on August 25, President Reagan reported this action to Congress but did not cite Section 4 a 1 of the War Powers Resolution, 26 and said the agreement with Lebanon ruled out any combat responsibilities.

After overseeing the departure of the Palestine Liberation Organization force, the U. Marines in the first Multinational Force left Lebanon on September 10, The second dispatch of Marines to Lebanon began on September 20, President Reagan announced that the United States, France, and Italy had agreed to form a new multinational force to return to Lebanon for a limited period of time to help maintain order until the lawful authorities in Lebanon could discharge those duties.

The action followed three events that took place after the withdrawal of the first group of U. Marines: the assassination of Lebanon President-elect Bashir Gemayel, the entry of Israeli forces into West Beirut, and the massacre of Palestinian civilians by Lebanese Christian militiamen. On September 29, , President Reagan submitted a report to Congress that 1, Marines had begun to arrive in Beirut, but again he did not cite Section 4 a 1 , of the War Powers Resolution, stating that the American force would not engage in combat.

As a result of incidents in which U. Marines were killed or wounded, there was controversy in Congress on whether the President's report should have been filed under Section 4 a 1.

In mid Congress passed the Lebanon Emergency Assistance Act of requiring statutory authorization for any substantial expansion in the number or role of U. Armed Forces in Lebanon. It also included a section that stated:. Nothing in this section is intended to modify, limit, or suspend any of the standards and procedures prescribed by the War Powers Resolution of President Reagan reported on the Lebanon situation again on August 30, , still not citing Section 4 a 1 , after fighting broke out between various factions in Lebanon and two Marines were killed.

The level of fighting heightened; and as the Marine casualties increased and the action enlarged, there were more calls in Congress for invocation of the War Powers Resolution. Several Members of Congress said the situation had changed since the President's first report and introduced legislation that took various approaches.

Senator Charles Mathias introduced S. Representative Thomas Downey introduced H. Senator Robert Byrd introduced S. A similar amendment was later rejected by the full body, but it reminded the Administration of possible congressional actions.

On September 20, , congressional leaders and President Reagan agreed on a compromise resolution invoking Section 4 a 1 of the War Powers Resolution and authorizing the Marines to remain for 18 months. The Multinational Force in Lebanon Resolution became the first legislation to be handled under the expedited procedures of the War Powers Resolution.

On September 28 the House passed H. On September 29 the Senate passed S. The House accepted the Senate bill by a vote of to later the same day. The President signed the joint resolution into law on October 12, As passed, the joint resolution contained four occurrences that would terminate the authorization before eighteen months: 1 the withdrawal of all foreign forces from Lebanon, unless the President certified continued U.

Congress also determined in the joint resolution that the requirements of Section 4 a 1 of the War Powers Resolution became operative on August 29, In a statement made on signing S. He sharply differed, however, with various "findings, determinations, and assertions" by the Congress on certain matters. He stated his concerns about the practical problems associated with Section 4 a 1 of the War Powers Resolution, and the wisdom and constitutionality of Section 5 b.

President Reagan noted that in signing the Lebanon resolution it was important for him to state. Nor should my signing be viewed as any acknowledgment that the President's constitutional authority can be impermissibly infringed by statute, that congressional authorization would be required if and when the period specified in section 5 b of the War Powers Resolution might be deemed to have been triggered and the period had expired, or that section 6 of the Multinational Force in Lebanon Resolution may be interpreted to revise the constitutional authority to deploy United States Armed Forces.

On August 2, , Iraqi troops under the direction of President Saddam Hussein invaded Kuwait, seized its oil fields, installed a new government in Kuwait City, and moved toward the border with Saudi Arabia. A week after the invasion, on August 9, President George H. He noted that he did not believe involvement in hostilities was imminent. Throughout the rest of , President Bush continued to work to establish an international coalition opposed to Iraq's aggression, while continuing to deploy additional U.

By the end of the year approximately , U. As the prospect of a war without congressional authorization increased, on November 20, , Representative Ron Dellums and 44 other Democratic Members of Congress sought a judicial order enjoining the President from offensive military operations in connection with Operation Desert Shield unless he consulted with and obtained an authorization from Congress.

By January, , President Bush had secured the support of the United Nations and an international coalition to use force, if necessary, to free Kuwait from Iraqi occupation. Resolution of November 29, , authorized all U. It set a January 15, deadline for Iraq to implement fully all relevant U. On January 8, , President George H. Bush, in a letter to the congressional leaders, requested a congressional resolution supporting the use of all necessary means to implement U.

Security Council Resolution He stated that he was "determined to do whatever is necessary to protect America's security" and that he could "think of no better way than for Congress to express its support for the President at this critical time. In a press conference on January 9, , President Bush reinforced this distinction in response to questions about the use of force resolution being debated in Congress.

He was asked whether he thought he needed the resolution, and if he lost on it would he feel bound by that decision. President Bush in response stated: "I don't think I need it I feel that I have the authority to fully implement the United Nations resolutions.

Armed Forces pursuant to U. Security Council Resolution to achieve implementation of the earlier Security Council resolutions. Section 2 b required as a precondition that the President would first have to report to Congress that the United States had used all appropriate diplomatic and other peaceful means to obtain compliance by Iraq with the Security Council resolution and that those efforts had not been successful. Section 2 c stated that it constituted specific statutory authorization within the meaning of Section 5 b of the War Powers Resolution.

Section 3 required the President to report every 60 days on efforts to obtain compliance of Iraq with the U. Security Council resolution. On signing H. As I made clear to congressional leaders at the outset, my request for congressional support did not, and my signing this resolution does not, constitute any change in the long-standing positions of the executive branch on either the President's constitutional authority to use the Armed Forces to defend vital U.

He added that he was pleased that "differences on these issues between the President and many in the Congress have not prevented us from uniting in a common objective. On September 11, , terrorists hijacked four U. The fourth plane crashed in Shanksville, Pennsylvania near Pittsburgh, after passengers struggled with the highjackers for control of the aircraft. The death toll from these incidents was nearly 3, President George W. Bush characterized these attacks as more than acts of terror.

He added that "freedom and democracy are under attack," and he asserted that the United States would use "all of our resources to conquer this enemy. In the days immediately after the September 11 attacks, the President consulted with the leaders of Congress on appropriate steps to take to deal with the situation confronting the United States. One of the things that emerged from discussions was the concept of a joint resolution of Congress authorizing the President to take military steps to deal with the parties responsible for the attacks on the United States.

Between September 13 and 14, draft language of such a resolution was discussed and negotiated by the President's representatives and the House and Senate leadership of both parties. Other Members of both houses suggested language for consideration. On Friday, September 14, , the text of a joint resolution was introduced. It was first considered and passed by the Senate in the morning of September 14, as Senate Joint Resolution 23, by a vote of The House of Representatives passed it later that evening, by a vote of , after tabling an identical resolution, H.

President Bush signed the measure into law on September 18, The joint resolution further states that Congress declares that this resolution is intended to "constitute specific statutory authorization within the meaning of section 5 b of the War Powers Resolution.

A notable feature of P. This authorization of military action against organizations and persons is unprecedented in American history, with the scope of its reach yet to be determined. The authorization of use of force against unnamed nations is more consistent with some previous instances where authority was given to act against unnamed states as appropriate when they became aggressors or took military action against the United States or its citizens.

Bush in signing S. The Bush Administration interpreted P. Thus, the Administration cited the joint resolution to support the President's power to detain persons he has deemed to be "enemy combatants" whether citizens or aliens and without regard to the location or circumstances of their capture 42 and to conduct electronic surveillance of communications within the United States without following the procedures prescribed in FISA.

In the summer of , the Bush Administration made public its views regarding what it deemed a significant threat to U. Senior members of the Bush Administration cited a number of violations of U.

Security Council resolutions by Iraq regarding the obligation imposed at the end of the Gulf War in to end its chemical, biological and nuclear weapons programs. On September 4, , President Bush met with congressional leadership and stated that he would seek congressional support, in the near future, for action deemed necessary to deal with the threat posed to the United States by the regime of Saddam Hussein.

The President also indicated that he would speak to the United Nations shortly and set out his concerns about Iraq.

On September 12, , President Bush addressed the U. General Assembly, explaining U. Security Council resolutions, including those related to disarmament. He stated that the United States would work with the U. Security Council to address the threat to international peace and security posed by Iraq.

He emphasized, however, that if Iraq refused to fulfill its obligations to comply with U. Security Council resolutions, the United States would see that those resolutions were enforced. Subsequently, on September 19, , the White House proposed legislation to authorize the use of military force against Iraq.

This draft would have authorized the President to use military force not only against Iraq but "to restore international peace and security in the region. The President's proposal was not formally introduced in the House. The House International Relations Committee reported out a slightly amended version of the joint resolution on October 7, H. The House adopted the rule governing debate on the joint resolution H. Subsequently, the Senate passed the House version of H.

In signing H. President Bush went on to state that on the "important question of the threat posed by Iraq," his views and goals and those of Congress were the same. He further observed that he had extensive consultations with Congress in the past months, and that he looked forward to "continuing close consultation in the months ahead.

The central element of P. As predicates for the use of force, the statute requires the President to communicate to Congress his determination that the use of diplomatic and other peaceful means will not "adequately protect the United States Like P. In contrast to P.

The authority also appears to extend beyond compelling Iraq's disarmament to implementing the full range of concerns expressed in those resolutions.

Unlike P. Moreover, the authority conferred can be used for the broad purpose of defending "the national security of the United States against the continuing threat posed by Iraq. It also requires as a predicate for the use of force that the President determine that peaceful means cannot suffice and that the use of force against Iraq is consistent with the battle against terrorism.

Security Council. The Bush and Obama Administrations relied on P. After initial invasion operations and the removal of the Saddam Hussein regime from power, U. Security Council resolutions regarding Iraq. Relevant U. Thus P. Arguably, the President could rely on P. Nevertheless, any presidential decision to again utilize the authority for use of military force in P.

Traditionally, peace and war have been deemed under international law to be distinctive forms of relations between states. Thus, peace has been defined as "a condition in which States maintain order and justice, solve their problems by cooperation, and eliminate violence. It is a condition in which States respect each other's sovereignty and equality, refrain from intervention and the threat or use of force and cooperate with one another in accordance with the treaties which they have concluded.

War, in contrast, has been described as "a condition of armed hostility between States," 54 "a contention, through the use of armed force, between states, undertaken for the purpose of overpowering another. Under the traditional laws of war enemy combatants can be killed, prisoners of war taken, the enemy's property seized or destroyed, enemy aliens interned, and other measures necessary to subdue the enemy and impose the will of the warring state taken. In this traditional understanding a declaration of war has been deemed, in and of itself, to have the effect of creating a state of war and changing the relationship between the states involved from one of peace to one of war.

That has been the case even if no hostilities actually occur. Some question exists as to whether international law traditionally deemed a declaration of war to be a necessary prerequisite to the existence of a state of war; 58 but it is clear that under international law a declaration of war has been viewed as "creating the legal status of war Authorizations for the use of force, in contrast, have not been seen as automatically creating a state of war under international law.

The U. Court of Claims, in construing the statutes authorizing the limited use of force against France in , described how their effects differed from those that followed in the wake of a war:. This statute is a fair illustration of the class of laws enacted at this time; they directed suspension of commercial relations until the end of the next session of Congress, not indefinitely If war existed, why authorize our armed vessels to seize French armed vessels?

War itself gave that right, as well as the right to seize merchantmen which the statutes did not permit. If war existed why empower the President to apprehend foreign enemies?

War itself placed that duty upon him as a necessary and inherent incident of military command. Why, if there was war, should a suspension of commercial intercourse be authorized, for what more complete suspension of that intercourse could there be than the very fact of war? There was no declaration of war; the tribunals of each country were open to the other—an impossibility were war in progress; diplomatic and commercial intercourse were admittedly suspended; but during many years there was no intercourse between England and Mexico, which were not at war; there was retaliation and reprisal, but such retaliations and reprisals have often occurred between nations at peace; there was a near approach to war, but at no time was one of the nations turned into an enemy of the other in such manner that every citizen of the one became the enemy of every citizen of the other; finally, there was not that kind of war which abrogated treaties and wiped out, at least temporarily, all pending rights and contracts, individual and national.

Whether this traditional understanding of war and of the effect of a declaration of war continues to be viable is a matter of considerable dispute among scholars. The right of a state to initiate war, many contend, has been outlawed by such international agreements as the Kellogg-Briand Peace Pact and the Charter of the United Nations.

In the Kellogg-Briand Peace Pact, 61 for instance, the Parties stated that they "condemn recourse to war for the solution of international controversies, and renounce it as an instrument of national policy in their relations with one another.

The United States, of course, is a Party not only to the Charter but also to the Pact, and it still regards the latter as continuing to be in force. The clarity of the consequences of a state of war in traditional international law has also become muddied in the modern era. Most States since , even when engaged in armed conflict, have resisted describing the conflict as a war.

A state of war still gives rise to "a mutual right to kill in battle," 73 triggers application of the various conventions regulating the means of waging war as well as of the general principles of necessity and proportionality, and brings into play the Geneva Conventions.

But its other legal consequences seemingly have become less determinate. Perhaps as a consequence of these developments, declarations of war have fallen into disuse and are virtually never issued in modern conflicts.