[Expanded Answer to Question 3]
In 1950, troops of the North Korean People’s Army invaded South Korea. President Harry Truman, without asking for or receiving a declaration of war from Congress, announced that U.S. forces would intervene in the Korean conflict to prevent the conquest of an independent nation by communism. He termed U.S. involvement in Korea a “police action,” pursuant to a United Nations Security Council resolution (proposed by the U.S.) demanding an “immediate cessation of hostilities” by North Korea. However, acting under the aegis of the United Nations is not “a legal substitute for congressional action” in determining whether the U.S. is to go to war.
|
If that were possible, the President and the Senate could rely on the treaty process to strip for the House of Representatives its constitutional role in deciding and participating in questions of war. . . . The history of the United Nations makes it very clear that all parties in the legislative and executive branches understood that the decision to use military force through the United Nations required prior approval from both Houses of Congress. (Louis Fisher, “The Korean War: On What Legal Basis Did Truman Act?,” The American Journal of International Law Vol 89, No. 1 (Jan. 1995), pp. 21-39.)
|
During a 1945 floor debate in the Senate regarding the war power, the United Nations Charter, and whether treaties (ratified by the Senate only) could commit the U.S. to military action, several senators objected to the notion that the U.S. could be bound by a treaty to commit military troops in the future. For instance, Senator Harlan Bushfield (R., S.D.) said he objected, “and I still object, to a delegation of power to one man or to the Security Council, composed of 10 foreigners and 1 American, to declare war and to take American boys into war.” Such a proposal, according to Sen. Bushfield, “is in direct violation of the Constitution.”
Truman’s disregard of the need for a congressional declaration of war (or at least a decision by Congress to initiate war) set a tragic precedent. Since 1789, Congress has declared war 11 times, during five separate conflicts, the War of 1812; the Mexican-American War; the Spanish-American War; World War I, and World War II. Not since World War II has there been a declaration of war prior to any military conflicts.
Had Congress undertaken to fulfill its responsibilities under the War Power Clause and, after becoming fully informed about the contemporaneous facts, make a determination about whether war should be commenced, it seems likely the disastrous Vietnam and Iraq Wars would never have occurred. The final determination to initiate those wars was made by the sitting presidents, President Lyndon Johnson and President George W. Bush, both of whom conveyed serious factual misrepresentations to the public.
The trend started by Truman of ignoring any need for a congressional determination as to whether war should be commenced has continued and dangerously escalated. Presidents have acted as elected Monarchs, determining when and under what circumstances the U.S. will go to war, without regard to any determination by Congress.
For instance, President Regan directed the invasion of Grenada in 1983, purporting to act only “with respect to the conduct of foreign relations and as Commander-in-Chief of the United States Armed Forces,” without seeking even congressional ratification of his actions. In 1986, he unilaterally ordered the bombing of several targets in Libya, purporting to do so pursuant to his power as Commander-in-Chief.
President George H.W. Bush sent 24,000 troops into Panama to oust the government of General Manuel Noriega, without seeking congressional approval. Later, as the same Bush administration was about to launch the first Gulf War, it initially claimed that it would not seek congressional approval. At one point, President Bush blustered, “I didn’t have to get permission from some old goat in the United States Congress to kick Saddam Hussein out of Kuwait.”
After President George H.W. Bush sent U.S. troops to Somalia as part of a United Nations relief effort, the nature of that assignment of troops was unilaterally transformed into a military operation by President Bill Clinton. The next year, President Clinton prepared to send troops into Haiti to force out the country’s military junta without receiving congressional approval. In contempt of the role of Congress in initiating war or acts of war, he stated: “Like my predecessors of both parties, I have not agreed that I was constitutionally mandated” to obtain congressional approval before military intervention. The military action ordered by President Clinton in Bosnia constituted an even more aggressive assertion of executive authority over the military because U.S. troops were deployed into a war zone pursuant to President Clinton’s order, not only without congressional approval, but in conflict with the repeated objections of the House of Representatives.[1]
Truman’s disregard of the need for a congressional declaration of war (or at least a decision by Congress to initiate war) set a tragic precedent. Since 1789, Congress has declared war 11 times, during five separate conflicts, the War of 1812; the Mexican-American War; the Spanish-American War; World War I, and World War II. Not since World War II has there been a declaration of war prior to any military conflicts.
Had Congress undertaken to fulfill its responsibilities under the War Power Clause and, after becoming fully informed about the contemporaneous facts, make a determination about whether war should be commenced, it seems likely the disastrous Vietnam and Iraq Wars would never have occurred. The final determination to initiate those wars was made by the sitting presidents, President Lyndon Johnson and President George W. Bush, both of whom conveyed serious factual misrepresentations to the public.
The trend started by Truman of ignoring any need for a congressional determination as to whether war should be commenced has continued and dangerously escalated. Presidents have acted as elected Monarchs, determining when and under what circumstances the U.S. will go to war, without regard to any determination by Congress.
For instance, President Regan directed the invasion of Grenada in 1983, purporting to act only “with respect to the conduct of foreign relations and as Commander-in-Chief of the United States Armed Forces,” without seeking even congressional ratification of his actions. In 1986, he unilaterally ordered the bombing of several targets in Libya, purporting to do so pursuant to his power as Commander-in-Chief.
President George H.W. Bush sent 24,000 troops into Panama to oust the government of General Manuel Noriega, without seeking congressional approval. Later, as the same Bush administration was about to launch the first Gulf War, it initially claimed that it would not seek congressional approval. At one point, President Bush blustered, “I didn’t have to get permission from some old goat in the United States Congress to kick Saddam Hussein out of Kuwait.”
After President George H.W. Bush sent U.S. troops to Somalia as part of a United Nations relief effort, the nature of that assignment of troops was unilaterally transformed into a military operation by President Bill Clinton. The next year, President Clinton prepared to send troops into Haiti to force out the country’s military junta without receiving congressional approval. In contempt of the role of Congress in initiating war or acts of war, he stated: “Like my predecessors of both parties, I have not agreed that I was constitutionally mandated” to obtain congressional approval before military intervention. The military action ordered by President Clinton in Bosnia constituted an even more aggressive assertion of executive authority over the military because U.S. troops were deployed into a war zone pursuant to President Clinton’s order, not only without congressional approval, but in conflict with the repeated objections of the House of Representatives.[1]
|
|
|
|
|
|
|
|
|
The U.S. Presidents pictured above Harry Truman; Lyndon B. Johnson; Richard Nixon; Ronald Reagan; George H.W. Bush; William J. Clinton; George W. Bush; Barack Obama; and Donald Trump are examples of Presidents who have made decisions to go to war or to engage in acts of war without the sanction of Congress.
[1] The above are simply a few of many examples of unilateral presidential decisions to go to war or to engage in acts of war without the sanction of Congress. These examples are described in William Michael Treanor, “Fame, the Founding, and the Power to Declare War,” 82 Cornell L. Rev. 695–772 (1997).
