The UN & NATO authorize our wars, not Congress

So says our Secretary of Defense and the Chairman of the Joint Chiefs:

The Obama administration and Defense Secretary Panetta are contending that when offensive military action is needed, it does not have to go to Congress first for permission but that international agreements, the UN or NATO can override Congressional acts of authorization of war or use of force.

At a hearing that was held in Washington on March 7, 2012, Sen. Sessions of the Senate Armed Services Committee questioned not only Defense Secretary Leon Panetta but also of Joint Chiefs of Staff Chairman Gen. Martin Dempsey about offensive military action and the permissions that are needed.

Both Panetta and General Dempsey indicated that “international permission,” rather than Congressional approval, provided a ‘legal basis’ for military action by the United States.

In other words, they explained that they didn’t need permission by the Congress and can pursue offensive military action without Congress’ involvement and that the UN would dictate when and how the hostilities would occur, therefore bypassing the War Powers Act.

via Panetta: ‘Use of military force can be granted by UN or NATO, not Congress’ – Atlanta Paulding County Republican | Examiner.com.

Nevermind the Constitution, which as a War Powers Clause that specifically invests the power to make war with Congress:

[Congress shall have Power...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.
Article I, Section 8, Clause 11

That’s Congress and not the Executive branch–even though presidents have been running roughshod over this Constitutional requirement for our last several wars–and certainly not international agencies!

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • Carl Vehse

    Rep. Walter B Jones Jr. (R, NC-3) has submitted House Congressional Resolution 107 that states if Barry Hussein 0bama starts a war without the approval of Congress it would be an impeachable high crime and misdemeanor. under article II, section 3 of the Constitution.

    Apparently all the other times Barry Hussein has wipe his keister with the Constitution don’t count.

  • Carl Vehse

    Rep. Walter B Jones Jr. (R, NC-3) has submitted House Congressional Resolution 107 that states if Barry Hussein 0bama starts a war without the approval of Congress it would be an impeachable high crime and misdemeanor. under article II, section 3 of the Constitution.

    Apparently all the other times Barry Hussein has wipe his keister with the Constitution don’t count.

  • SKPeterson

    The only issue I have with that Carl is that if it is President Mitt doing the same thing – that law will have oodles of Republicans dismissing it as not applicable to whatever situation will require U.S. intervention. Republicans have proven over and over that they are “do as I say, not as I do” when it comes to the Constitution. I’ll also add that the bases for the pretexts the Obama administration is using to justify this position were put in place by the Bush II administration. Jones is also one of the few Paul allies in Congress – this bill will go absolutely nowhere because it would (legitimately) inhibit a President’s freedom of action (which he’s not really supposed to have much of).

  • SKPeterson

    The only issue I have with that Carl is that if it is President Mitt doing the same thing – that law will have oodles of Republicans dismissing it as not applicable to whatever situation will require U.S. intervention. Republicans have proven over and over that they are “do as I say, not as I do” when it comes to the Constitution. I’ll also add that the bases for the pretexts the Obama administration is using to justify this position were put in place by the Bush II administration. Jones is also one of the few Paul allies in Congress – this bill will go absolutely nowhere because it would (legitimately) inhibit a President’s freedom of action (which he’s not really supposed to have much of).

  • Carl Vehse

    SKPeterson @2: “Republicans have proven over and over that they are “do as I say, not as I do” when it comes to the Constitution.”

    With respect to conducting war operations, what evidence do you have? When Bush II was president he repeatedly got the backing of Congress through the War Powers Act, even though some questioned its constitutionality. And although he initially claimed he didn’t need it, Bush I did ask for Congressional support for the 1st Gulf War.

    It was Monica’s ex-boyfriend who carried out a war in the former Yugoslavia without obtaining War Powers Act support, forcing a Court battle in which a D.C. Appeals Court ruled that Congress doesn’t have the constitutional standing to bring a suit on a constitutional issue. The SCOTUS justices, while continuing to accept their paychecks, refused to get involved.

  • Carl Vehse

    SKPeterson @2: “Republicans have proven over and over that they are “do as I say, not as I do” when it comes to the Constitution.”

    With respect to conducting war operations, what evidence do you have? When Bush II was president he repeatedly got the backing of Congress through the War Powers Act, even though some questioned its constitutionality. And although he initially claimed he didn’t need it, Bush I did ask for Congressional support for the 1st Gulf War.

    It was Monica’s ex-boyfriend who carried out a war in the former Yugoslavia without obtaining War Powers Act support, forcing a Court battle in which a D.C. Appeals Court ruled that Congress doesn’t have the constitutional standing to bring a suit on a constitutional issue. The SCOTUS justices, while continuing to accept their paychecks, refused to get involved.

  • Arfies

    As I understand it, international treaties do supersede much if not all of Congressional law; but current questions and situations seem to indicate that we might do well to revise or replace the current Constitution.

  • Arfies

    As I understand it, international treaties do supersede much if not all of Congressional law; but current questions and situations seem to indicate that we might do well to revise or replace the current Constitution.

  • kerner

    Look, guys, including Dr. Veith, I am no friend of our curent president, and I will do all in my power to oppose him between now and November. But this is a bogus reason to go after him.

    First of all, every Republican president who has preceded Obama, at least since 1950, has taken the position that the President of the United States, as Commander in Chief of the Armed forces, does not have to seek a declaration of war from Congress prior to using militarty force. And conservative talk radio, etc. has supported every Republican president who has done this, and a lot of them have done it.

    Further, the phrase “Congress shall have the power” indicates that Congress CAN do this if it chooses to, but it does not indicate that Congress has the EXCLUSIVE power to authorize military actions. As far as I know, all the various Indian wars lacked a formal declaration (as if any of the Indian tribes had an ambassador to deliver such a declaration to),as did the US war against the Philippine insurgents, the various uses of military force in Mexico and Central America and the Carribean during the early part of the 20th Century, and the use of the USMC to defend US citizens during the Boxer rebellion in China and the US Navy gunboats on Chinese rivers for 30 years thereafter. And there are probably some undeclared US military actions that I have missed.

    Second, a formal declaration of war is a political anachronism. Not one government anywhere in the world that I know of has done it since 1945. The formal announcement “A state of war exists between Nation X and Nation Y” was a function of statecraft in an era long gone by, and it had little or nothing to do with the internal power structure of the governments who used to make such announcements. It had to do with some sense of fair play between organized nations in a so-called civilized world. In today’s world, where military forces are often not formally organized nor even necessarilly affiliated with an organized government, I am not even sure how this would work if we wanted to do it anymore.

    Third (or perhaps 2.1) look at the other things in that “Congress shall have the power…” to do. Grant Letters of Marque and Reprisal, for example. This refers to commissioning privateers (privately owned sea going ships) to be armed by their private owners and with non-military crews attack the naval and merchant shipping of the enemy. Do we see any of that going on today? No, it hasn’t happened since the War of 1812. Yet we do authorize “private security contractors” to operate in areas where we don’t want to use our troops.

    The one negative power (as opposed to the affirmative power that a declaration of war is) that Congress has and can insist upon if it wants to, is the power to withhold funding for certain military adventures. Congress could always do this, and could have done so at anytime during the last 70 years, but Congress has never done it for political reasons (Whaddya mean you’re gonna defund our boys while they’re on the battle field?!?!?!).

    The war powers act is something else again, and I don’t know how that plays off our treaty obligations. But All this Constitutional angst over a President authorizing military force without a formal Congressional Declaration of War is barking up the wrong tree.

    There are plenty of legitimate reasons to criticize President Obama. Find one and go to town.

  • http://www.facebook.com/mesamike Mike Westfall

    It’s not a war, it’s a “police action!”

  • kerner

    Look, guys, including Dr. Veith, I am no friend of our curent president, and I will do all in my power to oppose him between now and November. But this is a bogus reason to go after him.

    First of all, every Republican president who has preceded Obama, at least since 1950, has taken the position that the President of the United States, as Commander in Chief of the Armed forces, does not have to seek a declaration of war from Congress prior to using militarty force. And conservative talk radio, etc. has supported every Republican president who has done this, and a lot of them have done it.

    Further, the phrase “Congress shall have the power” indicates that Congress CAN do this if it chooses to, but it does not indicate that Congress has the EXCLUSIVE power to authorize military actions. As far as I know, all the various Indian wars lacked a formal declaration (as if any of the Indian tribes had an ambassador to deliver such a declaration to),as did the US war against the Philippine insurgents, the various uses of military force in Mexico and Central America and the Carribean during the early part of the 20th Century, and the use of the USMC to defend US citizens during the Boxer rebellion in China and the US Navy gunboats on Chinese rivers for 30 years thereafter. And there are probably some undeclared US military actions that I have missed.

    Second, a formal declaration of war is a political anachronism. Not one government anywhere in the world that I know of has done it since 1945. The formal announcement “A state of war exists between Nation X and Nation Y” was a function of statecraft in an era long gone by, and it had little or nothing to do with the internal power structure of the governments who used to make such announcements. It had to do with some sense of fair play between organized nations in a so-called civilized world. In today’s world, where military forces are often not formally organized nor even necessarilly affiliated with an organized government, I am not even sure how this would work if we wanted to do it anymore.

    Third (or perhaps 2.1) look at the other things in that “Congress shall have the power…” to do. Grant Letters of Marque and Reprisal, for example. This refers to commissioning privateers (privately owned sea going ships) to be armed by their private owners and with non-military crews attack the naval and merchant shipping of the enemy. Do we see any of that going on today? No, it hasn’t happened since the War of 1812. Yet we do authorize “private security contractors” to operate in areas where we don’t want to use our troops.

    The one negative power (as opposed to the affirmative power that a declaration of war is) that Congress has and can insist upon if it wants to, is the power to withhold funding for certain military adventures. Congress could always do this, and could have done so at anytime during the last 70 years, but Congress has never done it for political reasons (Whaddya mean you’re gonna defund our boys while they’re on the battle field?!?!?!).

    The war powers act is something else again, and I don’t know how that plays off our treaty obligations. But All this Constitutional angst over a President authorizing military force without a formal Congressional Declaration of War is barking up the wrong tree.

    There are plenty of legitimate reasons to criticize President Obama. Find one and go to town.

  • http://www.facebook.com/mesamike Mike Westfall

    It’s not a war, it’s a “police action!”

  • Carl Vehse

    International treaties do not supercede the U.S. Constitution and the treaties can be modified or repealed by subsequent legislative action.

  • Carl Vehse

    International treaties do not supercede the U.S. Constitution and the treaties can be modified or repealed by subsequent legislative action.

  • kerner

    CV@7: ” treaties can be modified or repealed by subsequent legislative action.”

    Which is exactly what Congress should be doing if it doesn’t like what our treaty obligatios are. Not bloviating about Constitutional issues that do not exist.

  • kerner

    CV@7: ” treaties can be modified or repealed by subsequent legislative action.”

    Which is exactly what Congress should be doing if it doesn’t like what our treaty obligatios are. Not bloviating about Constitutional issues that do not exist.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    “Nevermind the Constitution, which as a War Powers Clause that specifically invests the power to make war with Congress”

    It seems those in Congress do not wish to embrace this authority. They don’t want the blame.

  • http://www.biblegateway.com/versions/Contemporary-English-Version-CEV-Bible/ sg

    “Nevermind the Constitution, which as a War Powers Clause that specifically invests the power to make war with Congress”

    It seems those in Congress do not wish to embrace this authority. They don’t want the blame.

  • http://www.toddstadler.com/ tODD

    I think Kerner covered the topic more broadly (@5), but I didn’t see him quite address this, so…

    Who, exactly, do you think entered us into NATO, Dr. Veith? That’s right, the Senate, by far more than the 2/3 vote required by the Constitution.

    So if the treaty we entered into obligates us to fight a war to defend our fellow NATO members … how exactly does that ignore Congress’ will? And how is that unconstitutional?

    If we don’t like the obligations of our treaties, perhaps we should ask Congress to remove us from them?

  • http://www.toddstadler.com/ tODD

    I think Kerner covered the topic more broadly (@5), but I didn’t see him quite address this, so…

    Who, exactly, do you think entered us into NATO, Dr. Veith? That’s right, the Senate, by far more than the 2/3 vote required by the Constitution.

    So if the treaty we entered into obligates us to fight a war to defend our fellow NATO members … how exactly does that ignore Congress’ will? And how is that unconstitutional?

    If we don’t like the obligations of our treaties, perhaps we should ask Congress to remove us from them?

  • http://www.toddstadler.com/ tODD

    Ah, I now see Kerner made that exact point (@8).

  • http://www.toddstadler.com/ tODD

    Ah, I now see Kerner made that exact point (@8).

  • DonS

    This issue has been overblown, partially because Mr. Panetta was particularly inartful in his response.

    Normally, in these types of hearings, it is better practice to avoid specifically answering hypotheticals, which is what was being posed in the questions. Panetta should probably have given a response indicating that the administration conducts its war policy in full compliance with the Constitution, War Powers Act, and U.S. obligations under international treaties and let it go at that. When pressed, he should have requested specifics from the questioner to help him properly formulate his answer.

    The President is authorized under both the War Powers Act and the Constitution to take any action necessary to protect the immediately threatened interests of the U.S., which can include, because of treaty obligations, the interests of U.S. allies. If interests are not immediately threatened, he is supposed to first obtain the consent of Congress. This is where the conflict usually arises — what constitutes an immediate threat to U.S. interests which does not permit prior consultation with Congress? That’s a very subjective question. One of the things presidents are wary of is Congress’ demonstrated inability to keep state secrets. Leaks are inevitable once matters reach the Hill, which can compromise a planned mission.

    Ultimately, all presidents have to obtain at least implicit permission of Congress to conduct a war, because they need funding. I think in this case, the non-John McCain wing of the party was upset that Obama did not adequately consult Congress about the whole Libya mess and why we were involved in it, yet seemed to be working closely with foreign agencies, particularly NATO.

  • DonS

    This issue has been overblown, partially because Mr. Panetta was particularly inartful in his response.

    Normally, in these types of hearings, it is better practice to avoid specifically answering hypotheticals, which is what was being posed in the questions. Panetta should probably have given a response indicating that the administration conducts its war policy in full compliance with the Constitution, War Powers Act, and U.S. obligations under international treaties and let it go at that. When pressed, he should have requested specifics from the questioner to help him properly formulate his answer.

    The President is authorized under both the War Powers Act and the Constitution to take any action necessary to protect the immediately threatened interests of the U.S., which can include, because of treaty obligations, the interests of U.S. allies. If interests are not immediately threatened, he is supposed to first obtain the consent of Congress. This is where the conflict usually arises — what constitutes an immediate threat to U.S. interests which does not permit prior consultation with Congress? That’s a very subjective question. One of the things presidents are wary of is Congress’ demonstrated inability to keep state secrets. Leaks are inevitable once matters reach the Hill, which can compromise a planned mission.

    Ultimately, all presidents have to obtain at least implicit permission of Congress to conduct a war, because they need funding. I think in this case, the non-John McCain wing of the party was upset that Obama did not adequately consult Congress about the whole Libya mess and why we were involved in it, yet seemed to be working closely with foreign agencies, particularly NATO.

  • http://www.redeemedrambling.blogspot.com/ John

    I see two issues here. The first was well addressed by Kerner, but more succinct in tODD #10.

    The second is a bit more thorny. What if the White House decides to invade, say, Panama. Further suppose that this time the President isn’t so clandestine about our operations. What do we do about it?

  • http://www.redeemedrambling.blogspot.com/ John

    I see two issues here. The first was well addressed by Kerner, but more succinct in tODD #10.

    The second is a bit more thorny. What if the White House decides to invade, say, Panama. Further suppose that this time the President isn’t so clandestine about our operations. What do we do about it?

  • Joe

    I disagree with Kerner’s non-exclusive reading of the power to declare war – but that is beside the point.

    Having watched the testimony – Panetta did not actually say what he has been accused of saying. At least not in any clear fashion.

    What I heard him say, was that the President can take action if it is necessary to defend from an immediate threat. And, in other situations – i.e. where there is no immediate threat but our interests may be involved that they would seek approval from NATO or UN because they would only want to carry out those non-essential to our survival missions in the context of a coalition. At this point the two men started talking past each other.

    What went unaddressed was whether the Administration would also seek approval from Congress. Or if it thought international approval was ALL that was required.

  • Joe

    I disagree with Kerner’s non-exclusive reading of the power to declare war – but that is beside the point.

    Having watched the testimony – Panetta did not actually say what he has been accused of saying. At least not in any clear fashion.

    What I heard him say, was that the President can take action if it is necessary to defend from an immediate threat. And, in other situations – i.e. where there is no immediate threat but our interests may be involved that they would seek approval from NATO or UN because they would only want to carry out those non-essential to our survival missions in the context of a coalition. At this point the two men started talking past each other.

    What went unaddressed was whether the Administration would also seek approval from Congress. Or if it thought international approval was ALL that was required.

  • http://www.whenisayrunrun.blogspot.com Andrew

    Maybe my students were right this year. Why do we have to learn about the Constitution? I had a good answer for them, but maybe they were right after all.

  • http://www.whenisayrunrun.blogspot.com Andrew

    Maybe my students were right this year. Why do we have to learn about the Constitution? I had a good answer for them, but maybe they were right after all.

  • George

    It is my understanding of the constitution that only Congress may declare war.

    As for everything above, just because we haven’t done this doesn’t mean its a particularly bad idea. I, for one, support the idea of war powers being situated in the congress.

    So if it is in the constitution, I say good, we should follow it. If not, I say we should adopt it.

    Who’s with me! Ecrasez L’infame!

  • George

    It is my understanding of the constitution that only Congress may declare war.

    As for everything above, just because we haven’t done this doesn’t mean its a particularly bad idea. I, for one, support the idea of war powers being situated in the congress.

    So if it is in the constitution, I say good, we should follow it. If not, I say we should adopt it.

    Who’s with me! Ecrasez L’infame!

  • Carl Vehse

    “What if the White House decides to invade, say, Panama”

    Read the War Powers Act.

  • Carl Vehse

    “What if the White House decides to invade, say, Panama”

    Read the War Powers Act.

  • Truth Unites… and Divides

    Kerner, #5: “Look, guys, including Dr. Veith, I am no friend of our curent president, and I will do all in my power to oppose him between now and November.”

    Do your utmost, Kerner!

  • Truth Unites… and Divides

    Kerner, #5: “Look, guys, including Dr. Veith, I am no friend of our curent president, and I will do all in my power to oppose him between now and November.”

    Do your utmost, Kerner!

  • kerner

    Joe @14:

    In what may be typical lawyer nitpicking. I never said that the President has the power to “declare war”, or that Congress’ power to declare war is “non-exclusive”. But the power to “declare war” is different than the power to actually use military force. Tthe power to declare (that is make a formal statement about something) is different than the power to act. The power to command the military (i.e. the power to order them to go somewhere abroad and shoot somebody) is vested in the Commander in Chief. The power to formally say “the United States is at war with you, Nation X” is vested in Congress. Clearly the power to actually order the military to shoot at foreigners has a lot more practical significance than the power to make formal statements about it. This is particularly true in a global culture in which nobody, and I mean nobody, makes that kind of formal statement about war anymore, and no government expects to receive one. They all just pull the trigger, or shoot back when shot at.

    The converse is also true. If Congress were to “declare war” on a foreign country, it could not force the “commander in chief” to actually attack that country. How to actually proceed would be left up to the president, and he could start peace negotiations the next day if he wanted to. Now, practically speaking, we have traditionally understood that Congress DOES have to power to pay for, or not pay for, war (along with everything else), and this combined with the formal (but not much beyond that) power to declare war has caused presidents to usually consult with Congress before committing troops to any maneuver that is going to take any extended length of time or very much money. And this is a good thing. But I just don’t see in the Constitution a requirement that there be a formal declaration of war before an American soldier can Constitutionally fire a shot.

  • kerner

    Joe @14:

    In what may be typical lawyer nitpicking. I never said that the President has the power to “declare war”, or that Congress’ power to declare war is “non-exclusive”. But the power to “declare war” is different than the power to actually use military force. Tthe power to declare (that is make a formal statement about something) is different than the power to act. The power to command the military (i.e. the power to order them to go somewhere abroad and shoot somebody) is vested in the Commander in Chief. The power to formally say “the United States is at war with you, Nation X” is vested in Congress. Clearly the power to actually order the military to shoot at foreigners has a lot more practical significance than the power to make formal statements about it. This is particularly true in a global culture in which nobody, and I mean nobody, makes that kind of formal statement about war anymore, and no government expects to receive one. They all just pull the trigger, or shoot back when shot at.

    The converse is also true. If Congress were to “declare war” on a foreign country, it could not force the “commander in chief” to actually attack that country. How to actually proceed would be left up to the president, and he could start peace negotiations the next day if he wanted to. Now, practically speaking, we have traditionally understood that Congress DOES have to power to pay for, or not pay for, war (along with everything else), and this combined with the formal (but not much beyond that) power to declare war has caused presidents to usually consult with Congress before committing troops to any maneuver that is going to take any extended length of time or very much money. And this is a good thing. But I just don’t see in the Constitution a requirement that there be a formal declaration of war before an American soldier can Constitutionally fire a shot.

  • helen

    kerner @ 19
    But I just don’t see in the Constitution a requirement that there be a formal declaration of war before an American soldier can Constitutionally fire a shot.

    If Congress had to declare war and vote on the record, we’d have far fewer wasted lives on lost causes, starting at least with Viet Nam.
    [Viet Nam would have been solved with good will for us, if we'd told the French to get out of there post WW II, as we told the Dutch in Indonesia. We were begged to help and deferred to De Gaulle.]

  • helen

    kerner @ 19
    But I just don’t see in the Constitution a requirement that there be a formal declaration of war before an American soldier can Constitutionally fire a shot.

    If Congress had to declare war and vote on the record, we’d have far fewer wasted lives on lost causes, starting at least with Viet Nam.
    [Viet Nam would have been solved with good will for us, if we'd told the French to get out of there post WW II, as we told the Dutch in Indonesia. We were begged to help and deferred to De Gaulle.]

  • J.McIntosh

    Congress was not solicited nor did it give approval for the military action in Libya. And Libya is now a mess. Before Libya may have not been free but it was somewhat stable and people had some kind of life. Today the country is falling apart and torn in the midst of rival factions.

  • J.McIntosh

    Congress was not solicited nor did it give approval for the military action in Libya. And Libya is now a mess. Before Libya may have not been free but it was somewhat stable and people had some kind of life. Today the country is falling apart and torn in the midst of rival factions.

  • http://www.redeemedrambling.blogspot.com/ John

    Carl, 17 … hasn’t worked yet.

  • http://www.redeemedrambling.blogspot.com/ John

    Carl, 17 … hasn’t worked yet.

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  • Cincinnatus

    The power to declare a formal state of war is a mere “anachronism”? Egads, kerner. I would expect a bit more foresight from you. The reason paleoconservatives cling to this particular anachronism is because it is one of the few tangible bulwarks against excessive executive prerogative in the Constitution. You say no other nation has formally declared war since 1945 (that’s not true, by the way)? All the worse for them. The fact that Congress has ceded almost all its war-making powers to the President and to international bodies is a catastrophe, and is a major causal explanation for our current predicament vis-a-vis the “military-industrial complex.”

  • Cincinnatus

    The power to declare a formal state of war is a mere “anachronism”? Egads, kerner. I would expect a bit more foresight from you. The reason paleoconservatives cling to this particular anachronism is because it is one of the few tangible bulwarks against excessive executive prerogative in the Constitution. You say no other nation has formally declared war since 1945 (that’s not true, by the way)? All the worse for them. The fact that Congress has ceded almost all its war-making powers to the President and to international bodies is a catastrophe, and is a major causal explanation for our current predicament vis-a-vis the “military-industrial complex.”

  • Joe

    “But the power to “declare war” is different than the power to actually use military force. Tthe power to declare (that is make a formal statement about something) is different than the power to act.”

    Kerner – that is not nitpicking its rationalizing away the meaning of the words of the Constitution. In the time of our founding it would have been almost (I say almost) inconceivable to engage in a military operation without a declaration of war. You say, well since people just don’t go around declaring war any more this language no longer means what it used to. But that is a false interpretation. The words mean and will always mean what they meant when written, not what they mean (or not mean) if they were written today. If we don’t like the meaning anymore we are free to amendment it. We are not free to ignore it whether we can rationalize it or not.

  • Joe

    “But the power to “declare war” is different than the power to actually use military force. Tthe power to declare (that is make a formal statement about something) is different than the power to act.”

    Kerner – that is not nitpicking its rationalizing away the meaning of the words of the Constitution. In the time of our founding it would have been almost (I say almost) inconceivable to engage in a military operation without a declaration of war. You say, well since people just don’t go around declaring war any more this language no longer means what it used to. But that is a false interpretation. The words mean and will always mean what they meant when written, not what they mean (or not mean) if they were written today. If we don’t like the meaning anymore we are free to amendment it. We are not free to ignore it whether we can rationalize it or not.

  • kerner

    Cin:

    Well, when making a negative statement the “no one has done something since 1945″ I could always be wrong. So, what country has “declared wart” on another since 1945?

    Joe: “In the time of our founding it would have been almost (I say almost) inconceivable to engage in a military operation without a declaration of war”

    Really? How many of these military operations occurred only after a formal declaration of war? I grant you many of them are minor, but a lot of them went on for years.

    http://en.wikipedia.org/wiki/Timeline_of_United_States_military_operations

  • kerner

    Cin:

    Well, when making a negative statement the “no one has done something since 1945″ I could always be wrong. So, what country has “declared wart” on another since 1945?

    Joe: “In the time of our founding it would have been almost (I say almost) inconceivable to engage in a military operation without a declaration of war”

    Really? How many of these military operations occurred only after a formal declaration of war? I grant you many of them are minor, but a lot of them went on for years.

    http://en.wikipedia.org/wiki/Timeline_of_United_States_military_operations

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  • Joe

    Kerner – Past practice is certainly important but not dispositive of the right answer. A string of violations doesn’t make an amendment. But also the quality of the list is pretty varied. It includes the deployment of a battleship into the headwaters of the Columbia river. There was no fighting and a treaty was signed by the British and US resolving disputed land claims.

    But I think we agree on this. If we are invaded the Pres can act without going to congress. Indeed, the point of a declaration of war is for Congress to acknowledge that a State of War already exists. That is why the declaration in 1945 came after we were attacked not before.

    Our founders never envisioned us as the world’s policemen or the as the invading force. So I guess I would amend my previous comment. You are correct in that a declaration of war doesn’t always proceed (nor be appropriate for each) military action in which we are either the aggressor or have inserted ourselves in to someone else’s war. I think it is more likley that this is true not because the founders wanted a super-strong C-I-C who could embroil us in conflicts across the globe but because the use of our military in such manners was never contemplated by the founders and thus, these actions are constitutionally dubious.

  • Joe

    Kerner – Past practice is certainly important but not dispositive of the right answer. A string of violations doesn’t make an amendment. But also the quality of the list is pretty varied. It includes the deployment of a battleship into the headwaters of the Columbia river. There was no fighting and a treaty was signed by the British and US resolving disputed land claims.

    But I think we agree on this. If we are invaded the Pres can act without going to congress. Indeed, the point of a declaration of war is for Congress to acknowledge that a State of War already exists. That is why the declaration in 1945 came after we were attacked not before.

    Our founders never envisioned us as the world’s policemen or the as the invading force. So I guess I would amend my previous comment. You are correct in that a declaration of war doesn’t always proceed (nor be appropriate for each) military action in which we are either the aggressor or have inserted ourselves in to someone else’s war. I think it is more likley that this is true not because the founders wanted a super-strong C-I-C who could embroil us in conflicts across the globe but because the use of our military in such manners was never contemplated by the founders and thus, these actions are constitutionally dubious.

  • http://www.toddstadler.com/ tODD

    Joe, I think I get your point, and maybe you’ve moved on beyond the original topic here. But, well, as to the original topic, isn’t it still true that any wars we engage in as part of the NATO treaty are outside of your argument, being part of the obligations of a treaty that was ratified in a very constitutional way by the Senate?

  • http://www.toddstadler.com/ tODD

    Joe, I think I get your point, and maybe you’ve moved on beyond the original topic here. But, well, as to the original topic, isn’t it still true that any wars we engage in as part of the NATO treaty are outside of your argument, being part of the obligations of a treaty that was ratified in a very constitutional way by the Senate?

  • Joe

    tODD – that is a good question and one to which the answer is maybe. There is a legitimate debate about whether a treaty is binding and/or lawful (even if it is ratified) if it contradicts or expands the enumerated powers of the Fed or the language of teh. One school says, a treaty is “supreme” as in equal to or above the constitutional dictates. The other school says no, “supreme” simply means a treaty properly entered into (think procedure) and of a lawful scope (doesn’t exceed or contradict the constitution) is supreme over the States.

    I have not studied this debate in detail but at first blush the latter position seems to make more sense to me. It would explain why only the Senate ratifies a treaty. At the time of the founding (pre-17th amendment) Senators were elected by the state legislatures and were the voice of the states, not the people, at the federal level. So ratification gave the states a voice in a treaty that would rule over them. It also comports with the idea of a limited gov’t. If it really meant supreme – as in can displace the constitution’s express provisions – it would render the constitution a nullity.

  • Joe

    tODD – that is a good question and one to which the answer is maybe. There is a legitimate debate about whether a treaty is binding and/or lawful (even if it is ratified) if it contradicts or expands the enumerated powers of the Fed or the language of teh. One school says, a treaty is “supreme” as in equal to or above the constitutional dictates. The other school says no, “supreme” simply means a treaty properly entered into (think procedure) and of a lawful scope (doesn’t exceed or contradict the constitution) is supreme over the States.

    I have not studied this debate in detail but at first blush the latter position seems to make more sense to me. It would explain why only the Senate ratifies a treaty. At the time of the founding (pre-17th amendment) Senators were elected by the state legislatures and were the voice of the states, not the people, at the federal level. So ratification gave the states a voice in a treaty that would rule over them. It also comports with the idea of a limited gov’t. If it really meant supreme – as in can displace the constitution’s express provisions – it would render the constitution a nullity.

  • kerner

    Joe:

    I don’t want to give the impression that I believe that the president’s power to command the military is unrestricted. I agree with a lot of what you say. I learned while researching this that, in some of our early undeclared wars, Congress authorized the military actions by statute, but placed limitations on them. This seems to me to be a perfectly Constitutional check and balance on the President’s Constitutional authority. As is Congress contol over military funding.

    I just think that this mantra we hear to the effect that the President has no authority to order the military into action without Congress first formally declaring war is simplistic, and not really how the founders operated in the very early years of our republic. And as tODD says, I’m pretty sure Congress can repudiate treaties that bind us to fight wars we don’t want to be in.

    And I really support your statement that elevating treaties over the Constitution would render it a nullity. That would be negotiating away out sovereignty, and I absolutely agree that the Constitution does not do away with itself.

  • kerner

    Joe:

    I don’t want to give the impression that I believe that the president’s power to command the military is unrestricted. I agree with a lot of what you say. I learned while researching this that, in some of our early undeclared wars, Congress authorized the military actions by statute, but placed limitations on them. This seems to me to be a perfectly Constitutional check and balance on the President’s Constitutional authority. As is Congress contol over military funding.

    I just think that this mantra we hear to the effect that the President has no authority to order the military into action without Congress first formally declaring war is simplistic, and not really how the founders operated in the very early years of our republic. And as tODD says, I’m pretty sure Congress can repudiate treaties that bind us to fight wars we don’t want to be in.

    And I really support your statement that elevating treaties over the Constitution would render it a nullity. That would be negotiating away out sovereignty, and I absolutely agree that the Constitution does not do away with itself.


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