THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Volume II, Issue # 1, June 10-December 31, 1999
Dr. Almon Leroy Way, Jr., Editor
Official declarations of war having been rendered obsolete by the technology and charactersitics of modern warfare, it should come as no great surprise to a person when he or she realizes that, during the fifty-three and one-half years following the close of World War II in 1945, the U.S.A. has been involved in numerous military conflicts abroad, including four major wars as well as many smaller-scale military interventions--not any of which (whether a major war or a smaller-scale military action) was associated with a congressional declaration of war.
The four major wars in which the U.S.A. has been directly involved during the past half century are listed below, the name of each war followed by the years of direct American military engagement.
1. The Korean War [1950-1953];
2. The Vietnam War (The Second Indochina War) [1961-1975];
3. The Persian Gulf War (Operation Desert Storm) [1991];
4. The Kosovo-Yugoslav War [1999].
As regards the Persian Gulf War and the Kosovo-Yugoslav War, American military action in each of these conflicts lasted less than a year. The wars in Korea and Vietnam, however, entailed much longer periods of U.S. military action, much greater costs to the American taxpayers, and many more casualties among American military personnel than did the wars in the Persian Gulf and Kosovo-Yugoslavia regions. The U.S. military action in Korea lasted three years and the one in Vietnam lasted fourteen years, making it America's longest and most drawn-out war--the longest and most drawn out war in the entire history of the U.S.A. as an independent, sovereign nation-state. Despite the length of the Korean and Vietnam Wars, neither President Harry S. Truman in 1950 nor President John F. Kennedy in 1961 bothered to request a congressional declaration of war, either before or after sending American troops into foreign hostilities. Likewise, President Lyndon B. Johnson, in 1964, did not recommend a declaration of war, before or after he ordered a substantial escalation of direct U.S. military involvement in the Vietnam War.
While Operation Desert Storm and U.S. military action in Kosovo and Serbia constituted much shorter periods of U.S. involvement in armed combat with foreign foes, both President George W. Bush in 1991 and President William J. Clinton in 1999 had ample time and opportunity, after war had begun, to recommend declarations of war--President Bush during the 42-day military campaign against the regime of Iraqi dictator Saddam Hussein and President Clinton during the 78-day aerial bombardment of Serbia and Serb military forces in Kosovo. However, such recommendations from the President were not forthcoming. (Qualification: In early May, 1999, during the aerial war in Yugoslavia, members of the U.S. House of Representatives, independently of presidential initiative or instigation, introduced into the House a resolution which, if it had been passed by both chambers of Congress and signed by the President, would officially declare that a state of war existed between the U.S.A. and Yugoslavia. The House, however, refused to pass the proposed declaration of war.)
Ergo, the port-World War II era has, thus far, been an era of wars without official declarations of war. Since 1945, the history of U.S.A. activity in the arena of international politics has been, among other things, the history of presidential war-making and U.S. actions abroad without congressional declarations of war. But what about the presence or absence of such phenomena during the entire history of the U.S.A. under the U.S. Constitution, from 1789 to 1999?
Throughout the history of the U.S.A. under the Federal Constitution, there have been hundreds of instances in which the nation's Armed Forces, operating solely on the basis of presidential orders and without the benefit of congressional declarations of war, were engaged in military conflict abroad. While most of these undeclared conflicts were short rather than protracted engagements, each beginning and ending so quickly that there was no opportunity for congressional consideration and approval of the President's action, Congress has not always declared war when the nation became involved in a longer, more drawn out conflict. In fact, Congress has declared war in only five of the thirteen major shooting wars in which the U.S.A. has been involved:
1. The War of 1812 against Great Britain [1812-1814]*;
2. The Mexican-U.S.A. War [1846-1848]*;
3. The Spanish-American War [1898]*;
4. World War I [1917-1918]*;
5. World War II [1941-1945]*.
*Dates of America's direct involvement in the war.
In each of the eight other major wars involving the U.S.A., Congress did not pass a declaration of war and the President did not recommend to Congress that it pass such a declaration. The eight undeclared major wars were:
1. The U.S. naval war with France [1798-1800]*;
2. The first war against the Barbary pirate states of
North Africa [1801-1805]*;
3. The second war against the Barbary states [1815]*;
4. The Mexican-U.S.A. conflicts immediately preceeding
American entrance into World War I [1914-1917]*;
5. The Korean War [1950-1953]*;
6. The Vietnam War [1961-1975]*;
7. The Persian Gulf War [1991]*;
8. The Kosovo-Yugoslav War [1999]*.
*Dates of America's direct involvement in the war.
The many other undeclared U.S. military actions overseas included armed intervention into--
A revolution in Hawaii [1893];
The Philippine Insurrection [1899-1902];
China during the Boxer Rebellion [1900];
The Moro Wars, suppressing a Muslim rebellion in the
Philippines [1901-1913];
The Panamaian rebellion, assisting the rebels in their
efforts to secede from Colombia [1903];
Cuba, to suppress a rebellion and restore order [1906-
1909];
Various rebellions and civil wars in Central America
[1909-1933];
Cuba, to "defuse" an armed uprising [1912];
Haiti, making it a virtual protectorate of the U.S.A.
[1915-1934];
The Dominican Republic, occupying the country until a
constitutionally elected government was installed
[1916-1924];
Cuba, to obtain the overthrow of a regime that had come
to power via an armed revolt and coup d'etat [1917];
The Russian Civil War, siding with the opponents of the
Bolshevik (Communist) regime [1919-1921];
Lebanon, to counter a Syrian-aided Muslim revolt and
restore order [1958];
A civil war in the Dominican Republic [1965];
Cambodia, destroying supply centers and staging areas for
North Vietnamese military operations in South Vietnam
during the Vietnam War [1969-1970];
Cambodia in the Mayaguez affair, forcing surrender of a
U.S. merchant ship and crew seized by Cambodian Communist
military forces [1975];
Iran, in an unsuccessful attempt to rescue the hostages
taken by Irani militants when, in 1979, they seized the
U.S. Embassy in Teheran [1980];
The armed struggle among political factions in Lebanon
[1982-1984];
Grenada, overthrowing the Marxist-Leninist, pro-Cuban
regime, expelling the Cuban agents and paramilitary
personnel, and allowing a political coalition committed
to democratic elections and favorably disposed toward
American interests to assume governing power [1983];
Panama, overthrowing the regime of dictator and narcotics
smuggler Manuel Noriega [1989];
Somalia, seeking to end the violence and disorder in
that East African country [1992-1994];
Haiti, to restore order and reinstate Jean-Bertrand
Aristide, the democratically elected President of the
country [1994];
The ethnic warfare in Bosnia, imposing a ceasefire
and, in effect, establishing a U.N.-U.S.A. protec-
torate over Bosnia [1994-1995].
These numerous undeclared U.S. military actions also included:
The naval war waged against German submarines and other
Axis naval craft in the North Atlantic immediately
prior to American entrance into World War II [1941];
The naval "quarantine" (i.e., blockade) maintained
around Cuba during the Cuban Missile Crisis [1962];
Aerial bombardment of Libya, striking a missile site
on one occasion and, on another, bombing terrorist-
related targets in Tripoli and Benghazi [1986];
"Operation Desert Shield"--President Bush's sending
U.S. troops to Saudi Arabia, in the wake of the Iraqi
occupation of and huge military buildup in Kuwait;
[1990]
The continuing presence of U.S. aircraft carriers in
the Persian Gulf and the maintenance of no-fly zones
over Iraq, the latter, in effect, establishing pro-
tectorates over Kurdish and Shiite regions of that
country; [1991-1999];
The U.S. missile attack on Iraq, launched on Presi-
dent Clinton's orders and aimed at the Iraqi govern-
ment's intelligence headquarters in Baghdad [1993];
Missile strikes against Iraqi military installations
in southern Iraq [1996];
Cruise missile attacks against terrorist-related
targets in Afghanistan and Sudan [1998].
The thirty-one military actions enumerated in the last two paragraphs are examples and do not constitute a comprehensive listing. As previously indicated, the U.S.A., throughout the course of its history, has been involved in hundreds of military conflicts abroad solely via presidential decision-making and action and without congressional declarations of war.
1. Hamilton's View of Presidential War-making Power
The foregoing review of the history of presidential behavior in the arena of international politics indicates that U.S. presidents have demonstrated a strong tendency to adhere to and act in accord with Alexander Hamilton's expansive view of the scope of presidential war-making authority under the U.S. Constitution. American presidents have been and are strongly inclined to apply to the fullest extent Hamilton's belief that--
"... it is the peculiar and exclusive province of Con-
Congress, when the nation is at pease, to change that
state [of peace] into a state of war ... [but] when a
foreign nation declares or openly and avowedly makes
war upon the United States, they are then by the very
fact already at war and any declaration on the part of
Congress is nugatory; it is at least unnecessary."
[Quoted in James Grafton Rogers, WORLD POLICING AND
THE CONSTITUTION (Boston: 1945), p. 36.]
2. The Power of Congress to Declare War
While Article I, Section 8, of the U.S. Constitution provides that "The Congress shall have Power ... To declare War," neither Clause 11 nor any other provision of the Constitution states in so many words that Congress must pass a declaration of war before the President can legally order the nation's military forces into foreign hostilities. Even after the President has ordered the troops into conflict, he is not required by any clause of the Constitution to request a congressional declaration of war. Moreover, the absence of such a declaration does not tie the President's hands in the conduct of the war, as long as adequate appropriations for raising, supporting, maintaining, and transporting the military forces and otherwise funding the war effort are forthcoming from Congress.
The objective of the Founders in incorporating Clause 11 into the Constitution was to give to Congress a power which, in Great Britain, was constitutionally vested in the Monarch during the days when the King or Queen was the real head of the executive branch of government and the modern system of British parliamentary government had not yet evolved. Granting to Congress exclusive decision-making authority regarding whether the nation, at any given time, is officially at war with one or more foreign powers has never been practical, not even in the early days of the American Republic, before the advent of modern military technology, with the availability of means of rapid movement and deployment of military personnel, arms, and equipment. Such an allocation of war-making power happens to be considerably less practical in the contemporary era than it was during the late eithteenth and early nineteenth centuries. My study of study of military and diplomatic history has led me, slowly and reluctantly, to the conclusion that the eithteenth-century British Constitution properly vested the power to declare war in the Chief Executive--i.e., the Crown, before the emergence of modern parliamentary government. [Today, the Monarch, now the symbolic and ceremonious Chief of State, symbolically and ceremoniously wields the power to declare war, after the real executive authority, the Prime Minister and Cabinet, has symbolically and ceremoniously "recommended" such a declaration. In reality, the "recommendation" is an order or command, rather than a request or suggestion. Thus, the real decision-making power regarding matters of war and peace is in the Prime Minister and Cabinet, enjoying the support and confidence of a majority in the House of Commons, the popularly elected chamber of Parliament.]
The realities associated with war between sovereign states and between opposing coalitions of sovereign states render a nation's legislature ill-suited for determining when, in fact, the nation is at war and therefore military action must be immediately taken. What has been the consequence of this? U.S. presidents, when facing foreign threats or potential threats to American national interests, have tended to function as Hamiltonian or ultra-Hamiltonian presidents. Throughout our history under the Constitution, and especially during the contemporary era, presidents have been inclined to--
Ignore the constitutional power of Congress to declare
war;
Seek to develop an independent presidential war-making
power, i.e., a presidential war-making power not legally
dependent for its exercise on a congressional declara-
tion of war.
In seeking to develop an independent war-making power, not only have American presidents tended to adopt Hamilton's expansive view of the scope of the Chief Executive's constitutional authority and go to the very limits of that view in putting it into practice, they also have tended to go beyond the limits.
For the most part, presidents have been successful in this endeavor to assume an independent war-making power, pulling it off without causing major constitutional crises. In the case every war the U.S.A. has fought, the President, not Congress, was chiefly responsible for the nation's participation in the war.
3. The President's Use of Article XLIII of the U.N. Charter
The President's claim to an independent war-making power has been advanced primarily on the basis of a very broad construction, or interpretation, of his constitutional authority as Commander-in-Chief of the Armed Forces and as custodian of the executive power of the national government. However, development of this independent war-making power also has been futhered and its legitimacy enhanced by U.S. membership in the United Nations and by the ensuing obligations incurred by the U.S.A. under the United Nations Charter. On particular occasions since the close of World War II, the President has ordered U.S. military forces into foreign conflict abroad, acting not under the authority of a congressional declaration of war, but under that of a U.N. Security Council resolution passed under Article XLIII of the U.N. Charter, which provides:
Section 1:
All Members of the United Nations, in order to con-
tribute to the maintenance of international peace
and security, undertake to make available to the
Security Council, on its call and in accordance with
a special agreement or agreements, armed forces, as-
sistance, and facilities, including rights of pas-
sage, necessary for the purpose of maintaining in-
ternational peace and security.
Section 2:
Such agreement or agreements shall govern the num-
bers and types of forces, their degree of readi-
ness and general location, and the nature of the
facilities and assistance to be provided.
Section 3:
The agreement or agreements shall be negotiated as
soon as possible on the initiative of the Security
Council. They shall be concluded between the Secu-
rity Council and Members or between the Security
Council and groups of Members and shall be subject
to ratification by the signatory states in accord-
ance with their respective constitutional processes.
When the Korean War broke out in 1950, it was under Article XLIII of the U.N. Charter that the U.S.A. entered the war. Ordering U.S. air, naval, and ground forces to Korea, President Harry S. Truman announced that he was taking this action under the authority of a United Nations resolution approved by the Security Council, pursuant to Article XLIII of the U.N. Charter. The U.N. Security Council resolution, adopted on June 27, 1950, provided:
"The Security Council,
"HAVING DETERMINED that the armed attack upon the
Republic of Korea by forces from North Korea con-
stitutes a breach of the peace.
"HAVING CALLED FOR an immediate cessation of hos-
tilities, and
"HAVING CALLED UPON the authorities of North Korea
to withdraw forthwith their armed forces to the
38th. parallel, and
"HAVING NOTED from the report of the United Nations
Commission for Korea that the authorities in North
Korea have neither ceased hostilities nor withdrawn
their armed forces to the 38th. parallel and that
urgent military measures are required to restore in-
ternational peace and security, and
"HAVING NOTED the appeal from the Republic of Korea
to the United Nations for immediate and effective
steps to secure peace and security,
"RECOMMENDS that the Members of the United Nations
furnish such assistance to the Republic of Korea as
may be necessary to repel the armed attack and to
restore international peace and security in the
area."
Through diplomatic negotiation--the constitutional function of the executive branch of the U.S. national government--the President managed to obtain from the U.N. Security Council a resolution authorizing the U.S.A. and other member-states of the United Nations to enter the Korean War on the side of the non-Communist government of South Korea and against the Communist regime in North Korea. The U.N. resolution legitimized President Truman's decision-making and action whereby he brought the U.S.A. into the Korean War and did so without going before Congress to request a declara- tion of war. Pursuant to a decision of the U.N. Security Council, procured by Executive diplomacy, America entered a war which lasted three years and in which U.S. participation was never sanctioned by a congressional decla- ration of war.
When the Persian Gulf War broke out in 1991 and President George W. Bush ordered U.S. military forces into the conflict against Iraq, he acted, in part, under Article XLIII of the U.N. Charter and U.N. Resolution 678, which called on the member-states of the United Nations to come to the defense of Kuwait and employ "all means necessary" to drive the Iraqi invaders from that country. In 1994, President Clinton acted under Article XLIII and U.N. Resolution 940 when he committed U.S. troops to spearheading a 28-nation multinational force which occupied Haiti for the purpose of reestablishing order in that country and restoring Aristide to its Presidency.
4. The President's Use of the Joint Congressional Resolution
President Dwight D. Eisenhower, like Harry Truman, was an innovator in the continuing effort to develop an independent presidential war-making power. Eisenhower's innovation was utilization of the joint congressional resolution, short of a declaration of war, as a means of enhancing the President's discretionary decision-making and action-taking authority, as regards sending American troops into military conflict abroad.
What is a joint congressional resolution? It is very similar to a legislative bill passed by Congress. To go into effect as American law, a joint resolution, like a legislative bill, must (1) be approved by a majority in each of the two houses of Congress and then be consented to and signed by the President or (2), after a presidential veto (i.e., the President's refusal to give consent to and sign the measure), be repassed by a two-thirds vote in each house, thereby effecting a congressional override of the executive veto.
[NOTE: An exception to the requirement of the Presi-
dent's consent and signature is a joint congressional
resolution passed by a two-thirds vote in the Senate
and in the House of Representatives and proposing an
amendment to the U.S. Constitution. A constitutional
amendment proposed by Congress is not submitted to
the President for his formal-legal consideration and
approval. Rather, it goes to the fifty states for
their consideration, and if ratified by three-fourths
of them, becomes a part of the Constitution.]
[NOTE: A joint resolution is to be distinquished
from a concurrent resolution, which does not require
the President's formal-legal approval. A concurrent
resolution goes into effect when approved by simple
majority vote in each of the two chambers of Con-
gress.]
In 1955, President Eisenhower sought and obtained from Congress a joint resolution which, though not a declaration of war, afforded the President wide discretion to take military action off the coast of mainland China in order to protect Formosa (Taiwan) and the Pescadores Islands from Chinese Communist aggression. The Formosa Resolution authorized the President "to employ the Armed Forces of the United States as he deems necessary for the specific purpose of securing and protecting Formosa and the Pescadores against armed attack." In passing this resolution, Congress, without going so far as to formally declare war against Communist China, delegated to the President longterm discretionary authority to engage the U.S. Armed Forces in conflict with Chinese Communist military forces whenever, in his opinion, the latter threatened the security of Taiwan and the smaller offshore islands belonging to Taiwan.
President Eisenhower resorted to the same device in the Middle Eastern crisis of 1956. He requested and obtained from Congress a joint resolution authorizing him to employ, as he judged necessary, U.S. military forces in the "general area" of the Middle East to counter "overt armed aggresssion" on the part of "any nation controlled by international Communism."
In 1964, when President Lyndon B. Johnson ordered air strikes against North Vietnam and thereby further escalated U.S. involvement in the Vietnam War, he recommended and Congress passed a joint resolution which, in sweeping language, authorized the President "to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression." The Gulf of Tonkin Resolution declared that--
"... the United States is ... prepared, as the
President determines, to take all necessary
steps, including the use of armed force to assist
any member or protocol state of the Southeast Asia
Collective Defense Treaty requesting assistance in
defense of its freedom." [House Joint Resolution
1145, August 7, 1964.]
The resolution provided that it would remain in force until the President determined that--
"... the peace and security of the [Southeast Asia]
area is reasonably assured by international condi-
tions created by the United Nations or otherwise,
except that it may be terminated earlier by concur-
rent resolution of Congress." [House Joint Resolu-
tion 1145, August 7, 1964.]
In 1991, during the Persian Gulf War, President Bush, like his predecessors Dwight Eisenhower and Lyndon Johnson, resorted to the joint-congressional- resolution device (1) to enhance the legitimacy of presidential action to involve the U.S.A. in a situation of foreign hostilities and (2) to give the President a free hand in directing and conducting U.S. participation in the war. In response to Iraq's August 2, 1990, invasion of Kuwait and the November 29, 1990, U.N. Security Council resolution (U.N. Resolution 678) calling on U.N. members to assist Kuwait and authorizing them to use "all means necessary" to expel Iraqi forces from Kuwait, President Bush recommended to Congress a joint resolution authorizing him to employ U.S. military forces against Iraq. On January 12, 1991, Congress passed the Persian Gulf Resolution, which, in phraseology barely short of a formal declaration of war against Iraq, put the congressional stamp of approval upon U.S. participation in offensive operations in the Persian Gulf War and afforded the President wide discretion in his use of U.S. Armed Forces in the Persian Gulf region. Four days later, after expiration of the U.N. Security Council's deadline for Iraq to withdraw its forces from Kuwait, President Bush gave the orders and "Operation Desert Storm"--the sustained air and missile attacks on Iraqi military targets--was launched.
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