Declaring War

Congress hasn't declared it often. The U.S. has fought a lot of war anyway. How?

On President’s Day, with Russian invasion of Ukraine imminent, Justin Amash, a Libertarian Party former member of the U.S. House of Representatives, tweeted this, from George Washington:

The Constitution vests the power of declaring War with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorised such a measure.

Amash seemed to be responding to indications that President Biden might enter into some degree of military conflict with Russia.

With so many fake Washington quotes all over the Internet, a notable thing about this one is that it’s real, though taken badly out of context. I think the point of Amash’s tweet had two parts: 1) the president can’t constitutionally take major military action without the approval of Congress; 2) our first president was keenly aware of constitutional limitations on his warmaking power. From which we may draw the implication that Biden, in keeping with high standards of respect for checks and balances set by Washington, should abide by the legal requirement for congressional support, if he wants to launch an offensive against Russia in support of the U.S. ally Ukraine.

The framers of the Constitution did indeed have cogent reasons for making Congress, not the president, responsible declaring war. We can probably all state some of the reasoning. I won’t go into it here.

Yet we also know, of course, and Amash does too, that a lot of war has been fought by the U.S. in the absence of what most people, anyway, mean by a declaration: Congress’s passing a bill, signed into law by the president, stating that the U.S. and another entity are at war and providing for funding the war effort. Congress has at times done exactly that, but not since 1941. In the interim, the U.S. has made war fairly constantly. Many of us can roll through a long list of 20th- and 21st-century police actions, military advisements, outright wars, and so forth.

We might also note that Congress has been involved: it's often voted to issue resolutions and authorizations. With the postwar—or “postwar”—rise of the U.S. to great-power status, in a nuclear-weapons contest with the Soviet Union, with treaties that impose obligations, Congress and the American people have accepted a high degree of executive-branch-driven warmaking.

That can seem like a corruption of the original intent, and because I write about the U.S. founding period, when a lot of the issues were first thrashed out, I’m sometimes asked something like: What the hell ever happened to congressional declarations of war, as required by the founders?!

I’m not a lawyer, so happily nobody’s asking my legal opinion. The question seems to be about a political process, a decline in republican checks and balances.

But I’ve found that making a hard-and-fast statement on U.S. war powers—many people do!—raises more questions than it answers. Is a congressional power to declare war really divided by brightest of bright lines from an executive power to conduct war? Is Congress’s Iraq War resolution, signed into law by the president as Public Law No. 107-243, something substantively other than a declaration of war?

And if we’re really going all originalist here, how did the founders really handle these matters, in practice, not in theory?

It seems to me that even a quick look at the Washington quote above—even out of context—should suggest that the common understanding of a legal necessity for full-on declaration, like that for WWII, is flawed (and Amash probably wasn’t insisting on it). We tend to think of the failure to declare war as a “postwar” issue. Yet it’s hard to trace any real history of erosion, from an early-republic high standard of congressional responsibility, represented by a declaration of war, to a modern-imperial low standard, represented by an authorization, like the one for Iraq.

For if some declaration-to-authorization erosion of constitutional principle did occur, it must have occurred right there in Washington’s quoted sentence, which begins by citing Congress’s sole constitutional power to declare war and concludes by saying that no big military offensive can occur without an authorization. Washington himself, that is, sees authorization as an exercise of the declaration power.

Another way to look at it (I think pretty standard in legal circles): a declaration of war is only one of the forms that the constitutionally required congressional authorization for military action may take. On the one hand, that sounds like a reversal of constitutional categories. On the other hand, when it came down to the first use of the president’s warmaking power, Washington was the first user, and not only he but also the first Congresses clearly saw authorization, not necessarily declaration, as constitutional.

Because I’ve written a gripping, ripsnorting, page-turning book about the first U.S. war under the Constitution, carried out by Washington, in which the first U.S. Army was formed (three weeks on the indie bestseller list and finalist for the Army Historical Foundation Distinguished Writing Award, check it out), I was somewhat irritated to find an explanation of early U.S. exercises of constitutional war powers in a 2014 essay posted at the Center for American Progress (CAP) site. The essay shifts the issue away from Washington into the John Adams administration:

The limitations of declaring full war became apparent early in American history during the XYZ Affair, also known as the Quasi-War, when the French government began to seize American merchant ships in 1798. Rather than declare war, Congress authorized the president to “acquire, arm, and man no more than twelve vessels, of up to twenty-two guns each” and then authorized public U.S. vessels to capture armed French vessels.

The Quasi-War was just that, quasi, and thus does foreshadow a lot of modern U.S. military operations short of full-on war. So the CAP essay seems to be suggesting that as early as the Adams administration, more limited actions seemed to require more limited authorizations.

In fact, though, the first war this country ever fought—with President Washington as commander-in-chief and preceding the Quasi War by six years—lacked a full declaration too. And that war was a full war, nothing quasi about it. Of course I highly recommend reading all about it in my book, linked above, but the point, for this post, is that when Washington made the statement that Amash has quoted, he was well into a war against a powerful confederation of Native nations, living mainly west of the Ohio River, led largely by Blue Jacket and Little Turtle. The confederation had enjoyed the biggest victory, by far, that indigenous North Americans would ever have over U.S. troops. In response, Washington had gotten Congress—not to declare war—but to authorize and appropriate funds for the first regular, professional U.S. Army and to send it, under General Wayne, affectionately known as Mad Anthony, to crush the confederation and conquer what was later to become known as the Midwest.

Context is everything, and in context, Washington’s words, quoted above, don’t represent some philosophical reflection on the constitutional limits on his own warmaking power. What actually provoked the remarks: There was some thought of extending the U.S. war of invasion on a new front, against the Creeks in Georgia, which seemed inadvisable to the Cabinet. But a correspondent formerly in the South Carolina line of the Continental Army was eagerly lobbying Washington to approve organizing a bunch of Georgia militia to do their own thing against the Creeks. To squash that plan, Washington wrote to the guy and referred, with his usual perfectly controlled formalism, and in no uncertain terms, to an “offensive expedition against the refractory part of the Creek nation, whenever Congress should decide that measure to be proper and necessary” (my italics).

Then he made a blunt warning, which might as well have been underlined too, so I’ll quote it again, this time in context: “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

Washington’s only purpose in making those remarks was to assert the sole, uniform warmaking powers of the federal government, as a whole, over the ambitions of motley, poorly organized and trained state militiamen, whose ill discipline he disdained, and who kept incorrigibly going off on their own and screwing things up. (Read the exchange—it’s classic GW.)

Not a super-libertarian way of looking at the history of American citizen-soldier militia. But then Washington wasn’t a libertarian.

Nor was he abashed by checks and balances. Even while smacking down the military ambitions of states and locales, he was also doing everything he could to keep Congress in his pocket by giving it no option but to go along with everything he wanted authorized for the invasion of the Midwest and the total destruction of the towns there. His tactics included making backroom deals with key senators, carrying on sham negotiations with the enemy to buy off doves and gain time for military buildup, and even putting diplomats in harm’s way to expose the enemy’s implacability, thus making anything but invasion politically impossible for the Congress to live with.

This horrible time for Ukrainians and for the world might be an especially unedifying time for indulging in characteristically American sentimentality about our country’s history of warfare and constitutional restraints on war powers. George Washington was an unremitting hardass. He did, without compunction, whatever he thought needed to be done for the good of the country. (What was good for the country was often good for him—a story for another time.) He got his war authorization, by hook and by crook, and many presidents since—not all—have gotten what they’ve wanted, when what they’ve wanted is to make war.