Why Has Congress Never Officially Declared War Since 1941? by Gregory Hilton

The libertarians claim “only Congress can declare war,” and the President has “no legal authority to direct the troops”. They quote the Powers of Congress as outlined in Article I, Section 8 of the Constitution which says: “The Congress shall have the Power. . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water”. The libertarians and isolationists have consistently misinterpreted Article II, Section 2: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”
They believe the President’s legal authority begins when troops are “called into the actual service of the United States”. In their view, “called into the actual service” is a declaration of war. The Congress and the courts do not support their interpretation. The United States has been involved in over 260 major military actions since 1776, but only five of them are because of a declaration of war (half of them involving fighting for less than 30 days). They are the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. There was no declaration of war for Civil War or Korea.
The President clearly has the power to deploy troops without a declaration of war. Committing an “Act of War” is not the same as going to war. Intervention can take many forms, most of which could be called “Acts of War” but that does not mean we are, in fact, “At War” and does not require a Congressional Declaration of War.
Practically all of the founders were still alive when Thomas Jefferson deployed Naval forces against the Barbary pirates without a declaration of war. John Adams did the same thing in an undeclared war against France.
The libertarians ignore the fact that the founders commissioned the “Revenue Cutter Service” to commit “Acts of War” on the high seas against citizens of foreign nations in their actions against the Barbary pirates. This was an enforcement action in defense of international commerce. It continues today with the US Coast Guard firing on vessels carrying contraband. The libertarians claim these actions are unconstitutional because they are not specifically mentioned in the Constitution. It is not mentioned, but the authority clearly is.
The last time a declaration of war happened was in December of 1941 after the Japanese attacked Pearl Harbor. The Korean War and Desert Storm in Kuwait in 1991 were military actions pursued with a U.N. mandate.
A declaration of war only requires a 51% vote in Congress. Only two Senators voted against the Gulf of Tonkin Resolution in 1964, and only one lawmaker in the entire Congress opposed Bush’s Afghan resolution.
Any of our post war presidents could have easily obtained a declaration of war. There was very little Congressional opposition at the outset of the post WW II conflicts. Instead, the Congress has used authorizations of forces rather than war declarations. The presidents would prefer war declarations which significantly expand their power. The Congress wants this to be an authorization to increase the stature of the legislative branch.
Because of the War Powers Act a president can not conduct a war without Congressional approval. The Gulf War was authorized by the U.S. Congress. If George H.W. Bush had wanted a declaration of war he would have received it. Republicans wanted this but the Democrats did not want to give Bush additional power.
The Gulf of Tonkin Resolution in 1964 was passed after the attack on the Maddox and the C. Turner Joy. Everyone could see the damage on the Maddox. It was later discovered that a radar mistake was responsible for the C. Turner Joy’s response. Nevertheless, the attack on the Mattox took place.
If Congress wishes to oppose the President, it can do so in several ways. It can revoke any resolutions supporting the President (as Congress did in 1970 when it revoked the Gulf of Tonkin Resolution). Congress can cut off appropriations for Presidential war making. During the Vietnam War, it barred troops from engaging in operations in Thailand and Laos (1969) and from using ground forces in Cambodia (1970) and bombing Cambodia (1973).
The “Declare War” clause of the U.S. Constitution (Article I, Section 8) does not spell out the exact powers it entails and encompasses. Presidents have taken a broad mandate after the passage of a war resolution. The presidents war powers were recognized by the Supreme Court in the Hamdi v. Rumsfeld decision of 2004.
Since WW II the Congress has preferred to use an Authorization for the Use of Military Force [AUMF]. This serves a very different role from a formal declaration of war, and by passing an AUMF in place of declaration, Congress has made a critical decision about the scope of power to be given to a president. Our legislative history under a declaration of war gives the president broad inherent constitutional powers to deploy U.S. armed forces into combat abroad without specific authorization from Congress.
The AUMFs passed by Congress signal support for the military actions but they do not go so far as to cede lawmaking power to the president. A declaration of war has been viewed by the Supreme Court as ceding legislative power by Congress.

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