Every other Tuesday, the team behind Civics 101 joins NHPR’s All Things Considered to talk about how our democratic institutions actually work.
The U.S. is currently at war with Iran, even though Congress hasn’t officially declared war. Congress actually hasn’t declared war since World War II.
Civics 101 host Hannah McCarthy joined NHPR’s Michelle Liu to explain how the U.S. can be at war without an official declaration.
Transcript
So let's start with the process of declaring war. What does it look like?
So Michelle, the Constitution clearly gives Congress the power to declare war. It's in Article I, section eight. And the last time Congress used that power was 1942. So here's how this has always happened. The president either sends Congress a written request or goes before Congress in person to ask permission to go to war. In order to actually go through with this declaration, the House and the Senate must pass a joint resolution. If and when they do, this opens up a whole range of executive branch powers beyond the actual fighting. So this includes detaining foreign enemies, taking over transportation systems to supply the war effort, certain intelligence gathering, etc. But that is the basic of declaring war.
Why does Congress have the power to declare war instead of, say, the president?
The framers definitely did not want to give one person, aka the executive aka the president, the power to declare war because as one delegate to the Constitutional Convention put it, that would render the executive "a monarch of the worst kind." So they gave that power to Congress.
The major reasoning behind this is actually twofold. One, Congress is a deliberative body of many voices. It is difficult to get anything done in Congress. And because war should be especially difficult, it takes both the House and the Senate voting on it to get it done. Two, congress is supposed to be representative of the people. Now, the degree to which this is symbolic versus actual, that is up for debate. But essentially the act of going to war should be something that the nation, the people consent to, not something that one person does.
The U.S. Has gone to war many times and is at war without an official declaration. So how is that possible?
So much of our war waging in the past century has been the product of an authorization of military force. This is essentially Congress granting the president the ability to take military action without having to go through the process of declaring war. But then there is the president getting involved in wars without any permission at all -- President William McKinley in the Philippines, President Harry Truman in Korea.
Now, the Vietnam War was a major turning point in terms of blurring the lines of executive powers versus congressional powers when it comes to war. Congress did pass a joint resolution, though not a declaration of war, allowing for military action in Vietnam under President Lyndon Johnson. But then they repealed that resolution under President Richard Nixon. Nixon kept bombing Vietnam, and the federal courts essentially said, "You know what? That is a political thing. We are not getting involved." And then Nixon bombed Cambodia and Congress passed the War Powers Resolution, the WPR, in 1973. People refer to this sometimes as the War Powers Act, but it's officially a resolution.
This gave Congress the power to respond to the deployment of U.S. troops into conflict. For example, when President Ronald Reagan invaded Grenada in 1983, Congress used the WPR to force the withdrawal of troops. That said, Congress has mostly used the WPR to either authorize the use of military force like I talked about earlier, or for reporting and oversight of military action. And the courts have largely declined to take up the issue of war.
So Michelle, essentially, there is a decades long answer to that question, involving presidents doing whatever they want to do, congressional resistance or support, lawsuits, public opinion, politics, diplomatic relations. And then there is a very short answer to the question, how is it possible to go to war without congressional approval? Congress or the courts or both have the power to stop it. It's just that for the most part, they really haven't.
