Unconstitutionally Declared American Conflicts and the War Powers Act of 1973

According to the Constitution of the United States, Congress possesses the sole power to declare war and to shape U.S. military policy through appropriations. Since 1812 Congress has declared war on 11 occasions. The last formal declaration of war was World War II. Unconstitutionally declared wars included the Mexican wars of the 1840s and the Spanish American War of 1898.

Since 1945 the United States has committed armed forces in major wars in Korea (UN action), Vietnam, Grenada, Persian Gulf War I (Bush 1) and Persian Gulf War II (Bush 2/UN Security Council) and Afghanistan. Since Korea all wars have been what I would call ‘Presidential Wars’. On this point noted Constitutional scholar Louis Fisher once stated:

“President Harry Truman’s commitment of U.S. troops to Korea in June 1950 still stands as the single most important precedent for the executive use of military force without congressional authority.”

In the 19th century the war with Mexico was not Constitutionally authorized. U.S. President Polk’s assertion of Manifest Destiny was focused on United States interest on westward expansion beyond its existing national borders. In it we stole Texas and other lands from Mexico. The war with Spain was instigated by the United States based on the mysterious and still to this day unexplained sinking of the USS Maine in the harbor of Havana Cuba. ‘Remember the Maine’ became the rallying cry.

In the 20th century Congress has agreed to ‘resolutions’ authorizing the use of military force. However, the historical record in modern times shows that when we have deviated from the Constitutional mandate on Congressional declaration of war, the outcomes have been disastrous, every time. Although Korea could arguably be viewed as ‘justified’ and in our national interests for several reasons I will not get into, wars since then cannot be so viewed and were examples of abuse of Presidential power.

For example, during the war in Vietnam and after President Richard Nixon ordered the bombing of Cambodia without Congress’s consent, Congress passed the War Powers Resolution of 1973, intended to limit the president’s authority to conduct war.

More importantly, both in Vietnam and in the second Iraq war (Bush 2), which were approved under the war powers act, Congress was either lied to or the evidence to justify war presented to Congress and the public was based on faulty or outright false pretenses. These were clear examples of abuses of Presidential power by the administrations of Presidents Johnson and Bush 2, respectively. On that basis we could also argue they were illegal wars.

Abraham Lincoln, our greatest President in a letter in 1846 to a law partner that dealt with Polk’s justification of the war with Mexico, wrote:

“But allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose—and allow him to make war at pleasure. … If, today, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, “I see no probability of the British invading us” but he will say to you “be silent; I see it, if you don’t.”

Lincoln goes on to say:

“The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.”

In conclusion, the founding fathers were wise when they divided the war powers between Congress and the Executive branches of government under Article I, Section 8, Clause 11 of the Constitution. In 243 years the United States has engaged in a number of wars that have been ‘declared’, but that the Constitution does not specify the form of such a declaration. Since the Korean war Presidents have unilaterally entered conflicts and wars with foreign nations under the war powers act of 1973. These resolutions, however, on more than one occasion have been based on false or misleading evidence. In each case the outcomes have been devastating to the interests of the United States. We need further safeguards against Presidential abuse of power when dealing with conflicts around the world.