Declaration of War: A Dead Letter or An Invitation to Struggle?

“North Korea best not make any more threats to the United States,” warned President Trump. “They will be met by fire and fury like the world has never seen.” ⁽¹⁾ Congressional Democrats’ reaction was apoplectic. Senator Dianne Feinstein (D-CA) called the remarks “bombastic”; Representative Eliot Engel (D-NY) thought the President was “unhinged”; Senator Ben Cardin (D-MD) denounced the talk as “bluster and provocative”; Senator Charles Schumer (D-NY) said it was “reckless rhetoric”; ⁽²⁾ Representative David Cicillini (D-RI) criticized its “escalating rhetoric”; Representative Betty McCollum (D-MN) found it “dangerous”; and Representative Ted Lieu (D-CA) thought it was “provocative.” ⁽³⁾ Could the President, entirely on his own, order such an attack? None of the Democratic critics, so unsparing in their condemnation, raised the question. Yet it would seem as obvious as a moose on a highway, for the Constitution announces that “The Congress shall have the power to . . . declare war”? ⁽⁴⁾ What could be simpler?

Congress has been reluctant to seize major responsibility for initiating armed conflict by formally declaring war. Though the public is invariably enthusiastic at the outset, the longer range prospects are uncertain and a formal declaration would etch congressional support in granite, perhaps leaving members vulnerable at the polls. Yet in order to retain its status and power, Congress can hardly renounce its role in the nation’s most important and visible political decisions. Enter the War Powers Resolution of 1973, ⁽⁸⁶⁾ enacted as a rebuke to President Nixon’s unilateral actions in Southeast Asia at a time when he was reeling from Watergate. The purpose of the resolution, according to a Senate report, was “to prevent secret, unauthorized military support activities and to prevent a repetition of the most controversial and regrettable actions in Indochina.” ⁽⁸⁷⁾ The resolution begins by stating that the President may exercise his commander in chief powers only if Congress has declared war or authorized participation by statute or if the nation has been attacked, but then undermines this principle by announcing that it will be enough for the President merely to “consult” with Congress before sending troops into hostilities. If he orders military engagement, he must report his action to Congress within forty-eight hours. Unless Congress acts, the troops must be withdrawn after sixty days, though Congress may have him order them out of hostilities at any time. Thus was the declaration of war redefined and the congressional role downsized to merely speaking with leaders.

President Nixon vetoed the resolution, ⁽⁸⁸⁾ but weakened by scandal, was unable to block it. Later commentators have often echoed his fear, for example, calling it “dangerous to the country’s safety because it denies flexibility to the President . . . and conveys a message of potential disunity.” ⁽⁸⁹⁾ However, the next two Presidents, Ford and Carter, both vulnerable and about to be defeated at the polls, virtually ignored the law and suffered no bad consequences. Ford, unelected and facing a Democratic Congress, met the reporting requirement in evacuations from Vietnam and Cambodia ⁽⁹⁰⁾ and the retaking of a freighter, the Mayaguez, ⁽⁹¹⁾ seized by Cambodia, but failed to consult with Congress. ⁽⁹²⁾ Carter, weakened by economic stagflation and the humiliation of Iran’s holding diplomats hostage, refused to consult with Congress prior to his failed hostage raid; the War Powers Resolution provides for consultation “in every possible instance,” he argued, but a fear that it might compromise the secrecy of the mission and its element of surprise meant that this was not a “possible instance.” ⁽⁹³⁾ He was pilloried after the raid, not because he failed to consult with Congress but because the raid was a fiasco. ⁽⁹⁴⁾

When President Reagan dispatched 1,900 Marines and Army Rangers to Grenada to protect American civilians in the aftermath of a bloody coup, he consulted with congressional leaders only after the invasion order was given. ⁽⁹⁵⁾ House Speaker Thomas P. “Tip” O’Neil reported that “we weren’t asked for advice,” but were only “informed what was taking place,” ⁽⁹⁶⁾ but far from complaining, he said to Reagan, “God bless you, Mr. President. And good luck.” ⁽⁹⁷⁾ Nor did George H.W. Bush consult before sending troops to capture the president of Panama. ⁽⁹⁸⁾

In 2017, President Trump authorized “bloodying the nose” of Syria, which had used poison gas against civilians, by sending fifty-nine cruise missiles to strike Syrian military targets, solely on his own authority. ⁽⁹⁹⁾ A year later, rejecting his defense secretary’s call for congressional approval ⁽¹⁰⁰⁾ and facing innumerable scandals, he found that his bombing of chemical warfare sites in Syria provoked little dissent. Though House Speaker Paul Ryan (R-WI) defended the action as justified under the 2001 Authorization for Use of Military Force, ⁽¹⁰¹⁾ it was so obvious that the statute aimed at 9/11 perpetrators was irrelevant that the President himself spoke only of his generalized “constitutional authority to conduct foreign relations and as commander in chief and chief executive [acting] in the vital national security and foreign policy interests of the United States.” ⁽¹⁰²⁾ Later, he added that he was “keep[ing] the Congress fully informed, consistent with the War Powers Resolution,” ⁽¹⁰³⁾ but did not indicate that he had consulted with congressional leaders before acting. Nor was there authorization from the UN Security Council. Nor was the United States under attack or an imminent threat of attack from Syria. The administration has declined to make publicly available the legal justification for the attack, though it later conceded that the attorney general was briefed only on the day following the attack, so that he could advise the President in “future attacks.” ⁽¹⁰⁴⁾

President Trump, like President Obama justifying his 2011 airstrikes against Libya, rooted the strikes in the President’s reasonably determining that they “serv[ed] important national interests.” ⁽¹⁰⁵⁾ The only limitation on his power was the requirement that the actions not be “prolonged and substantial military engagements, typically involving exposure of U.S. military personnel to significant risk over a substantial period.” ⁽¹⁰⁶⁾ As Presidents will nearly always be able to point to a national interest — why else would they be concerned? — this hurdle does not amount to much of an obstacle.

The ongoing civil war in Yemen illustrates the ongoing nature of the problem. In the civil war, which has produced appalling and widespread civilian suffering and deaths, the United States is not a belligerent, but its secondary role supporting a Saudi coalition by training combatants, providing intelligence, weapon sales, commando raids, and air strikes is of considerable importance. The target is Houthi rebels, supported by Iran but not officially designated as a terrorist group and operating entirely within Yemen. American involvement began under President Obama in 2011 and continues under President Trump. In 2018, it became known that American Special Forces were involved, although such action was denied by the Defense Department and was not authorized by Congress. Senator Tim Kaine (D-VA) called for congressional authorization, but nothing came of it. ⁽¹⁰⁷⁾ The government, for its part, has maintained that the events in Yemen do not constitute hostilities ⁽¹⁰⁸⁾ and that, in any case, they are covered by the 2001 AUMF.

Careful scholars have concluded that “U.S. military forces have not crossed the threshold of direct, imminent involvement in hostilities, under traditional interpretations of the War Powers Resolution,” ⁽¹⁰⁹⁾ but it is difficult to see how the Saudi-led coalition could have functioned at its current level without American help. Further, the resolution expressly includes under “introduction’ of armed forces, “the assignment of . . . armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country or government when such military forces are engaged, or there exists an imminent threat that will become engaged, in hostilities.” ⁽¹¹⁰⁾ The application to Yemen is obvious, and served as the basis for a Senate joint resolution, claiming that the War Powers Resolution compelled Trump to withdraw military forces from the Yemeni war. Never before had the Senate passed a resolution that could expedite action under the War Powers Resolution. ⁽¹¹¹⁾ However, as the House refused to take up the issue, no legislation was enacted, and the resolution was exposed as a mere gesture. Democratic victories in the 2018 elections gave them a majority in the House, however, and they responded by voting 243 to 177 to invoke the War Powers Resolution’s provision that permits Congress to force the withdrawal of troops, when no formal declaration of war had taken place. ⁽¹¹²⁾ The Senate declined to repass its similar 2018 resolution.

Where, then, did the legal justification for unilateral presidential action come from? The answer is dicta, first in a World War II opinion concerning America training British flying students, ⁽¹¹³⁾ next in an opinion concerning Truman’s entry in the Korean War, ⁽¹¹⁴⁾ and then in United States v. Verdugo-Urquidez. ⁽¹¹⁵⁾ From these dicta, the Office of Legal Counsel, in a 1992 opinion on intervention in Somalia, concluded “that the President has the power to commit United States troops abroad for the purpose of protecting important national interests.” ⁽¹¹⁶⁾ Two years later, this finding buttressed an OLC opinion on intervention in Bosnia and Herzegovina. ⁽¹¹⁷⁾ Thus did dicta, unmoored to constitutional text, generate doctrine, leaving Presidents free to act militarily whenever they thought it useful. ⁽¹¹⁸⁾ The subsequent “legitimacy” of Trump’s Syrian bombing ⁽¹¹⁹⁾ was tethered only very weakly to the law; the main anchor was moral outrage and disgust over the use of poison gas. ⁽¹²⁰⁾

What is interesting is what did not happen: there was no great congressional or public outcry. Of forty-nine Senate Democrats and Independents, only four opposed the strikes and nine raised the issue of congressional authorization but supported the strike; no less than twenty others voiced their support. In the House, opposition was greater but no more effective. Ninety members of both parties called on the President to “consult and receive authorization from Congress before ordering additional use of U.S. military force in Syria,” ⁽¹²¹⁾ and the Progressive Caucus predicted that “U.S. military interventions will likely add to the mass suffering in Syria.” ⁽¹²²⁾ A new AUMF proposed by Senators Corker (R-TN) and Kaine , which claimed to expedite congressional action but actually left presidential discretion intact, ⁽¹²³⁾ excited very little interest. The congressional and media noise level was muted, and in a few days, like news coverage of a train accident, debate over the bombing was over. Was this because the Syrian government was so reviled that the complaints might strike voters as little more than a turf battle? But turf battles, sometimes called “checks and balances,” are foundational constitutionally. Or was it because the President was under attack from so many fronts that his bombing decision simply got lost? But bombing presumably is too important to overlook. Or was it that presidential dominance in the Yoo mode was so well established that the affair seemed far more familiar than aberrant?

The lesson was plain: presented as a means of strengthening Congress and opposed by Presidents as intruding into their prerogatives, the War Powers Resolution has worked to free the President from constitutional strictures, granting him unilateral powers in excess of those expressed in the Constitution and compounding the confusion by leaving the meaning of key terms like “hostilities” and “consultation” unclear. However, even if “consultation” were construed as “seeking advice or opinions,” how to ensure that the advice or opinions are taken seriously? In sum, the most obvious factor explaining the weakness of the resolution is simply that Congress has declined to enforce it. ⁽¹²⁴⁾ Any worry that the resolution would seriously weaken presidential discretion is misplaced.

Three years after the War Powers Resolution was passed, Congress adopted the National Emergencies Act, ⁽¹²⁵⁾ which brings together other emergency law statutes and mimics the declare war clause, in requiring that the President officially announce a national emergency in order to access the power. Congress may override the declaration, but the override in turn would be subject to a presidential veto. Still, it is not the emergency that justifies presidential action, but rather Congress’ acquiescence.

Of course, Congress may question whether an actual emergency exists, but this will not be easy because the statute never defines the term and because past practice would seem to grant the President virtually unlimited discretion. ⁽¹²⁶⁾ Congress has formally and informally delegated so much discretion to the President for so many years that a strong act of will would be required to halt the momentum. Congress’ checking power under the statute has never been exercised.

The President has always had options other than a formal declaration of war, and two episodes, one before the enactment of the War Powers Resolution, the Gulf of Tonkin crisis, and one after, the war on terror’s Authorization for Use of Military Force, illustrate what forms this may take.

Consider the Gulf of Tonkin crisis during the Vietnam War. In 1964, the position of the South Vietnamese government was deteriorating to the point that July “was the bloodiest [month] of the war up to that time.” ⁽¹²⁷⁾ In response, the government increased its commando raids against the North, and by the end of the month the North had complained to the International Control Commission about an attack on a fishing boat in the Gulf of Tonkin, where an American destroyer, the Maddox, was alleged to have provided protection for South Vietnamese patrol boats. But though an air of high tension was enveloping the South, American public opinion was paying little attention to these developments.

On August 2, according to Secretary of Defense Robert McNamara, three North Vietnamese torpedo boats attacked the Maddox in the Gulf. “The Maddox was operating in international waters,” he said, on a “routine patrol,” and had been engaged in no provocative actions. ⁽¹²⁸⁾ Hanoi admitted that its boats had attacked, claiming that the Maddox had violated its coastal waters and had shelled its islands. American planes, dispatched from a nearby aircraft carrier, sunk one of the North Vietnamese boats and damaged three others. President Johnson warned North Vietnam that “grave consequences” would follow if the attacks were repeated, ⁽¹²⁹⁾ and sent a second destroyer, the C. Turner Joy, to join the Maddox in a patrol near two North Vietnam islands that had been attacked a few days earlier. On August 4, the administration reported, the two destroyers had been fired on by torpedoes, which they evaded. They responded by sinking two patrol boats. This time, North Vietnam denied that any attack had taken place.

President Johnson convened the National Security Council for one of its rare meetings, and at his instigation it recommended retaliation. The President then sent sixty-four bombing missions against the North and made a series of long range military moves to increase America’s presence in the area. With his top Pentagon and State Department officials, he also met with leaders of Congress, seeking a resolution “making it clear that our government is united in its determination to take all necessary measures in support of freedom and in defense of peace in Southeast Asia.” ⁽¹³⁰⁾ None of the congressional leaders objected. That evening, in a televised address to the nation, the President defended the air strikes and the resolution. The next day, he repeated this position in a widely reported speech, and was supported in appearances by the Secretary of State and the United Nations Ambassador. Newspapers were nearly all laudatory. ⁽¹³¹⁾ Public opinion favored the resolution, ⁽¹³²⁾ and became sharply optimistic following the Gulf events. A tepid July 21 poll revealed that thirty-nine percent of the public thought the war was going as well as could be expected and forty-one percent thought it was going badly; by August 4, the percentages had changed to seventy-two and sixteen, respectively. ⁽¹³³⁾

On August 6, the President formally asked Congress for a joint resolution, requesting its full support “for all necessary action to protect our armed forces and to assist nations covered by the SEATO treaty.” ⁽¹³⁴⁾ After brief closed door hearings and little floor debate, the resolution was approved on August 7, 416-0 in the House and 88-2 in the Senate. ⁽¹³⁵⁾ By the winter, bombing of the North was well underway, and by the end of 1965, troop strength had increased from 23,000 to 184,000. The resolution would before long, in the words of the Under Secretary of State, “fully fulfill the obligation of the Executive in a situation of this kind to give the Congress a full and effective voice, the functional equivalent of the constitutional obligation expressed in the provision of the Constitution with respect to declaring war.” ⁽¹³⁶⁾ As the functional equivalent of a declaration of war against the North, the resolution in the short term was used to rebut charges by Senator Barry Goldwater (R-AZ), Johnson’s rival for the presidency, to the effect that he was insufficiently tough in defense matters. In the longer term, it provided congressional authorization for escalating the war.

As time passed, several members of Congress who had backed the resolution began to have serious qualms about the war. In 1967, the Senate Foreign Relations Committee undertook an investigation of the events in the Gulf, and concluded that there had been mass confusion at the Pentagon on the day of the second incident to the extent that it could not even be sure that a second attack had taken place. ⁽¹³⁷⁾

Subsequent testimony cast added doubt on the second attack and portrayed the destroyers as invading the North’s territorial waters in provocative ways. Secretary McNamara admitted that, at the time, he had met for about four and a half hours with top military officials, “reviewing the information that bore on whether an attack had taken place.” ⁽¹³⁸⁾

The revelations induced a number of members of Congress to charge angrily that they had been misled. Foremost was J. William Fulbright (D-AR), chair of the Foreign Relations Committee and an old friend of Johnson, who had shepherded the resolution through the Senate. Now, he bitterly turned against Johnson, arguing that the resolution could not be considered the functional equivalent of a declaration of war, “especially having been made under conditions of emergency.” ⁽¹³⁹⁾ The events described to Congress on August 5 were very different from the events as depicted months later. The members felt deceived.

What members of Congress refused to concede was their own complicity in the affair, for what is most striking is that even had the original description been accurate in all particulars, it hardly constituted a crisis calling for an immediate, far reaching response. It was known at the time that no American was killed or wounded. Even property damage was minimal. ⁽¹⁴⁰⁾ But if the Tonkin Gulf incidents did not constitute a crisis, it was clear to the administration that without major American intervention, the war itself might in the coming months pose a crisis – a crisis to the administration’s policy, if not to the nation. The faux crisis, in this sense, was a proxy for a true crisis that seemed just beyond the horizon. The administration’s response was not a wholesale falsification of facts, but instead an approach more subtle and effective: the creation of an ambience of crisis by appealing to national pride and marketing a narrative full of urgency and outrage. Of course, there is no way to be certain that formal hearings on a declaration of war, then or later, would have produced a different result. But the episode does suggest that available work-arounds like the Tonkin Gulf Resolution, because they are seen as smaller affairs, may be easier for administrations to manipulate than outright declarations. ⁽¹⁴¹⁾

The Gulf of Tonkin Resolution met the commonly heard goal of the nation’s speaking with one voice. But it also suggests how this may lead to folly. With dissent stigmatized as obstructionist, if not unpatriotic, other options were not explored. As vigorous discussion is the heart of democracy and good public policy, its absence may be risky, indeed. The episode also points to the public’s belief that war requires a war declaration. President Johnson, the consummate politician of his day, fully understood this. Had he pushed Congress for a formal declaration, he would have increased the prominence of the war enormously and redefined his campaign against a Senator Goldwater he had tarred as a warmonger, enraging many of his supporters. But the Tonkin Gulf Resolution was soon hidden in the campaign fog – only to reemerge after the fog, post-election, blew away.

Since the time of John Adams and the French crimes at sea, ⁽¹⁴²⁾ President Jefferson and the Barbary pirates, ⁽¹⁴³⁾ and President Madison and the Dey of Algiers, ⁽¹⁴⁴⁾ Presidents have gone to Congress seeking authorization for use of military force (AUMF). These early AUMFs suggest that the Framers accepted them in lieu of formal war declarations. The AUMF is not precisely the equivalent of a war declaration, which automatically activates a series of statutes that grant the President the authority to seize control of transportation systems, ⁽¹⁴⁵⁾ extend military enlistments, ⁽¹⁴⁶⁾ and so on. But the President can issue a proclamation asserting a national emergency, and this, together with the AUMF, may be used to greatly expand his powers. The increasing weight of legal obligations attached to formal declarations of war has made AUMFs correspondingly attractive, to the point that they now constitute “the new default.” ⁽¹⁴⁷⁾

The first important modern AUMF occurred in 1955 and was directed against China. President Eisenhower, fearing that China might attack Taiwan (then called Formosa), an American ally, asked Congress to authorize the use of force “for the specific purpose of securing and protecting Formosa.” ⁽¹⁴⁸⁾ This made tangible the President’s commitment to defend Formosa, while avoiding an inflammatory declaration of war; by seeking congressional approval, he insulated himself against the criticism that had been directed at President Truman over his involvement in the Korean War to the effect that it had been a unilateral decision. Congress backed Eisenhower, a popular President and a highly respected former general, with only three dissenting votes in the House and Senate. Though China later resumed shelling of Formosan forces, no broad scale attack took place; perhaps the deterrent value of the AUMF deserves credit.

Unquestionably, the most famous AUMFs arose out of the 9/11 attacks. President George W. Bush described the attacks as “acts of war,” and, after consulting with congressional leaders, submitted an AUMF to Congress that provided “That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that took place on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.” ⁽¹⁴⁹⁾ The resolution passed the Senate 98-0 and the House 420-1. Floor debates as well as the text made it clear that the resolution was directed solely at those involved with 9/11, and not at terrorism generally. Bush used the AUMF not only to justify war efforts, but also to provide the foundation for military detention ⁽¹⁵⁰⁾ and warrantless surveillance. ⁽¹⁵¹⁾

In 2002, with the 9/11 trauma still fresh, President Bush sought a second AUMF to be used against Iraq, which he said had acquired weapons of mass destruction. The resolution authorized the President to use the armed forces “as he determines to be necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq.” ⁽¹⁵²⁾ This resolution, not tied to 9/11, passed the more skeptical Senate 77-23 and House 296-133, the numerous negative votes reflecting the greater distance from 9/11. Neither resolution contained an expiration date.

Years later, the two AUMFs remain the chief legal foundation for the nation’s military anti-terrorist efforts, and they are likely to continue to do so. Initially, the targets were Al Qaeda, the organization that carried out the 9/11 attacks, and the Taliban, which controlled Afghanistan and gave Al Qaeda sanctuary and support. But the AUMFs’ scope has since been broadened, as Presidents have widened the application of the statutes. The Tonkin Gulf Resolution, whatever its flaws and however tenuous its basis, at least was invoked against its target. AUMFs have proved to be a weapon that can be directed (and have been directed) at a wide range of targets unnamed at the time of their adoption. Congress, ever eager to avoid controversy, has quietly acquiesced. The courts have said almost nothing, with their leading cases instead concerning the relatively narrow issue of detention. ⁽¹⁵³⁾

The Obama administration, facing new terror threats in new places, further stretched the law. ⁽¹⁵⁴⁾ In his September 23, 2014 War Powers Resolution letter, the President outlined a series of military and humanitarian deployments in Iraq, including sending 475 armed forces personnel to Iraq, and noted, “It is not possible to know the duration of these deployments and operations.” ⁽¹⁵⁵⁾ The international terror picture, organizationally and geographically, had changed considerably in the interval since 9/11. Obama did not mention Al Qaeda or the Taliban, who had been the targets of the 2001 AUMF, but he did mention Syria, which had not been a target of either AUMF. Nonetheless, the two AUMFs were cited as offering statutory authority.

The following year, Obama proposed an AUMF that would repeal the 2002 AUMF and replace it with one directed against the Islamic State and “associated persons or forces.” He announced that passage of the new AUMF “would show the world we are united in our resolve to counter the threat posed by ISIL,” ⁽¹⁵⁶⁾ which had not existed when the earlier AUMFs were adopted. The new AUMF was unusual in setting a three year time limit and in not covering long term, large scale “enduring” ground combat operations. The President may have considered the 2002 AUMF outdated and his proposal moderate with broad appeal, sharing responsibility for the war with Congress and reinforcing his electoral base with a more narrowly targeted and legally based approach. In this he was mistaken. Progressives in his own party thought the vague reference to associated persons could justify a “forever war,” ⁽¹⁵⁷⁾ suspecting that the sunset clause could be abrogated by extensions and noting that no geographical limits were included in the resolution. On the right, critics were troubled by the sunset clause and the absence of authority to intervene in Syria. “You have a Republican Congress that wants to grant the President more power than he wants for himself,” complained Representative Duncan Hunter (D-CA). ⁽¹⁵⁸⁾ In either case, conservatives regarded the proposal as too restrictive on presidential discretion and liberals as too generous, though simple partisanship was also involved. The bill never came up for a vote. This was the only occasion in recent years, when a presidential AUMF request was not adopted.

However, because President Obama continued to insist that he had constitutional and 2001/2002 AUMF authority to act against terrorists, whoever they were and wherever he found them, the defeat had no practical impact. The rationale, entitled “associated forces,” was that the AUMF also implicitly targeted organizations linked to Al Qaeda or the Taliban plus attacking nations linked to the United States or its coalition partners. ⁽¹⁵⁹⁾ This expansive reading, which granted the President wide discretion, rendered the authorization he had sought from a new AUMF superfluous. Thus, notwithstanding that the 2001 and 2002 AUMFs failed to target them, Obama used the AUMFs to justify military engagements against Al Shabab in Somalia, the Khorosan in Syria, and Al Qaeda in the Arabian Peninsula in Yemen, ⁽¹⁶⁰⁾ as well the Islamic State, even if the groups had become rivals and not partners. ⁽¹⁶¹⁾ Despite the 2015 AUMF failure, Obama oversaw an impressive expansion of presidential authority.

Even AUMFs with the explicit goal of “mak[ing] Congress do its job” ⁽¹⁶²⁾ in practice enhance the presidency. The proposed Corker-Kaine AUMF of 2018, ⁽¹⁶³⁾ for instance, would have replaced the 2001 and 2002 AUMFs, authorizing the President to designate groups and individuals as “associated forces” to be militarily targeted, provided only that he inform Congress. The resolution failed, but that it was offered by two of President Trump’s most prominent national security critics illustrates how reluctant to exercise power Congress really is.

So, could President Trump unilaterally order an attack on, say, North Korea? The first thing to say is that it was simply talk, bellicose talk, to be sure, personally insulting talk as well, but simply talk. In more talk a year later, the President announced that “we fell in love, OK? No, really. He wrote me beautiful letters, and they’re great letters. We fell in love.” ⁽¹⁶⁴⁾ But even if his earlier talk pointed to a club in the closet, there is no constitutional prohibition of presidential threats (though article 2 (4) of the United Nations Charter bans states from threatening the use of force). Indeed, the deterrence model, ⁽¹⁶⁵⁾ which dominated the Cold War and continues in force to this day, is built on threat; the chief American nuclear strategic controversies were whether the United States should have first or second strike capabilities ⁽¹⁶⁶⁾ or whether weapons should be aimed at military targets ⁽¹⁶⁷⁾ or population centers, too. ⁽¹⁶⁸⁾ Apart from those favoring nuclear disarmament, everyone took the legitimacy of threat for granted. Certainly, today when the United States joins with South Korea for annual war games, North Korea does not fail to see the element of threat. In a 1950 press conference during the Korean War, President Truman repeatedly said that use of atomic bombs was “under active consideration,” ⁽¹⁶⁹⁾ an obvious threat. In short, the use of military threats by Presidents is a major theme in recent history. Much of what diplomats and generals do involves signaling to adversaries their willingness to take certain steps, and President Trump may well believe that his threats will incentivize North Korea to agree to a deal that he can live with. In this regard, he may have conceived his warnings as constituting a conditional declaration of war: If these nations fail to meet certain conditions, he may order attacks. ⁽¹⁷⁰⁾ Of course, credible threats will be more effective than those with weak credibility, and if a threat is constitutional, this may add to its credibility, though probably only very modestly.

But if threats helped to prevent warfare between Cold War superpowers, ⁽¹⁷¹⁾ obviously threats have not always had such benign results. In World War I, for example, Austria-Hungary’s threats to Serbia seem to have helped bring on the war, with consequences no one foresaw. ⁽¹⁷²⁾ There are threats and there are threats. Some are serious; some are not. Some concern vital interests; some do not. Some are deliberately disrespectful; some observe the usual diplomatic courtesies.

Imagine, then, that President Trump’s threats fail to achieve their goal, and he decides on his own and without input from Congress to launch an attack on North Korea. ⁽¹⁷³⁾ The Framers certainly agreed that in an emergency, a President could act on his own to respond to an invasion or rebellion, Madison and Elbridge Gerry, for instance, saying that they would leave “to the executive the power to repel sudden attacks.” ⁽¹⁷⁴⁾ With time pressures vastly greater today—a North Korean missile could hit America in an hour and a half, while in the Framers’ time, it would take a ship from Europe at least three weeks to reach American shores — no one doubts that this exception remains viable. In the Caroline incident of 1842, Secretary of State Daniel Webster argued that a pre-emptive attack would be justified only when the need to respond is “instant, overwhelming, and leaves no choice of means, and no moment of deliberation.” ⁽¹⁷⁵⁾ This remains the classic justification for pre-emptive attacks. ⁽¹⁷⁶⁾ Webster also emphasized the importance of proportionality, maintaining that any attack must be “justified by the necessity of self-defense, must be limited by that necessity, and kept clearly within it.” The UN Charter acknowledges “the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations, until the Security Council has taken measures to maintain international peace and security.” ⁽¹⁷⁷⁾ One reading would ban any pre-emptive attack; another would claim that the customary right of self-defense remains unimpaired. But insisting that the President must wait until the last moment to respond to a threat will strike many as reckless and unworkable, for by waiting this long, preferable options might well have been foreclosed.

The War Powers Resolution, however, permits the President to circumvent the issue of declaring war. All he would need do is to meet with congressional leaders and file a report, and he would receive a sixty day bye, which he could renew for an additional thirty days.

Conceptually, the time element will be central. If the President acts when there is still the opportunity for diplomatic and political means to succeed and avoid war, he may have denied Congress the deliberative opportunity it needs; an avoidable war will not be avoided. Yet if he waits too long, he may court disaster. And only in hindsight (and not always then) do we know how long is too long. In 1981, Israel destroyed Iraq’s Osirak nuclear reactor. It was not yet operational, but Israel was afraid that if it waited until it was producing weapon grade material that might be used in bombs potentially directed at Israel, it would have waited too long. Perhaps some material might already have been created, unbeknownst to the Israelis, that could be weaponized; in any case, waiting and then destroying an operational reactor would risk mass nuclear contamination. ⁽¹⁷⁸⁾ Or, more famously, consider the Soviet effort to install missiles in Cuba. While the installation may have made the American homeland more vulnerable to a nuclear attack, no one suggested that such an attack was imminent. In fact, the imminent danger was brought about not by the Soviet action, but by President Kennedy’s response to it. ⁽¹⁷⁹⁾ Similarly, when President George W. Bush invaded Iraq in 2003, it was not threatening the United States, but the invasion itself raised the possibility that it might use weapons of mass destruction (which it later turned out it did not possess). Presidential action addressing an ostensible crisis may bring about an actual or potential one. By this point in 2003, consideration of the time element, supposedly central, had simply vanished.

More fundamentally, what is to be the locus of the decision to go to war? It may well be that Presidents cannot be trusted, that they cannot be counted on to disentangle personal and national interests, that they may cynically seek to create a sense of emergency when they know quite well that no emergency exists. Democracy teaches us to mistrust our rulers, so that we are always ready to throw them out of office. But if not the President, who? Certainly not Congress, with its 535 members.

Who has not experienced terror and the fear of death, only to awaken safely in bed? Or, on the contrary, who has not heard of someone driving routinely, perhaps day dreaming or listening to music, only to be struck suddenly by an unseen speeding vehicle? Crises are not announced in sonorous tones by a celestial butler, but instead are labels officials (and others) impose on events. We may accept an abstract definition, like a serious threat to a high priority goal that requires an urgent response, but its application dissolves consensus. Serious, but how serious? As terrible as 9/11 was, it did not threaten the survival of the nation. But if 9/11 could not qualify as “serious,” what could? Who now regards preventing North Vietnam from conquering South Vietnam as serious enough to constitute a crisis? More generally, is preserving credibility a high priority goal? The importance of appearances and expectations should not be underestimated. Yet proclaiming a credibility issue embodies a certain circularity: by pronouncing that our credibility is at stake, we make our credibility at stake. It also runs the risk of elevating a passing slight to a cosmic level, where face saving compromises may be hard to accept. An urgent response? Delay may suggest indecision and embolden adversaries, but stepping back and weighing consequences and alternatives may prove a wise investment. He who hesitates is lost, but sometimes it makes sense to look before you leap.

In the world of international politics, leaders may mistake something else for a crisis or mistake a crisis for something else. Events move swiftly, information is radically incomplete and imperfect, psychological factors like confirmation bias, loss aversion, or reference dependence may warp perceptions, personal careers and national goals may be on the line, personalities and temperaments will generate conflict. Intelligent, experienced, reasonable persons doing their best will make mistakes. And, of course, leaders will not always be intelligent, experienced, reasonable persons doing their best. Recall Cicero’s maxim that the safety of the people is the highest law. ⁽¹⁸⁰⁾ Can we take the President’s word that the safety of the people is truly in peril?

Civil law systems that trace their lineage to the Roman Republic generally say Yes. For the most part, they explicitly incorporate war and emergency powers in their constitutions, following the Roman example, where consuls with the approval of the Senate could appoint dictators for a six month term, with the dictators dependent upon the Senate for funding. ⁽¹⁸¹⁾ Article 48 of the Weimar constitution permitted the president in time of emergency to rule by decree, without the approval of the Reichstag, ⁽¹⁸²⁾ and article 16 of the constitution of the French Fifth Republic permits the President to declare a state of siege “[w]hen the institutions of the Republic, the independence of the Nation, the integrity of the territory or the compliance with its international commitments are threatened in a serious and immediate manner and regular operation of the constitutional public authorities is interrupted.” ⁽¹⁸³⁾ The constitution does not, however, address the President’s powers, except to provide that he “shall take the measures required by these circumstances.” In this, the French followed the path of the ancient Roman Republic.

The United States Constitution, like most common law systems, includes no comparable provision, perhaps implying more skepticism as to the virtues of leadership. Indeed, we can imagine a casual reader echoing the view of a modern theorist that “bringing emergencies into the law contaminates the law itself by making it accommodate practices that will of necessity spoil the law.” ⁽¹⁸⁴⁾ It is certainly true that the Constitution’s war declaration requirement is intended to serve, as a great scholar remarked in a slightly different context, as “an invitation to struggle,” ⁽¹⁸⁵⁾ that is, one of the numerous checks and balances built into the system. And the ambiguities of the clause (and the much later War Powers Act), by promoting turf battles, might seem to ensure that no single branch would establish dominance, preventing spoilage of the law. Shifting exigencies generate patterns of conduct that modify or even reverse the text. In foreign affairs, the key rhetorical gambit is often the evocation of crisis. Apart from a mention regarding the suspension of habeas corpus, ⁽¹⁸⁶⁾ the Constitution is silent on the subject of crises. But if the safety of the people is the highest law, ⁽¹⁸⁷⁾ then the power to designate situations as crises is central. For crises enormously expand presidential discretion and, relatedly, are seen as essential to the presidential greatness that egos may crave.

For the declare war clause to work, the actors, Congress and the President, must be willing to struggle. The evidence is overwhelming, however, that Congress, invariably opportunistic, is ordinarily unwilling to enter the fray. When the President is popular, struggle is the last thing on its mind. As a consequence, the Framers’ insistence that Congress be key in initiating American involvement in war has been repealed by events—and by Congress’ own persistent reluctance. When war or, indeed, any military action, is imminent, there is normally an enormous public demand for leadership, which can come only from the President, and in the exhilarating early stage, he typically becomes very popular. Tied to this is the widespread conviction that the end of victory justifies nearly any means (as Hughes put it, “the power to wage war implies the power to wage war successfully”) ⁽¹⁸⁸⁾ which quickly translates into an unspoken license to expand presidential powers within limits that are broad, indefinite, and shifting. ⁽¹⁸⁹⁾ In such circumstances, Presidents will likely find irresistible pressures and incentives urging them on to ever more vigorous leadership. Congress, shoved to the background by events, will be aware that leadership is not its role and, in fact, with hundreds of members, is simply not possible. It is literally a supporting player, and by supporting the war, it is seen as supporting the country, though it is simultaneously also supporting the President.

We are used to assuming that politicians reflexively seek to extend their power, but in the question of whether to go to war, members of Congress understand that there will be plenty of time later to revise their views, maybe qualifying or even, like Senator Fulbright, withdrawing their support. If the war turns out to be popular, they can claim they supported it; if unpopular, they can call it the President’s war and distance themselves from it, in an extreme case even ending it, as they did with Vietnam. But during that very early stage, it is the President’s show. Credit and blame, rather than policy or constitutional concerns, tend to drive congressional rhetoric. So powerful are the incentives that even when the facts presented clearly fail to constitute a crisis (Gulf of Tonkin resolution) or the enemy poses no imminent threat (the Houthis in Yemen), the President prevails with ease. Congress may declare war explicitly or implicitly, but in either case, tends to be supine before the President. The view that “Congress’ reluctance to issue a formal declaration of war since World War II reflects a domestic concern over the aggregation of power in the executive branch” ⁽¹⁹⁰⁾ gets things precisely backwards. The political trumps the constitutional.

Of course, Congress would not abrogate its responsibility if the voters demanded it to act. But though over three-quarters of Americans report thinking it “too risky” to give Presidents more power, ⁽¹⁹¹⁾ the public has acquiesced quietly to this development, perhaps regarding it as natural, unavoidable or desirable. Congressional refusal to fund the Vietnam War is frequently raised as an illustration of legislative power. But when one recalls that it followed after nearly 60,000 American deaths, over 150,000 wounded, hundreds of billions of dollars spent, and countless protests and demonstrations, it seems like a very tardy arrival at the fair. Indeed, had the presidency not been so weakened by a scandal quite unrelated to the war powers, it is doubtful funding would have been cut of at all. The public wants leadership, often irrespective of its direction, and two legislative chambers with 535 talkative, egotistical members cannot provide it. Congress’ role has tended, especially at the beginning, to be cheerleading.

A formal declaration of war, whether following a fabricated crisis (like the Gulf of Tonkin incident) or a national trauma (like 9/11), seems to strike both the President and Congress as ill advised. For it may add pressure to achieve victory when only compromise turns out to be realistic, raising hopes and expectations that cannot be fulfilled; it may make it more difficult to de-escalate or withdraw because the initial commitment was so great; and it may have legal consequences, domestic and international, that may not be helpful. Probably the biggest impact flowing from a declaration would result simply from its not having been invoked for three-quarters of a century. This would set it apart from the far more common AUMFs, identify the crisis as greater than and different from more recent crises, and generate immense visibility. But it would be the rarity of the declaration rather than the declaration itself that likely would be responsible for the elevated impact. Put differently, the distinctive consequences flowing from the declaration would mainly be a function of its past disuse, as if it were an inconvenient legal technicality of trifling practical value.

Disuse, in other words, is taken as evidence that the war declaration clause is merely a tired anachronism, a kind of legal vermiform appendix. But this view is hard to sustain. It is true, of course, that international events move much faster today than in 1787. However, it was always understood that the President could respond unilaterally to an attack, when time was of the essence; this has not changed. And a glance at the occasions where Presidents have acted on their own reveals no urgency that would render a congressional role impossible or impractical. In fact, speedier technology would make it much easier today to gather Congress and present it with information than was true centuries ago. One change that might argue for a more aggressive role is the atrophying of the Electoral College—the Framers believed it would guard against demagogues—and the recent weakening of political party organizations—party bosses tended to prefer candidates more moderate than party activists. But by themselves, these changes would not seem sufficiently potent to cast Congress aside.

Yet a key attribute of sovereignty is precisely the right and ability to make war. On the list of powers that “free and independent states” possess, for example, the Declaration of Independence lists first the right “to levy war [and] conclude peace.” The international community, such as it is, is unconcerned with the intrastate maneuverings that preceded these decisions; its level of analysis is confined to the nation. But constitutionally, the internal events are of supreme importance. Can Congress re-delegate the power granted to it by the Constitution to the President? The growth of the administrative state has left the courts exceedingly reluctant to invoke the rule against re-delegation, for it seems so clearly impractical. But it is one thing to re-delegate to the executive the power to regulate, say, highway construction or small business loans, and quite another to do so on matters of war and peace.

When practice consistently departs from constitutional text, what to do? Courts have replied that practice illuminates the text, and with this hocus-pocus have eliminated the stark fact of contradiction. Put differently, the practical demise of the declare war clause and the acknowledged triumph of the presidency may be viewed as another example of the power of the Living Constitution approach to constitutional law. The originalist view centering on Congress has seemed impractical, outdated, and thus in need of reformulation. Both Congress and the Presidents have been willing, in fact often eager, to collude to bring about presidential dominance, never even hinting at its problematical constitutional status.

Is there any reason to suppose that requiring formal war declarations would change the current pattern of presidential initiation and congressional subservience? Perhaps, the war declaration’s highlighting the issue in stark terms might alter the national debate, inducing caution in some and xenophobia in others. But it is hard to see how declarations could make a substantial difference. By definition, the declaration would occur at the beginning of the war, in other words, at the moment of public euphoria, when few elected officials would dare say no.

The President and Congress appear content with their present roles. Thus, declarations of war—in, say, an AUMF form, if not as formal declarations—are hardly dead letters. Presidents see the AUMFs’ importance in mobilizing public support and dominating Congress. Some academics ⁽¹⁹²⁾ and pundits ⁽¹⁹³⁾ may press for formal declarations to strengthen Congress’ hand, but Congress does not want its hand strengthened. With power comes responsibility, and Congress, for the most part, does not want responsibility. The presidential-congressional struggle that was supposed to ensue is nowhere to be seen. “The life of the law,” as Holmes famously announced, “has not been logic. It has been experience,” ⁽¹⁹⁴⁾ and if the Constitution points to a congressionally centered reading of the war declaration clause, the two branches have long since settled into a presidentially centered mode. “The American people are not easily persuaded to embrace war,” concluded one authority, ⁽¹⁹⁵⁾ but recent evidence strongly suggests otherwise. The Framers did not want war making to be easy, but in this their plans have failed.

Is the clause a dead letter or an invitation to struggle? The answer, it seems, is neither.