Who Declares War?

I ask who can we declare war on?

American use of force ultimately requires Congressional passive approval, at least; but it does not require a formal declaration of war complete with slapping an ambassador's face with a white glove to start. Sadly, the gray area of this issue is open to dramatic flip flops based on what party is operating in that legal grey zone. But I ask, who can Congress declare war on?

Obviously, it isn't cool to use force now. But we aren't about to make declarations of war great again:

Congressional approval of war is a more nuanced standard than you may want to believe. As the commander-in-chief, the president has the power to use the military.

Sure, Congress has the power to declare war--an affirmative approval--but as the history shows, our military has been sent into action without that document since our founding as a nation. You'd think the founders would have been more outraged at that, no?

By funding military operations or failing to ban specific actions, Congress passively approves president-initiated military action.

Certainly, by refusing to constrain the president regarding Iran, the Senate at least signaled Congress is not going to actively object to presidential powers.

This analyst didn't look at the long history of using force without declarations of war, but raised a practical problem of requiring Congressional approval:

Another critical change is in communication and transparency. A congressional debate over going to war in the 18th century could unfold without the knowledge of the would-be adversary. Even if a spy were present, it would take substantial time to relay that information. Today, by contrast, congressional debates are by nature public. Even if a secret session were called, spies in Washington could immediately alert the target nation, introducing the danger of a preemptive strike on U.S. forces.

Mind you, if the president ordering military action is unconstitutional, mere technological change wouldn't be an excuse to violate the Constitution. But even the War Powers Resolution concedes the president can initiate military action. It simply requires the president to report to Congress soon after and establishes a deadline to conclude military action without Congressional approval.

Presidents of both parties have objected to this limit on their commander-in-chief powers as an unconstitutional power grab. And even when presidents have followed provisions, they have emphasized that they are doing so voluntarily without recognizing any duty to follow it.

But when you don’t even want to pretend to comply with the Congressionally imposed limitations, the mental gymnastics to deny it applies to what you order can be astounding (from a NYT article):

In contending that the limited American role did not oblige the administration to ask for authorization under the War Powers Resolution, the report asserted that “U.S. operations do not involve sustained fighting or active exchanges of fire with hostile forces, nor do they involve U.S. ground troops.” ...

The two senior administration lawyers contended that American forces had not been in “hostilities” at least since early April, when NATO took over the responsibility for the no-fly zone and the United States shifted to primarily a supporting role — providing refueling and surveillance to allied warplanes, although remotely piloted drones operated by the United States periodically fire missiles, too.

They argued that United States forces are at little risk because there are no troops on the ground and Libyan forces are unable to exchange fire with them meaningfully.

Fascinating, no? If the enemy is basically a form of target practice from the air, it ain’t a war.

I think (back to my initial post quoted) that changing circumstances have undermined the assumptions of our Constitutional provisions on how America goes to war:

The creation of a large standing military has changed the assumptions that existed in the 18th century when our fuzzy war powers were written into our Constitution.

At our nation's birth, the president had the power to use the small American military as he saw fit. And whether it was the naval services in the Quasi-War and Tripolitan War or ground forces in Indian wars, presidents did just that without constitutional crises.

And if America was invaded, the president needed to be able to react fast without waiting for Congress to convene and approve fighting. Besides, the state militias would be called up by the states as the first line of defense given the small size of the American Army.

But what about a foreign war? The Navy was small. Militias couldn't be sent abroad. And the Army and Marine Corps were small. Despite the theoretical power of the president to start a war, under the real world circumstances of the time, the practical limitation was that Congress would have to authorize the creation of an army and navy to wage a foreign war. So a Congressional affirmative consent was needed.

That distinction was probably well understood at the time and accepted, clearly.

But now the distinction between what is allowed in theory and what is practically possible no longer exists to a large degree. Since World War II, the president has a large and capable military under command that can use that fuzzy authority to wage war absent Congressional action to stop the president.

I'm no lawyer. I'm a history and political science major. And I had but one international law class that I've largely forgotten.

But the match between Constitutional powers and military capabilities that existed for most of our history and the divergence since World War II seems to be the biggest problem in the whole "what is legal" question we debate these days over war powers, and which largely seems to follow what party you are for and what party you are against (not me--I never argued that the Libya War violated our Constitution as many Republicans did in 2011).

A large and capable active military combined with the figurative shrinking of the planet crumpled the assumptions. The Atlantic is still a security shield for America, but it isn’t the shield it once was for policy deliberation. Ditto the Pacific.

And be very careful about demanding a declaration of war as the only lawful means of using military force. Because there are unintended consequences of Congress declaring war (I'm assuming this is still true because a recent brief cites it):

With respect to domestic law, a declaration of war automatically triggers many standby statutory authorities conferring special powers on the President with respect to the military, foreign trade, transportation, communications, manufacturing, alien enemies, etc. In contrast, no standby authorities appear to be triggered automatically by an authorization for the use of force, although the executive branch has argued, with varying success, that the authorization to use force in response to the terrorist attacks of 2001 provided a statutory exception to certain statutory prohibitions.

This was done basically to guard against Washington, D.C. being nuked in the opening minutes of World War III. That would prevent Congress from passing a lot of enabling laws as it did for World War II.

Assuming that matters.

The surviving remnants of Congress could meet somewhere, declare war, and automatically trigger the powers before scattering for shelter. Yay, foresight.

So much of this Congressional authorization for military action debate is just political posturing, in my opinion.

Now, what I want to know is whether Congress could declare war—or authorize the use of force—against subsets of nations:

Could Congress declare war on a part of a country rather than an entire country?

I mean, China, Russia, and Iran are basically empires that in theory could break up.

And I've already wondered if America could declare war just on Iran's Revolutionary Guard Corps. So Iran is potentially vulnerable to another method of focused war. While North Korea is no empire, it could be vulnerable to this angle if we simply declare war on the North Korean Communist Party.

I also wondered if an enemy might try something similar against America and how that would play out.

Anyway, that's my question. Much of the rest of this debate is political posturing that turns on a dime when roles are reversed.

NOTE: Image from bloggernews.net many years ago. Is the site still active? Don’t know.