The War on Terrorism and the Modern Relevance of the Congressional Power to "Declare War" (2002)

Two days after terrorists attacked World Trade Center and Pentagon, a Harris poll conducted for Time/CNN reported that nearly two of three Americans believed that United States should declare (1) A StrategyOne survey also conducted two days after attacks found eighty-one percent of Americans in favor of such action, with only eight percent opposed. (2) That same day, nine members of Congress announced their support for a formal declaration of war. (3) The idea was quickly embraced in newspapers, (4) and even by Harvard Law School Professor Alan Dershowitz. (5) In fact, as a constitutional matter, President needed no approval from Congress to use lethal force in response to terrorist attacks. Even War Powers Resolution recognizes independent constitutional power of President to send U.S. forces into combat without legislative approval in response to an attack on United States or its armed forces. (6) But as a political matter, getting Congress on record by statute in support of an effective response was very important. Congress provided support for President's response in form of a joint resolution, providing in part: [T]he President is authorized to use all necessary and force against those nations, organizations, or persons he determines planned, authorized, committed, or aided terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against United States by such nations, organizations or persons. (7) During debate, concern was expressed about not giving President a blank check, (8) as Congress did in enacting Gulf of Tonkin Resolution in August, 1964. (9) This argument undercut cherished myth that Congress was not a full partner in committing United States to in Indochina and ignored reality that declarations of war were by their nature blank checks. To allay such concerns, language of resolution seemed carefully designed to provide an out for legislators if campaign went badly, as it would not be difficult to argue that any presidential action that later proved unpopular with voters was not appropriate and was thus unauthorized by Congress. In end, however, even Senate Foreign Relations Committee Chairman Joseph Biden acknowledged that resolution passed by Congress was the constitutional equivalent of a declaration of (10) As a matter of constitutional law, Senator Biden was exactly fight; a joint resolution authorizing President to use military force fully satisfies any requirement for legislative approval under Article I, Section 8, Clause 11 of Constitution. (11) But such statements betray a fundamental misconception of relative roles of Congress and President in commitment and use of U.S. armed forces abroad and of nature of in current international context. As a matter of international law, a formal declaration of is an anachronistic irrelevancy. This misconception is result of debates over past three decades in which historical understanding and development of powers was neglected. Given revived public interest in these issues, this is an opportune time to clarify meaning of Congress's power to declare I. THE CONSTITUTIONAL ALLOCATION OF POWERS RELATED TO THE USE OF MILITARY FORCE The debate over constitutional separation of powers concerning use of armed force abroad during past three decades has been remarkably unimpressive. Few commentators have taken time to look seriously at historical aspect of problem, and some act as if 1972-73 War Powers Resolution debates were an issue of first impression. Throughout most of our history, both Congress and President understood that decisions regarding foreign affairs were different from domestic issues and were province of executive except in areas where Constitution had made a clear exception. …