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In a television interview with Neil Cavuto on Fox News on Thursday, September 14, 2017, when asked about war powers, Rand Paul responded that it is clear that the Founders in the Constitution gave the power to declare war, and therefore, the power to initiate war, to Congress. "It's in the Federalist Papers...it's all over the place."
While I respect Rand Paul as the member of Congress who most understands the original intent of the U.S. Constitution, and I appreciate the fact that he stands up for the Constitution, he is not completely accurate in his interpretation of war powers.
I am not a necessarily a war-hawk, and I do not necessarily always agree with every single military operation the United States engages in, but I am a firm believer that national security extends to international issues beyond merely defending ourselves against direct attacks on our own soil. Rand Paul is correct, as his father Ron Paul was, that the Founding Fathers were concerned with "foreign entanglements." But, what is truly the definition of a foreign entanglement?
Yes, Mr. Paul is correct that the Congress has the authorization to declare war. But, that does not mean it is only their authority to "initiate" war, as Rand said to Cavuto on Fox News. Article I, Section 8 of the United States Constitution states that the power to "Declare War" is granted to the U.S. Congress, but a declaration of war is not the same thing as waging war.
Constitutionally, there is no necessity for a declaration of war to accompany every military action. The manners and procedures of such a requirement would be burdensome and obstructive to the President's need to be decisive and swift in military matters, when a quick hand is called for. A Declaration of War is a formal, legislative act that informs the world of a state of war existing between the bodies named in that declaration, and also reveals that a long, drawn-out conflict is the subject of such a declaration. When a swift action is required, the President is authorized as Commander in Chief to carry out that action. Congress is unable to move quickly. Swiftness is not a common thing associated with legislatures who are more designed to debate before coming to a conclusion.
We know that the powers to "wage" war and "declare" war are separate not only because they are described separately in various writings by the Founding Fathers, but also because they are described as separate and distinct powers in the Articles of Confederation.
We know that the powers to "wage" war and "declare" war are separate not only because they are described separately in various writings by the Founding Fathers, but also because they are described as separate and distinct powers in the Articles of Confederation.
As for the claim that undeclared wars are unconstitutional, Thomas Jefferson and James Madison both carried out undeclared wars when they sent our military forces into battle against the Barbary Pirates. Did Jefferson and Madison not understand what was a constitutional use of war powers, or were their actions perfectly constitutional? Knowing that they were champions of the U.S. Constitution, their actions as President of the United States can be used as a yard stick in helping us understand the original intent of the Constitution regarding war powers." It is clear the President is authorized to "wage" war without a "declaration" of war simply because of the fact that Jefferson, and Madison waged war without a declaration when they were President of the United States.
Jefferson, and Madison, did, however, receive an apportionment of funding for the conflicts with the Barbary Pirates, and there was congressional knowledge of the conflict through mechanisms other than a Declaration of War. The same goes with modern war maneuvers orchestrated by the Commander in Chief.
As a social contract, the U.S. Constitution must be interpreted based on original intent, rather than a being seen as a living breathing document influenced by the whims of politicians, judges, and other influential forces who often do so with the aim of seeking to further their ideological narratives.
The delegates in the Constitutional Convention battled over many issues during the convention in Philadelphia during the Summer of 1787. They feared the central government being given too much authority, and using those powers against the people of the United States. For example, they agreed that among the primary reasons for the creation of the federal government must be common defense, yet, they also feared the United States Government having a standing army that could be used against the people, or as an offensive force to take territory by military might in the name of conquest. While some envisioned the United States becoming the "next great empire," they never desired that to occur through brutal military conquest, and instead by various countries and territories joining the union of States because of their desire to be a part of the Great Experiment. George Washington and John Adams were also very adamant about foreign entanglements, and warned constantly to their colleagues, and future generations, against involving the United States in conflicts that do not have a strong bearing or a direct connection to our own territories, or interests.
The Framers of the Constitution did not place the "foreign entanglements" language in the U.S. Constitution, however. While most of them understood the dangers of foreign entanglements, they also did not agree with the concepts of isolationism or protectionism, or at least not when these concepts are followed to an extreme degree. While we wish to protect American interests, and only involve ourselves in situations directly involving the United States' interests, even the Framers understood that we live in a global community where trade and diplomacy with various nations was a necessity if the United States was to prosper.
The question, then, became, "How do we create a system that protects American interests, and essentially places 'America First,' without completely ignoring the reality that free trade and participation in the global community is also a necessity?"
It was understood that a central government that is too strong could become tyrannical, and lead to a line of oligarchs gaining control of our government. However, it was also understood that a system with too weak of a central government, such as we may see in a confederacy, or pure democracy, was also dangerous because despite the fear of a big government, in some issues a strong, central authority is necessary (such as in the case of national security). The U.S. Constitution was written to create a federal government with enough power to serve as a solid central government, and mediate conflicts between the States, while also restraining itself from interfering with localism (local issues handled by local governance).
When it came to forming the federal government, the three branches were designed to be distinct, and to abide by the concept of a "separation of powers." The legislative branch, which is the United States Congress, possesses all legislative powers, and no other branch possesses any legislative authorities (Article I, Section 1). Likewise, the executive branch possesses all executive powers, and the judicial branch possesses all judicial powers. However, based on necessity, there are some powers that are concurrent, though the individual branch's authority over these issues are very distinct.
For the United States Government, matters regarding "war" are shared between the U.S. Congress, and the United States President. While both parts of the federal government hold authorities regarding war, their powers regarding the subject are very distinct, and different from each other.
While the Founding Fathers feared the potential of the President becoming a tyrannical leader, and did not wish for the President to hold "all" military authorities as would a monarch, it was also realized that the President, if he was to carry out his duties as Commander in Chief in a proper manner, needed to possess some powers regarding military activities.
As stated before, in the Articles of Confederation there is a distinction made between "waging" war and "declaring" war. In the Articles, Congress held both powers, and the lessons learned during the forging of the new country revealed that doing so proved to be very restrictive, and had the potential of creating problems when it came to military strategy.
During the debates of the federal constitution in 1787, Madison's Notes reveal that Article II of the Constitution was written primarily with General George Washington in mind. However, it was also understood that all Presidents would not share the same military prowess as Washington. So, while granting to the President the authority to "wage" war, and leaving the power to "declare" war to the Congress, in Article II of the U.S. Constitution the document is careful to instruct that President that "he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices." In other words, while not required to, he may need to talk to the other military minds around him so as to assist him in his decision making when it comes to military decisions.
Article II reveals to us that the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States," so there is no doubt of his position as the chief commander over the military forces. But, there is a caveat. The clause also includes, "when called into the actual Service of the United States."
In the case of the State militias (and most folks include the National Guard when it comes to language regarding militias), a militia can be called into the actual Service of the United States, or of a State. In fact, the paycheck of a National Guard member can change from being issued by the federal government, or their State, depending upon who called up their militia unit.
In the case of the U.S. Military, we need to ask ourselves, "When is the U.S. Military in the actual Service of the United States?"
The answer is, "Always."
Let us return to Article I, Section 8 of the United States Constitution to clear all of this up. Clause 11 tells us that Congress has the authority to declare war. That is not a military order, or action, but a piece of legislation that states we are in a condition of war with other entities. That piece of legislation serves as a formal declaration to the rest of the world, protecting us in many ways. For example, if we are in a formal state of war that has been declared by our Congress, and a country that is not a part of the theater of war inadvertently enters the field of battle and is struck by our munitions, it cannot be assumed that we committed an act of war against that country because they had been warned by a formal declaration that the theater they were struck in is indeed a war zone. However, if Congress has not formally declared war, the risk that such an action could be considered an act of war exists, and the responsibility rests on the Commander in Chief's shoulders because it was he, without Congress, that entered the U.S. Military into that battlefield.
Clause 11 also authorizes Congress to "grant Letters of Marque and Reprisal," which are maritime documents authorizing privately owned ships to act on behalf of the U.S. Navy.
Clause 12 authorizes Congress to "raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." This means that as long as the money is being appropriated for the Army, which must be approved every two years so as to enable the representatives of the People (House of Representatives) to guard against a standing army by giving the House the option to starve the Army of funding if they deem it necessary, the army is in the Service of the United States.
Clause 13 grants to Congress the authority to "provide and maintain a Navy," which means the Navy shall be funded and raised at all times; which also means the U.S. Navy is always in the Service of the United States.
Clause 14 states that the Congress shall "make Rules for the Government and Regulation of the land and naval Forces." Those of us who served in the U.S. Military will recognize that as the Uniform Code of Military Justice (UCMJ). In short, the constitution of the military. In other words, our access to our natural rights in the military are not the same as it is for other citizens of the United States. For the sake of being a well-trained and well-disciplined fighting unit, the rules for living in the military are very different than what it is for civilians.
Then, the next couple clauses in Article I, Section 8 are specifically directed towards militias.
Now, let's return to Article II, Section 2.
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices."
The United States Military is always in actual Service of the United States, therefore, the President may utilize those forces as he deems necessary because he is the Commander in Chief. However, if the use of the military needs to extend to a declared theater of war, then Congress needs to provide a "Declaration of War" for that to happen. Use of the military on a battlefield or in various military operations is not dependent upon a Declaration of War. Military forces may go into military action for operations the President of the United States believes to be necessary to protect the interests of the United States without congressional approval because the U.S. Military, unlike militias, are always (unless the Army is stripped of its funding) in the actual Service of the United States. However, while the President is not required to receive congressional approval for each and every military action, Congress does have tools to stop such activity if they believe the President is abusing those powers.
Jefferson, and Madison, did, however, receive an apportionment of funding for the conflicts with the Barbary Pirates, and there was congressional knowledge of the conflict through mechanisms other than a Declaration of War. The same goes with modern war maneuvers orchestrated by the Commander in Chief.
As a social contract, the U.S. Constitution must be interpreted based on original intent, rather than a being seen as a living breathing document influenced by the whims of politicians, judges, and other influential forces who often do so with the aim of seeking to further their ideological narratives.
The delegates in the Constitutional Convention battled over many issues during the convention in Philadelphia during the Summer of 1787. They feared the central government being given too much authority, and using those powers against the people of the United States. For example, they agreed that among the primary reasons for the creation of the federal government must be common defense, yet, they also feared the United States Government having a standing army that could be used against the people, or as an offensive force to take territory by military might in the name of conquest. While some envisioned the United States becoming the "next great empire," they never desired that to occur through brutal military conquest, and instead by various countries and territories joining the union of States because of their desire to be a part of the Great Experiment. George Washington and John Adams were also very adamant about foreign entanglements, and warned constantly to their colleagues, and future generations, against involving the United States in conflicts that do not have a strong bearing or a direct connection to our own territories, or interests.
The Framers of the Constitution did not place the "foreign entanglements" language in the U.S. Constitution, however. While most of them understood the dangers of foreign entanglements, they also did not agree with the concepts of isolationism or protectionism, or at least not when these concepts are followed to an extreme degree. While we wish to protect American interests, and only involve ourselves in situations directly involving the United States' interests, even the Framers understood that we live in a global community where trade and diplomacy with various nations was a necessity if the United States was to prosper.
The question, then, became, "How do we create a system that protects American interests, and essentially places 'America First,' without completely ignoring the reality that free trade and participation in the global community is also a necessity?"
It was understood that a central government that is too strong could become tyrannical, and lead to a line of oligarchs gaining control of our government. However, it was also understood that a system with too weak of a central government, such as we may see in a confederacy, or pure democracy, was also dangerous because despite the fear of a big government, in some issues a strong, central authority is necessary (such as in the case of national security). The U.S. Constitution was written to create a federal government with enough power to serve as a solid central government, and mediate conflicts between the States, while also restraining itself from interfering with localism (local issues handled by local governance).
When it came to forming the federal government, the three branches were designed to be distinct, and to abide by the concept of a "separation of powers." The legislative branch, which is the United States Congress, possesses all legislative powers, and no other branch possesses any legislative authorities (Article I, Section 1). Likewise, the executive branch possesses all executive powers, and the judicial branch possesses all judicial powers. However, based on necessity, there are some powers that are concurrent, though the individual branch's authority over these issues are very distinct.
For the United States Government, matters regarding "war" are shared between the U.S. Congress, and the United States President. While both parts of the federal government hold authorities regarding war, their powers regarding the subject are very distinct, and different from each other.
While the Founding Fathers feared the potential of the President becoming a tyrannical leader, and did not wish for the President to hold "all" military authorities as would a monarch, it was also realized that the President, if he was to carry out his duties as Commander in Chief in a proper manner, needed to possess some powers regarding military activities.
As stated before, in the Articles of Confederation there is a distinction made between "waging" war and "declaring" war. In the Articles, Congress held both powers, and the lessons learned during the forging of the new country revealed that doing so proved to be very restrictive, and had the potential of creating problems when it came to military strategy.
During the debates of the federal constitution in 1787, Madison's Notes reveal that Article II of the Constitution was written primarily with General George Washington in mind. However, it was also understood that all Presidents would not share the same military prowess as Washington. So, while granting to the President the authority to "wage" war, and leaving the power to "declare" war to the Congress, in Article II of the U.S. Constitution the document is careful to instruct that President that "he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices." In other words, while not required to, he may need to talk to the other military minds around him so as to assist him in his decision making when it comes to military decisions.
Article II reveals to us that the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States," so there is no doubt of his position as the chief commander over the military forces. But, there is a caveat. The clause also includes, "when called into the actual Service of the United States."
In the case of the State militias (and most folks include the National Guard when it comes to language regarding militias), a militia can be called into the actual Service of the United States, or of a State. In fact, the paycheck of a National Guard member can change from being issued by the federal government, or their State, depending upon who called up their militia unit.
In the case of the U.S. Military, we need to ask ourselves, "When is the U.S. Military in the actual Service of the United States?"
The answer is, "Always."
Let us return to Article I, Section 8 of the United States Constitution to clear all of this up. Clause 11 tells us that Congress has the authority to declare war. That is not a military order, or action, but a piece of legislation that states we are in a condition of war with other entities. That piece of legislation serves as a formal declaration to the rest of the world, protecting us in many ways. For example, if we are in a formal state of war that has been declared by our Congress, and a country that is not a part of the theater of war inadvertently enters the field of battle and is struck by our munitions, it cannot be assumed that we committed an act of war against that country because they had been warned by a formal declaration that the theater they were struck in is indeed a war zone. However, if Congress has not formally declared war, the risk that such an action could be considered an act of war exists, and the responsibility rests on the Commander in Chief's shoulders because it was he, without Congress, that entered the U.S. Military into that battlefield.
Clause 11 also authorizes Congress to "grant Letters of Marque and Reprisal," which are maritime documents authorizing privately owned ships to act on behalf of the U.S. Navy.
Clause 12 authorizes Congress to "raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." This means that as long as the money is being appropriated for the Army, which must be approved every two years so as to enable the representatives of the People (House of Representatives) to guard against a standing army by giving the House the option to starve the Army of funding if they deem it necessary, the army is in the Service of the United States.
Clause 13 grants to Congress the authority to "provide and maintain a Navy," which means the Navy shall be funded and raised at all times; which also means the U.S. Navy is always in the Service of the United States.
Clause 14 states that the Congress shall "make Rules for the Government and Regulation of the land and naval Forces." Those of us who served in the U.S. Military will recognize that as the Uniform Code of Military Justice (UCMJ). In short, the constitution of the military. In other words, our access to our natural rights in the military are not the same as it is for other citizens of the United States. For the sake of being a well-trained and well-disciplined fighting unit, the rules for living in the military are very different than what it is for civilians.
Then, the next couple clauses in Article I, Section 8 are specifically directed towards militias.
Now, let's return to Article II, Section 2.
"The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices."
The United States Military is always in actual Service of the United States, therefore, the President may utilize those forces as he deems necessary because he is the Commander in Chief. However, if the use of the military needs to extend to a declared theater of war, then Congress needs to provide a "Declaration of War" for that to happen. Use of the military on a battlefield or in various military operations is not dependent upon a Declaration of War. Military forces may go into military action for operations the President of the United States believes to be necessary to protect the interests of the United States without congressional approval because the U.S. Military, unlike militias, are always (unless the Army is stripped of its funding) in the actual Service of the United States. However, while the President is not required to receive congressional approval for each and every military action, Congress does have tools to stop such activity if they believe the President is abusing those powers.
That all said, I am a true believer in some cases the President ought to discuss his plan of action with Congress before using the military if a new conflict may arise and the element of surprise is not a necessity. However, if the theater already exists (of which, our presence in the Middle East, and more specifically, Iraq and Syria, does), or if the necessity to be quiet about it, swift, and decisive arises, despite my feelings that the President should consult Congress, it is not constitutionally necessary for him to do so.
Understand, I agree that the Framers of the U.S. Constitution did not desire the United States to be a "war-mongering" country with conquest on its heart. However, let us not be fooled in going to some other extreme by saying they did not want us to be involved in worldwide conflicts at all, or that the President should somehow be hamstrung by Congress before being able to take any action he deems necessary. The Framers definitely saw the reality that we would likely be involved in long, drawn out declared wars and swift military actions. Sometimes, it was understood, the President would find it necessary to wage war swiftly without consulting Congress. Declared wars and military actions were seen by them as being two different things, which is why Congress has the authority to declare war, and when he deems it necessary, the President has the authority to wage war.
That said, when you see the quotes by the Founding Fathers warning against war or foreign entanglements being tossed around by the anti-war crowd, note that the Founders were referring to declared wars, or conflicts in which the United States has absolutely no interest in for any reason, not the necessary swift military actions that sometimes regrettably appear on our radar and are necessary in order to protect our interests.
One more quick note: The War Powers Act of 1973 is often brought up in these discussions. While, if in line with constitutional authorities, such laws can be important tools in the debate, remember that no law can change constitutional authorities because no law supersedes the U.S. Constitution. In other words, despite arguments to the contrary, including those that use the War Powers Act as their source, the President can, legally, use the military in combat operations without congressional approval, or even letting them know he's going to do so in the first place.
-- Political Pistachio Constitutional News and Commentary
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