General Question

ETpro's avatar

Should the USA Amend the Constitution to allow the President limited powers of war without a Congressional Declaration of War?

Asked by ETpro (34503points) March 21st, 2011

Article I, section 8 of the Constitution is crystal clear. “The Congress shall have Power To… ...provide for the common Defence and general Welfare of the United States;.. ...To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;” As if that were not clear enough, Congress passed the War Powers Act of 1973 stating that the President can send troops into action in foreign lands only by action of Congress.

Even though we have not declared war since our entry into WWII, Presidents from Truman on have taken us into military action after military action with greater or lesser consultation with congress. There is no provision in the Constitution for the outsourcing of the power to declare war to the President, the Supreme Court or anyone else. All wars since WWII have been fought unconstitutionally.

In my view, allowing a President to independently take the nation to war is an extremely dangerous precedent. It takes tremendous ego to even think you should be the leader of the most powerful nation on earth. It takes great charm and charisma to win election to that office. Those are three characteristics often present in psychopaths and determining the difference between a benevolent, altruistic personality and a psychopathic one often takes lengthy observation of behavior. Psychopaths are notoriously able to read other human’s personalities and needs, and conform their behavior to those needs just long enough to get into position to use others as tools to achieve their own grandiose needs for adulation, control and absolute power. Sooner or later, we will get a President who is a psychopath, and if that person has the power to wield the US Military as a tool to achieve their own selfish ends without regards to any consequences to anyone aside from themselves, democracy around the world will be in serious trouble.

All that said, I do recognize that the world moves at a pace today that the Founders could never have foreseen. In the case of Libya, had the President waited to consult with Congress and seek a formal declaration of war, Qaddafi’s armor, tanks and aircraft would have ripped the major cities resisting his dictatorship to shreds. His ground forces would have then taken control of those cites and carries out a massive purge, with the likely civilian death toll being in the millions. With the Arab League on record asking us to prevent that, our inaction would have left Libyan blood on our hands. In addition, where peaceful demonstrations succeeded in changing the governments of President Zine El Abidine Ben Ali in Tunisia and Hosni Muurak in Egypt; if Quddafi used military force and crushed the protests against his rule, it would have signaled all other Arab dictators and monarchs that naked force is the way to hold power forever.

So, in a world where quick, limited military action is sometimes required to stop mass genocide, should we amend the Constitution to give our President the authority to commit US forces in a limited action, with a Constitutionally defined maximum scope and timeframe; but require a Congressional Declaration of War, no outsourcing, for anything beyond such limited action? Or should we just continue to ignore the Constitution with the exception of a couple of widely popular portions such as the right to bear arms and the protection of free speech we like to hear?

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38 Answers

marinelife's avatar

I think the President is the commander in chief and has the right to onvoke the use of military force without authorization from Congress.

jerv's avatar

I will have to double-check, but I thought the POTUS already/still had that authority, at least out to the ninety-day mark :/

WasCy's avatar

No. Flatly. Striking back in self-defense (our own self-defense, or those to whom we owe treaty obligations) is one thing. This is not that thing.

However, with that said, the US Congress has always been mighty accommodating to enabling Presidents to pursue popular wars against unpopular leaders (as soon as the media drummers can make them unpopular enough). This makes me respect John Adams more and more all the time. He was a President who refused the popular cry for war (with France), and it cost him his re-election bid in 1800. They don’t make them like that any more, dammit.

WestRiverrat's avatar

The president currently has more power than he needs to utilize troops as he sees fit without prior congressional approval. Presidents have been doing so since Jefferson sent Lewis and Clark on their expedition.

filmfann's avatar

Roosevelts Great White Fleet is a good example of the President making the call, and the congress following behind.
The Constitution is fine as it is, and I am hesitant to change it.

ETpro's avatar

I asked for opinions and will not argue with any. I’ll confine my comments to clarifing anything the poster asks about in the wuestion and details, or asking for clarification or citations for assertions that I can’t personaly verufy.

@marinelife Thanks for weighing in.

@jerv I am unaware of the constitutional athourity for a 90-day clause. If you can find it, please post a reference to the Article and Section from which it derives.

@WasCy I totally agree, as I think the details made clear.

@WestRiverrat Do you feel that the Lewis and Clark expedition is roughly equivalent to launching 140 cruise missiles, fighter bomber strikes, predator drones and 45 2,000 pound bombs from B2 stealth bombers?

@filmfann Was the Great White Fleet an act of war by Teddy Roosevelt? Whom did that fleet attack?

WestRiverrat's avatar

It was an armed expedition into foreign soil. Even now the US recognizes the tribes met by Lewis and Clark as sovereign nations.

And the war with the Barbary pirates started without congressional approval. In fact if the history I read is correct, Congress was debating how much tribute to give to Tripoli when the USS Enterprise defeated the barbary ship Tripoli

filmfann's avatar

@ETpro The Great White Fleet wasn’t an attack, but a display of American power.
Congress told Roosevelt they wouldn’t pay for such a display. Roosevelt ordered them half way around the world, and told Congress that if they wanted the fleet back, they will have to pay for it.

anartist's avatar

The balance of power was part of the Constitution for a reason.
One man with too much power can make some awful mistakes.

ETpro's avatar

@WestRiverrat Points taken. It’s a long-lived precedent. But it is still contrary to the Constitution, is it not?

@filmfann True. And Congress constitutionally has the power of the purse as well. However, since Teddy Roosevelt used funds already appropriated to get the fleet 12,000 miles away, he was probably within his rights as the nation’s cheif executive.

@anartist I most definitely agree, and the world is full of examples that’s true.

jerv's avatar

@ETpro It isn’t a Constitutional thing per se. It is the War Powers Act , other wise known as US Code, Title 50, Chapter 33. It was passed in 1973 in response to the undeclared war in Vietnam, though that was not the first time that the POTUS invoked his rights under Article II, Section 2 of the Constitution. Korea comes to mind immediately.

ETpro's avatar

@jerv The problem with the War Powers Act is the Constitution doesn’t give Congress the authority to outsource the declaration of war to anyone, be they the Executive, the Judiciary, the UN Security Council or some foreign leader. So I don’t consider a unconstitutional law valid in redefining the Constitution.

jerv's avatar

@ETpro When it comes to the Constitution or anything else even remotely resembling any sort of regulation, including something as trivial as an employer’s Company Policy, the difference between de jure and de facto pretty much makes it all a dog-and-pony show anyways.
As for Constitutional authority, I am trying to recall any time in my life where that has actually mattered, except when someone finds a way to quote or misquote the Constitution to justify whatever it is that they are trying to justify.

Should we amend the Constitution? I see no need to in this case since, for all practical purposes, we have. And it the WPA truly were unconstitutional, why hasn’t the Supreme Court stepped in in the last 37 years in accordance with teh system of checks and balances?

ETpro's avatar

@jerv From what I have seen of Sup[reme Court actions in my lifetime, they mostly do just what you said. They find some snippet or interpretation in case law somewhere to justify what the majority on the court wants to do, then quoite that as justification for their decision. Sooner or later, that approach is going to spell trouble. This will not end well.

CaptainHarley's avatar

I suppose it depends upon whether you believe in the rule of law or not. Right now, the President does NOT have the authority to commit the USA to war without a declaration of war on the part of Congress, regardless of whether he CALLS it war or not. Unfortunately, most presidents since Truman have committed us to wars of various sizes in various places with out bothering to ask Congress a damned thing. This is the path to dictatorship.

jerv's avatar

@CaptainHarley Figure, they spend millions to get a job that pays less than they are used to earning, so of course they are going to enjoy the non-monetary perks of the job… like being able to tell people to go blow shit up!

ETpro's avatar

@CaptainHarley I’m on the same page with you on that.

@jerv The footage on CNN is so cool.

kevbo's avatar

Let’s see…

1. Perhaps some of this ambiguity is related to the incorporation of the UNITED STATES (as opposed to the constitutionally-based United States). That could explain all the wiggle room discussed above. I really don’t have the juice to defend this assertion, though.

2. @ETpro, I think you (understandably) make an all too common error of assuming that the President’s personality has anything to do with anything other than how pre-packaged information or pre-made decisions are presented to the public and most especially with foreign policy actions. Aside from the fact that presidents nowadays are “selected” before they are “elected,” I think the Kennedy assassination provides a decent example of what happens to a president who steps too far out of line.

3. Kucinich has already called Obama’s actions impeachable, but the copypasta below likely explains this probability away by breaking down the legalese. (I would just post the link, but there’s an attached anti-Israel screed and I’m not interested in stirring that pot.)

In an effort to have the Invasion and Occupation of Libya, both ways, the US, Britain and France have rammed through another of their now-infamous pieces of Doublespeak that will justify whatever the hell they’re playing at in that almost forgotten nation that is ruled by a madman.

“Basically the resolution as currently drafted authorizes a war across the board against Libya. Airstrikes, a naval blockade, even a land invasion. The only exception in there is against “a foreign military occupation force.” But under the laws of war there is a distinction between a land invasion and an occupation force. For example when the United States invaded Haiti, in 1994, and put 24,000 troops in there; it still took the position under the Clinton Administration that we were not a foreign military occupation force.

So this was very carefully drafted to permit troops on the ground. Language here under paragraph four, “While excluding a foreign occupation force of any form, on any part of Libyan Territory,” But there is a difference between a foreign occupation force and a land attack. When troops are “ATTACKING” they are not OCCUPYING.” So I believe this was very carefully crafted to permit a land attack, if necessary. We know that British Special Forces haven’t been in Libya for quite some time. So my guess is they have prepared the way for a land attack, if and when that decision is made. Personally I think that this has been ‘under-way’ by the United States, Britain and France for quite some time, since the outbreak of the crisis there in Benghazi; they moved all their military assets into place. I don’t believe that there’s really anything that Libya can do to stop a major attack upon it by the United States and NATO. I think we’re past this point.

If you read the resolution it does not authorize “regime change.’

But Cameron, Clinton, Sarkozy have all said “Kaddafi has to go.” Before Obama can go to war against Libya he must have prior and express approval from the United States Congress (the same congress which gave away its powers in The Bush Doctrine in 2002) under both the War Powers clause of the United States Constitution and Congresses own War Powers Resolution of 1973 (that was made obsolete in 2002). It does not appear to me that he’s going to bother; despite the fact that Dennis Kucinich said something about it, Ron Paul has said something about it, and even yesterday Senator Lugar, the Senior Republican on the Senate Foreign Relations Committee, has also said something about it. (None of these three opinions will have any weight whatsoever, as congress no longer has the power to stop any war that the Commander-in-Chief approves of, thanks to the Bush Doctrine of 2002).

For Obama to launch an attack on Libya would be an impeachable-offense under the United States Constitution. (Except that the US Constitution is no longer what governs this country).

ETpro's avatar

@kevbo If Dennis Kucinich was serious about impeaching a president for constitutionasl violations, he missed his cue back when the Democrats regained control of the house in 2006. Had that been done then, you can bet that regardless of the outcome, Obama would have asked Congress for a declaration of war in Libya.

CaptainHarley's avatar

“Except that the US Constitution is no longer what governs this country.”

Say what? Then what DOES???

kevbo's avatar

@ETpro, is 2007 and 2008 close enough? Is it close enough given this?

mattbrowne's avatar

The German constitution does require this. But there are exceptions for example when there’s a clear and present danger like an ongoing attack on a NATO country. After 911 this wasn’t the case, therefore the Bundestag had to authorize German soldiers joining the forces in Afghanistan which it did. And still does.

There are pros and cons. Let’s take the Libyan situation. Sarkozy ordered fighter jets just in time to prevent a massacre in Benghasi.

So to answer your question: Yes, but allowing exceptions for a clear and present danger with ongoing attacks.

jerv's avatar

@CaptainHarley I’ve been asking myself that for decades. I think its a tossup between corporate lobbyists and schizophrenic voices in Uncle Sam’s head; either special interests with lots of money, or total insanity.

CaptainHarley's avatar


I vote for insanity.

Dutchess_III's avatar

At the end of the day, you guys, do you think Obama did the right thing by throwing in our lot with France and Britain?

jerv's avatar

Well, we’ve been doing it for so long that it would be diplomatic suicide not to, especially after all the times they’ve backed us up.

Dutchess_III's avatar

Without the history, is it the right thing to do, helping to stop that madman from killing his own people? Or should we just “stay out of it.”?

jerv's avatar

How many can even come close to us in military strength or technology? Of those few, how many are willing to bankrupt themselves by using that strength? Basically, if we don’t do something then nothing effective will be done. The sad truth is that we have basically forced our own hand by having such a large economy and devoting so much of it to being the world’s police force that right and wrong are almost irrelevant.

CaptainHarley's avatar


Great answer! Before you grab the tiger’s tail, you better have a damned good plan for letting go!

jerv's avatar

@CaptainHarley If Korea, Vietnam, and Iraq are any indication, I don’t think the US knows anything about exit strategies any more :/

WestRiverrat's avatar

@jerv Before Korea, most of our wars we fought to win, with the possible exception of the War of 1812. Since Korea most of our generals seem to think the object of war is not to lose.

According to SunTzu, that is a guarantee of disaster.

ETpro's avatar

@WestRiverrat Well said. In the case of Libya, I don’t think it is even a war per se. We certainly aren’t out to defeat Libya. The purpose was to prevent a genocide, and it appears that we have accomplished that at least for the time being.

glasseggplant's avatar

NO NO NO…..He has already done unconstitutional things…......he has no right to do things on his own….Not King Obama…....and for him to decide that he is transparent l think he should look that word up in the dictionary

glasseggplant's avatar

Sigh….............great come back !!!

jerv's avatar

@WestRiverrat I thought the object of war was to distract the voting populace from other things like the economy, government ineptitude and corruption, etcetera. Either that or to enhance shareholder value :/

ETpro's avatar

@glasseggplant Welcome to Fluther. But the rebuke that @Dutchess_III gave you made some sense. Your answer has nothing to do with the question, but simply rehearses your hatred of the president. The question is about an issue that has been part of the fabric of our nation since the Constitution was ratified. Counting actions of the level of our military force in Libya as war, the US has gone to war 205 times in its history. Congress only declared war 5 times. Of the other 200, the President went to war 173 times without even consulting and getting authorization from Congress first. The question is about our Constitution and how it affects all presidents, not about how much you happen to like Obama.

@jerv Ha! The Falklands Island War was sure a great example of that. Milton Friedman’s Chicago Boys had put General Galtieri inplace to institute their Randian vision of free market efficiency in Argentina where they had made an abject disaster of the economy and public outrage was building against the ruling military junta. Thatcher was their gal in the UK, sols on the Randian way, but there the reforms she wanted were so unpopular her party was facing a certain defeat in the coming elections.

Of course, wars are winner takes all. It helped Thatcher stay in power and jam through her reforms, which wrecked the UK’s economy as they had Argentina’s. It didn’t play so well for the looser, Galtieri.

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