Why Declare War?

Most agree that war is good for “uh! absolutely nothin’.” Unfortunately, it remains a part of life and, for too many people, death. Limiting war’s devastating effects on citizens constitutes one of the few legitimate functions of governments, but too many have been distracted by other missions, many of dubious import or tractability, to provide peace.

The best governments make peace a paramount priority through deterrence and diplomacy. Look at George Washington’s Farewell Address for a clear statement of such principles. America’s Framers knew, though, that in some circumstances war becomes the least bad option, though when that line is crossed could be a matter of dispute. 

So the Framers made POTUS Commander-in-Chief but checked his (or soon her) power by putting Congress in charge of military appropriations (Article I, Section 8, Clause 1). The Framers also gave Congress, in Article I, Section 8, Clause 11 of the Constitution, the sole authority to declare war. That clause says that Congress shall have power to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” 

Comparing the power of POTUS to that of the British monarch in Federalist No. 69, Alexander Hamilton wrote:

The President is to be Commander in Chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the King of Great-Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the confederacy; while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all which by the Constitution under consideration would appertain to the Legislature.

The idea was that POTUS could respond to emergencies quickly, out of current budget appropriations, but not engage in long-term, large-scale hostilities without Congressional approval. What constituted a long-term or large-scale conflict was contentious, for example in the military campaigns against North African city states and American Indian nations. 

What the Framers did not expect was for Congress to abrogate its responsibility to formally declare war, or in other words to fund a nontrivial de facto war (actual state of war) indefinitely without making it de jure. Yet, despite fighting many armed conflicts over the last 8 decades, the United States Congress has not formally declared war since 1942, against three Nazi satellite nations in the Balkans. 

When American military forces become embroiled in combat for years, as in Iraq and Afghanistan, or in operations, like Korea and Vietnam, that threaten to escalate into major power conflict, Congress should debate the matter and then vote on a formal declaration of war, not leave it up to POTUS. Declarations of peace, so to speak, are usually done by treaty and hence the work of the executive branch but ratified by two-thirds of the Senate per Article II, Section 2, Clause 2. Declarations of neutrality, by contrast, have been safely left to POTUS, as in 1793 and 1914.

So the situation is complex, and deliberately so. Congress and POTUS are different parts of government, elected in different ways, for different reasons, and for different terms of office, so they have different incentives. When those incentives align, most likely America should go to war. When they don’t, the nation can get sucked into, and then mired, in conflicts on dubious grounds.

While POTUS (and VPOTUS, sort of) is the only nationally elected officeholder, the term is four long years and is now term-limited (though not as strictly as I would like). It’s a truism that the surest way of winning a second term is to engage the country in de facto war, so checking the president’s war-making powers is essential lest the nation repeat the fiascos of 1964 (Vietnam) and 2004 (Iraq and Afghanistan occupations).

The entire House of Representatives comes up for reelection every two years, but Representatives can remain in office for as long as they can win reelection. So they tend to be much more attentive to public sentiment than POTUS and the two-thirds of Senators not up for reelection in any given cycle. Although each Representative represents only 1/435th of all Americans on average, collectively they represent current public opinion much better than POTUS does. 

Both Houses of Congress, 535 voting members in all, also represent a type of collective wisdom that one person, especially one person surrounded by a bunch of sycophantic advisors can never achieve. While crowds can be wrong, like during the height of financial bubbles, they tend to approximate right answers on average. Individuals, by contrast, can be way off on everything, a lesson Americans are relearning in real time.

Declarations of war are also important because they are much more salient and somber than making a series of “supplemental” and “emergency” budget appropriations designed to hide the total cost of conflict from taxpayers, and to shield legislators from the wrath of voters opposed to drawn-out occupations and the suppression of masses of people yearning to be free.

Most importantly, though, a formal declaration of war comports with international law and treaties. Nations that formally declare war as a matter of course are much less likely to make sneak attacks, striking first on slight or no provocation. Like Russia.

Nations with such a strong rule of law that they insist on formally declaring war essentially follow the non-aggression principle. They can be trusted in matters of diplomacy and, perhaps more importantly, they can be trusted with direct foreign investment and portfolio investment. That is because they will not take anyone’s stuff without due process of law.

America was once such a nation. After formally declaring war, Congress can unleash privateers, legal pirates who roam the seas searching for foreign combatant booty to sell for a profit. Congress can also order the seizure and sale of other property owned by foreign combatants. It has actually done so, most famously during the two world wars when its “Alien Property Custodian” (APC) seized the assets of Germans, and other foreign combatants, held them in trust, and sometimes sold them, lawfully under the Trading with the Enemy Act of 1917 (TWEA).

Details of the APC’s activities are lacking, though Records of the Alien Property Custodian are stored in the National Archives and its actions were summarized in various published reports and law journal articles. Historical treatments of the APC remain few, though, as most historians are too busy fretting about culture and race to study institutions, even important neglected ones like the APC, in any detail.

The APC’s powers continue to exist, though tellingly transferred from the Department of Justice to the Treasury Department’s little-known Office of Foreign Assets Control. This is the crew that handles the technical details of embargoes and other economic sanctions today. 

As usual, Congress has delegated power, perhaps too much power, to POTUS. The 1977 International Emergency Economic Powers Act (IEEPA) allows POTUS to declare a domestic emergency when events wholly or largely occurring outside of the United States threaten the nation’s military or economic security. President George W. Bush invoked it in 2001 after the 9/11 attacks in Executive Order 13224 to tamp down on terrorist financial networks, including the Holy Land Foundation for Relief and Development

While EO 13224 may have shown that it is important to delegate authority to the executive when time is of the essence, the cost of TWEA and IEEPA was further empowering POTUS. President Trump’s 2019 use of IEEPA to address a purported immigration emergency on the Mexican border, for example, brought howls from many. (And we recently saw in Canada how emergency powers can be used to punish political opponents.)

Obviously, allowing a leader to unilaterally declare an emergency that empowers him or her provides the wrong incentives, especially when only a joint resolution of Congress can override POTUS’s state of emergency declaration. Good luck with that if the President’s party controls Congress. The devil in these details is that voters tend to blame individual politicians for their actions rather than their inactions. So legislators have an incentive to “let POTUS do what POTUS gonna do” even if his actions may blunder the nation into a de facto war that can be financed on the sly. 

In short, due to overzealous delegation and the erosion of an important Constitutional check, people can die, the nation’s international reputation can be sullied, and fortunes can be lost, or made, without the real democratic accountability afforded by formally declaring war.

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