Article I Section 8 of the Constitution explicitly gives Congress the power to declare War. Officially, this power has only been used by Congress for five conflicts. It has been nearly 70 years since the last time Congress has declared war. (June 5, 1942: War declared on Bulgaria, Hungary, and Romania). This period marks the longest duration in the history of the United States where war has not been declared.
However, this period has been anything but peaceful. Since War was last declared in the United States, military forces have engaged in numerous armed conflicts, durations of which range from a few months to more than a decade. The War in Afghanistan is currently in its twelfth year, making it longer than any War declared by Congress. With this conflict ongoing, the addition of military intervention in Libya in 2011, and calls by some congressional leaders for air strikes in Syria, the question must be asked – Is it still required for Congress to declare War anymore?
It would seem the simple answer is no, a declaration of War is no longer necessary, and the history of American involvement in armed conflicts since WWII shows this. However, the question of the constitutionality of these involvements is not that simple. While Congress is given the direct power to declare War, the President, under Article II Section 2 is given the power of Commander in Chief. Theoretically, this would require the President to ask Congress for a Declaration of War before he would be able to command troops into an armed war-like conflict. Practically, this has not been the case, and the President has been able to send troops into armed conflicts without a declaration of War. After the Korean and Vietnam wars, Congress grew concerned over prolonged armed conflicts without their approval, and a destruction of their power to declare War in Article I. The result was the War Powers Resolution in 1973, which passed over a Presidential veto.
The stated goal of the War Powers Resolution (WPR) is to “ensure that the collective judgment of both the Congress and the President will apply to” sending American troops into hostile environments. It sets out that the President is only authorized to sent troops into such hostilities if: Congress has declared War, passed a statute to specifically authorize the action, or through national emergency created by an attack on the United States or its armed forces. The law further requires that the President consult with Congress throughout the operation by requiring written notice to Congress within 48 hours of moving troops into hostilities, and provide periodic and semiannual reports on the conflict submitted to Congress. The WPR also requires that such military operations are not indefinite by placing a sixty-day cap, after which further Congressional approval is required or the troops must be removed.
In actuality, the constraints under the WPR do little to draw back Presidential power or to increase consultation with the legislative body before or during a conflict. First, in looking at the current administration, President Obama has faced criticism for the US involvement in Libya through Operation Odyssey Dawn. First, he faced a bipartisan backlash from members of both houses for failing to gain Congressional approval. The administration responded by saying that because it was limited in scope, duration, and task, it fell under Presidential powers and the President himself could authorize the action. Second, President Obama faced criticism for keeping US troops past the sixty-day limit imposed by the WPR. The administration responded by claiming that it did not need to abide by the sixty-day limit because command was ceded to the United Nations.
Other administrations also faced backlash for not abiding by the requirements of the WPR. The George W. Bush administration perhaps took the most brazen view of the War Powers in American history, arguing that no “statute can place any limits on the President’s determinations,” and under the Constitution, these types of decisions are left to the President alone to make.
Asides from political backlash, administrations have faced lawsuits from Congressmen and soldiers challenging the constitutionality of its military action under both the Constitution and the WPR. However, in these cases, courts have cited a lack of standing, ripeness, or a political question to directly avoid having to answer these questions. See Kucinch v. Obama, No. 11–1096 (RBW), 2011 WL 5005303 (D.D.C.) (dismissing a suit against the Obama administration by Congressmen over US involvement in Libya for lack of standing); Doe v. Bush, 323 F.3d 133 (1st Cir. 2003) (dismissing a Constitutional challenge of the Invasion of Iraq based on ripeness because the challenge was brought prior to US troops being sent into Iraq); Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000) (dismissing a suit against the Clinton administration by a member of Congress over US involvement in Yugoslavia for lack of standing); and Sanchez-Espinoza v. Reagan, 568 F. Supp 596 (D.D.C. 1983) (finding a suit against the Reagan for its actions in Nicaragua was a political question).
Courts are often too hesitant to decide cases involving a conflict between the two political branches. See Goldwater v Carter, 444 U.S. 996 (1979). Without intervention by the third branch, the question of “does Congress or the President have the power to initiate War?” will not be solved. Until that happens, the President will generally be free to commit American troops into hostilities without the advanced express approval of Congress. With a refusal to decide prior cases on this issue and no pending cases before the Court, this question is not likely to be answered in the foreseeable future.