H. Declarations of War
Congress shall have the sole power to declare war, which they may only do upon the request of the President. No use of sustained military action beyond lawful emergency defense shall be undertaken without such a Declaration. A Declaration of War shall require a simple majority vote in each chamber of Congress.
War is the most serious decision a nation can make. How do we engage in it? When? Who decides? These seem like obvious questions with obvious answers. But what about Korea and Vietnam? Those two conflicts were certainly wars. Except that they weren’t, because they were never declared. What about the War on Terror? Was it a war or not? Did Congress declare it one or not? Has it ended?
Neither Korea nor Vietnam was formally declared a war. Still, the soldiers who fought and died in them didn’t feel any ambiguity. I doubt the civilians who died, as civilians always do, in those two conflicts were much in the mood to parse whether there was war in their homelands as bombs fell on them.
More fundamentally, to the scope of our discussion, though, our country certainly acted as though it were at war. We conscripted soldiers, deployed them, spent money on materiel, and engaged in armed conflict. My purpose isn’t to argue whether we should have engaged in those wars, or even if they were legal. Plenty of others have had that debate, and I’m not interested in covering that ground. The point isn’t to relitigate those conflicts. It is to show how ambiguous law allowed the President to take us to war without an explicit declaration. That ambiguity ends here.
This subsection explains that only Congress can declare war. It clearly states that Congress can only do that if the President requests a declaration. And most importantly, it specifies that, outside of emergency defense, which I hope I don’t need to defend the importance of, no sustained military action can happen without a declaration of war. None.
If you read that carefully, you found a catch. I said “sustained.” There is a narrow carve-out in Article III for “immediate and covert action in the interest of National Security,” which is subject to approval in advance by a Use of Force Advisory Council.[1] Outside of that and defensive action when attacked, the use of military force requires a declaration of war.
Although this is the kind of grave subject I’d usually prefer a supermajority to approve, the need to take military action is typically urgent. That makes it a terrible time for political gamesmanship. For that reason, and that reason alone, the threshold for declaring war is a simple majority in both houses. War should never hinge on partisan brinksmanship. When the nation must act, a majority is enough.
No declaration is required against an aggressor if the United States is attacked by military force or other intentional attack on critical or strategic infrastructure, such as, but not limited to, utilities, hospitals, ports, military facilities, or refineries. Acts like these constitute a declaration by the aggressor, creating a state of war between them and the United States.
My argumentation above is all well and good. But what happens when war comes to us? Let the enemies of the United States be warned. Technicalities will not constrain us if we are attacked. An attack on our military or infrastructure constitutes a declaration of war against us, requiring no declaration in return.
[1] See Article III, Section 2.A.1.
Last updated
Was this helpful?