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Wars, Declared and Undeclared:

I keep hearing arguments (most recently in the treason thread) that various war-time powers — for instance, the power to punish people for treasonously aiding our enemies — are applicable only if the war is declared.

No no no. Did I say, "no"? Just in case, "no." That is not and has not been U.S. law. I canvassed the caselaw on this here, but the short answer is that U.S. law has not treated our undeclared wars (e.g., the Civil War, the Korean War, the Vietnam War) differently from declared wars (e.g., World War I or World War II).

I realize that some people might argue that the law should distinguish declared wars from undeclared wars. But they should acknowledge that this is a change from longstanding American legal understanding, and they should also discuss how this would apply in situations where wars have generally not been declared (e.g., civil wars, wars in which we're attacked and conduct takes place before we have time to declare war, and so on).

But beyond this, the war against Iraq is a declared war. A declaration of war doesn't require magic words: A Congressional authorization to the President to use military force suffices. I blogged more about this here; but note in particular that Joe Biden, the drafter of the authorization of the use of force following Sept. 11, specifically said that he viewed it as a declaration of war. And the Iraq war is authorized by a very similar authorization of the use of force.

So the war has been declared; and even if it hadn't been declared, it would have still been a war for legal purposes.

Tom Holsinger (mail):
Rebellions aren't declared wars, but rebels can be tried as traitors. The complainers have trouble reading the Big Print in the Constitution.
8.18.2005 8:05pm
Steve:
I've seen several cases that treat it as a nonjusticiable political question - in other words, since the other branches are acting as though there's a war, the courts aren't going to get involved in ordering the troops home and so forth.

An interesting version of this argument came up in Hamdi v. Rumsfeld, where the Court seemed troubled by the idea there could be an indefinite "war on terror" where the President would effectively have war powers until he decided to call the war off. The Court ducked the question, reasoning that right now it's clear we're involved in active hostilities regardless, but after we're done in Iraq and Afghanistan the question is likely to come up again.
8.18.2005 8:46pm
Tom Holsinger (mail):
Steve,

A similar issue arose during the Constitutional Convention. A twit proposed that the size of the regular army be limited to 5000 men. George Washington's only known intervention occurred at that point when he proposed an amendment to this prohibiting an enemy from invading "with a greater force".

The enemy has a vote. And they decide when the war ends.
8.18.2005 8:55pm
Steve:
That's a funny anecdote. However, the "war on terror," as such, is not a war against a defined foe, and will not end with the signing of a conventional peace treaty. One could argue, as long as there are groups in the world who believe in terrorist tactics to get their way, the war on terror is still ongoing; but it's unclear whether the Supreme Court would step in at any point and say the continued exercise of war powers doesn't make any sense in the absence of overt military action.
8.18.2005 9:27pm
Duncan Frissell (mail):
In addition to the Iraq War Resolution, the President received sufficient authorization from the resolution Congress passed just after 9/11 which gave him broad powers to prosecute the conflict. Also, Gulf War I -- authorized by the Politburo, NATO, France, the Security Council, Canada, Syria, and the US Congress (including Al Gore but not including John Kerry) -- was stopped by a cease fire agreement rather than a treaty and Iraq's frequent ceasefire violations permitted the US to resume hostilities at any time.

The Cold War lasted just over 40 years. The German War (WWI &WWII) lasted just over 30 with a 20-year cease fire in the middle. The current war is probably good for 40 years or so (up and down). Once a generation and a half passes the conflict is likely to end because of changes in the conditions which started it. A 40-year war is long but not perpetual.
8.18.2005 10:24pm
Bob Bell (mail):
The Uniform Code of Military Justice (UCMJ) has, as one of its first articles, its applicability, which included "civilians accompanying the armed forces in the field" (or words to that effect). But a footnote to the article in the Manual for Courts Martial said the Supreme Court had ruled that jurisdiction unconstitutional except in times of declared war. The current guidance being provided to DoD civilians serving in Iraq says they are not subject to the UCMJ because Congress "has not declared war." Sounds like the DoD lawyers interpret the situation differently than you do. Anyone familiar with the cases, by chance?
8.18.2005 10:42pm
bill-10k (mail) (www):
while the original 9/11 resolution would cover the Iraq war, it is ironic that it was the Democrats who demanded the debate and the specific Iraq resolution to authorize the Iraq war.

A careful reading of both resolutions tells a lot of the reasons for the Iraq war and why the Democrats don't want to admit they can read.
8.18.2005 10:43pm
Adam (mail) (www):
I hate to be a stickler, but the Iraq Use of Force resolution only authorized the use of force as follows:
(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to

(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.

Isn't all that stuff kinda over at this point? (Nonjusticiable, sure, but still.)
8.18.2005 11:12pm
Larry (mail):
You gotta love it. This is a disputed issue -- with scholars (some with impressive credentials more impressive than Volkh) taking both sides -- and the original post states that there is no dispute. Predictably, the people looking for political reassurance on this (e.g. the non-lawyers and the lawyers who want the executive to rule with an iron fist) jump on the bandwagon. I guess you gotta do what you gotta do when you campaigning for a judgeship. I would do the same thing too, but I would get even MORE partisan hacks saying I was a genius.
8.18.2005 11:14pm
BrewerBoy (mail):
What about flying the Confederate flag? Supporting a nation created expressly to oppose our own seems to me the epitome of treason. But does one dare prosecute for that?
8.18.2005 11:38pm
CharleyCarp (mail):
Are you saying, Prof. V., that the grant to Congress of the power to declare war is a nullity? That the Executive may use force, whether to 'suppress insurrections and repel invasions' or for some other purpose, without specific congressional authorization?
8.19.2005 1:18am
=0=:
Duncan writes first that even without a declaration of war, we were merely in a state of ceace-fire with Iraq. True. He then goes on to say,

The German War (WWI &WWII) lasted just over 30 with a 20-year cease fire in the middle.

False. While it is true that I and II had causal connections, if we're going to parse the law with respect to some conflicts, we should do so consistently with respect to others, at least from paragraph to paragraph.

Also, unless we wish to rename the WWs to "the War on Germans (and various other people, as needed)", considering it equivilent to the "War on Terror" is facile; even the cold war had an identified main actor, although it was a more subtle conflict. Otherwise, we may as well simply call what we're engaged in the "War on Bad Things", wait for Duncan's timer to run out, and not limit ourselves in the meantime. Sure, it doesn't have quite the rhetorical punch, but it is a lot more flexible.
8.19.2005 2:00am
Kazinski:
No CharleyCarp that is not what the Prof is saying. What he is saying is that when Congress authorizes force then they are in fact declaring war. Whether or not they use those magic words.
8.19.2005 2:36am
Medis:
Bob,

Unfortunately, I suspect that it would be awfully convenient for some civilians in Iraq to be outside the UCMJ.

In general, this is my concern: when Congress does not formally declare war (and by formally, I mean by unmistakeable words), it allows the government to argue that it is fighting a war when, but only when, doing so is convenient.
8.19.2005 6:02am
CDB:
The essential question of when the "war" has run its course and has terminated, thus ending the expansion of executive powers. Prof. Volokh may argue in his post that the "magic words" (Kazinski) need not be present in legislation such as the resolution passed to authorize force against/in Iraq in order for the executive to draw upon "war powers." As evidenced in Prof. Volokh's post, the conflict naturally arises over the expiration date of the "war." For instance, Prof. Volokh states: "the war against Iraq is a declared war." Today, however, it would difficult to argue that we are at "war against Iraq" considering we are present in Iraq to support or otherwise the sovereign power in Iraq The essential question of when the "war" has run its course and has terminated, thus ending the expansion of executive powers. Prof. Volokh may argue in his post that the "magic words" (Kazinski) need not be present in legislation such as the resolution passed to authorize force against/in Iraq in order for the executive to draw upon "war powers." As evidenced in Prof. Volokh's post, the conflict naturally arises over the expiration date of the "war." For instance, Prof. Volokh states: "the war against Iraq is a declared war." Today, however, it would difficult to argue that we are at "war against Iraq" considering we are present in Iraq to support or otherwise the sovereign power in Iraq. The essential question of when the "war" has run its course and has terminated, thus ending the expansion of executive powers. Prof. Volokh may argue in his post that the "magic words" (Kazinski) need not be present in legislation such as the resolution passed to authorize force against/in Iraq in order for the executive to draw upon "war powers." As evidenced in Prof. Volokh's post, the conflict naturally arises over the expiration date of the "war." For instance, Prof. Volokh states: "the war against Iraq is a declared war." Today, however, it would difficult to argue that we are at "war against Iraq" considering we are present in Iraq to support or otherwise defend the sovereign power in Iraq. Without convoluting the subject by using a U.N word, our forces are more akin to "peace-keeping" rather than "at war."
8.19.2005 8:25am
PersonFromPorlock:
Let me propose a quibble: although Congress may put us in a state which is indistinguishable from war, neither the Courts, nor the Executive, nor Professor Volokh have the Constitutional authority to declare that state to be 'war'.

In other words, any action by the Courts which holds, in passing, that a state of war exists exceeds the Judiciary's authority unless Congress has specifically declared war. And likewise for the Executive branch.
8.19.2005 9:00am
TC (mail):
Some parts of the Uniform Code of Military Justice's implementing executive order (usually relating to increased punishments for certain offenses) are only applicable during a Congressionally "declared war" or after a factual finding by the President that "time of war" exists. The President has not made that finding for Iraq/GWOT.

Article 2a(10) of the UCMJ says: "In time of war, persons with or accompanying an armed force in the field" are subject to the UCMJ.
8.19.2005 9:41am
Bill Harshaw (mail) (www):
I can't debate the legalities, but it makes a difference politically whether the President asks for a declaration of war and Congress approves it versus some other action. A declaration of war against Saddam Hussein would have been more difficult to get; if and when gotten the unity it signified would have enabled prosecutions and persecutions not feasible in the atmosphere of March 2003, much less March 2005. Near unanimity in Congress in 1917 and 1941 was a prerequisite to many actions we now regret; near unanimity in Congress in 2003 might not have changed the legal definition of treasonable speech, but would have changed the practical definition.
8.19.2005 10:32am
jallgor (mail):
CharlieCarp: The answer to your question "the Executive may use force, whether to 'suppress insurrections and repel invasions' or for some other purpose, without specific congressional authorization?" is undoubtedly Yes? I don't need to list here all the times the executive has used force without specific congressional authorization. It's a long history that includes Washington's use of force to put down the Whiskey Rebellion, and Jefferson's undeclared war against the Barbary Pirates. The War Powers Act tries to define and curtail this historically accepted practice but (and I am working from memory here so forigive me) it explicitly acknowledges that the Executive can commit troops without asking Congress. If he does so for more than 60 days then he is supposed to come back to Congress to ask for permission. I am over-simplifying what is a very ambiguous law but I think the gist of it answers your question. Does this make Congress' power to declare war a nullity? Maybe, but probably not. In the end, Congress' control of the purse strings is probably the far more potent power and inherently contains the power to stop the executive from waging war without their consent.
8.19.2005 10:34am
Steve:
Larry: Do you have any cites for academics who take the other side of this issue? I'm sure there are plenty of principled arguments, but I can't remember seeing any post-WWII decision where the Supreme Court dealt with an undeclared war different from a declared war. Now for the guy who thinks the Cold War was a literal 40-year "war," I can't say much.
8.19.2005 11:49am
Jam (mail):
Why doesn't the uS Congress go ahead and explicitly issue a declaration of war? What are they afraid of, setting a precedent of actually following the uS Constitution?

Where in the uS Constitution is the uS Congress granted the authority to delegate the war declaration?

What about ending a declared war? The uS Senate is given the authority apporve treaties. Is a treay required to end hostilities with a hostile government?

http://www.libertypost.org/cgi-bin/readart.cgi?ArtNum=103539

One Republican member stated that the constitutional requirement that Congress declare war is an anachronism and should no longer be followed, while a Democratic member said that a declaration of war would be "frivolous."
8.19.2005 12:29pm
jallgor (mail):
Actually, I was wondering about Larry's post too. Is the dispute issue he notes this "that U.S. law has not treated our undeclared wars (e.g., the Civil War, the Korean War, the Vietnam War) differently from declared wars (e.g., World War I or World War II)."
Or is the disputed issue he references that, "But beyond this, the war against Iraq is a declared war. A declaration of war doesn't require magic words: A Congressional authorization to the President to use military force suffices."

As for Volokh's credentials they are pretty tough to beat. I hope he forgives me for tooting his horn and for the inaccuracies but here goes: Parents flee the Ukraine and arrive here when Eugene is like 10; Graduated college at 17 or 18; millionaire by 20 from writing code; graduated UCLA law school with highest GPA in history of the school; 9th Circuit and Supreme Court clerk; tenured prof at the age of like 28 or something; extremely prolific publisher; highly respected, if somewhat controversial, academic; nice guy. I am probably off on some of the details here but you get the point.
8.19.2005 12:33pm
JoeSlater (mail):
I for one didn't say that treason rules only applied when there was a formal declaration of war. But I did ask what, precisely, allows us to say a certain country is an "enemy" such that treason rules could apply to speech supporting that country. Would giving money to the Sandinistas, or publicly praising them and explicitly stating my wish for their victory over the contras have been treason, assuming say I had been paid to do so? (Hypos only, in my case, for the record)
8.19.2005 12:41pm
Jam (mail):
jallgor:

'suppress insurrections and repel invasions' is an Article 1 authority, ie it is the uS Congress' power and not the POTUS.

"I don't need to list here all the times the executive has used force without specific congressional authorization." Yes, many, many examples on how the uS Constitution has been proven to be just a piece of paper, to be disregarded at will and when convenient, by the Congress, POTUS and SCOTUS. Starting with Washington.
8.19.2005 12:48pm
A.S.:
Jailgor: The President's power with respect to war is rooted in his power as Commander in Chief of the Armed Forces. As Commander in Chief, he can order the armed forces to go places, start shooting, etc. Or are you saying that the Commander in Chief power is only applicable when there is a "declared" war?
8.19.2005 1:06pm
jallgor (mail):
AS: No I am not saying his power as commander in chief is only applicable when there is a declared war. that seems to be what Jam is saying. I was saying just the opposite.
Jam: The power you mentioned actually allows Congress "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" The Militia and the Army are distinct concepts in the Consitution. For instance, "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 the actual Service of the United States." Note the distinction between the Militia and the Army. The power you mention that is reserved to Congress is the power to use the States' militias to put down a rebellion or repel an invasion. Using the army to do it seems to be a foregone conlcusion. In the end, the line between the President's power as CiC and Congress' power to declare war is not set out clearly in the Constituion and, therefore, legal scholars have usually considered historical precedent. Whole books have been written analyzing the issue. I find it amusing that you can sit here 200+ years later and tell us about Washington's (and by extension Hamilton's) and Jefferson's faulty interpretations of the Consitution.
8.19.2005 1:32pm
PersonFromPorlock:
Another whimsical point: if we're at war, it's with 'terrorism'; a what and not a who. But when Muslim reactionaries in Iraq attack US forces, they are waging irregular warfare, not terrorism, and are therefore not 'the enemy' and can be aided and comforted with impunity. :^)
8.19.2005 1:44pm
A.S.:
Jallgor: oops, my apologies. I meant to direct my response to Jam.
8.19.2005 1:51pm
Difficulty (mail):
As Professor Volokh hinted, this issue of legal interpretation (what does "declared war" mean?) been completely obscured by the historical reality that American Presidents have ordered some 200+ foreign military adventures without corresponding Congressional declarations of war. Everyone should admit that this historical "gloss" is meaningful -- we can't unring a bell now rung so often.

But what is the effect that this reality has on textualists? (who are quite often in favor of expanding/maintaining presidential authority, for what ever reason) Clearly the War Clause must mean something to textualists, but so many of them appear willing to allow that text to be rendered "a nullity" - as a previous poster put it. What would Justice Thomas do?
8.19.2005 1:56pm
Jam (mail):
It it aint expressely delegated to the Central government the Central government does not have the authority. Yes, I can read the uS Constitution, look at their actions and come up with conclusions.

And, if memory serves me right, the FF were very explicit in not wanting the POTUS to have the war making power of the Royals.

War making power is at the hands of the people's House. And the uS Congress has no authority to delegate that power. Not even to the POTUS.
8.19.2005 1:58pm
jallgor (mail):
"if memory serves me right, the FF were very explicit in not wanting the POTUS to have the war making power of the Royals."
That depends on which FF you are talking about. Hamilton and Washington certainly thought the executive should have some flexibility in the use of armed force. Madison arguably wanted less flexibility. Jefferson seemed to be vehemently against the Executive unilateral use of the army (I don't think he wanted any standing army at all) until he became president, then he used force pretty liberally.
8.19.2005 2:13pm
Jam (mail):
Which was the reason I made my comment about the uS Constitution being ignored since the 1st Congress, when convenient. I really like Jefferson but he was definitely inconsistent when he became POTUS.

Could you imagine being a congressman raising the impeachment issue against Washington?
8.19.2005 2:23pm
Robert Schwartz (mail):
For those few of you who are interested in fine points of constitutional interpretation and who like the pterodactyl believe that historical context is relevant to constitutional interpretation,
I offer the following as proof that the authors of the United States Constitution did not believe the formality to be important:

FEDERALIST No. 25

The Same Subject Continued
(The Powers Necessary to the Common Defense Further Considered)
From the New York Packet.
Friday, December 21, 1787.

HAMILTON

". . . the ceremony of a formal denunciation of war has of late fallen into disuse . . ."
8.19.2005 2:51pm
Penta:
You wouldn't.

Similarly, I don't think any of the Framers that became President would (or really could) have been impeached.

Those Presidencies were where we figured out conventions and customs; One of the constitutional conventions so developed is that the President has nearly unlimited jurisdiction over the military.

Now, what I wish we would resurrect:

Advice and consent (for treaties, not for nominations, for reasons which shall shortly become obvious) meaning that the President troops up to Capitol Hill and sits, as Washington did once, in the Senate, actually getting advice and hearing the arguments of the Senate. Probably best done in a closed session, as all treaty debates were til 1929. Lets everybody be honest, without fear of offending the countries whom the treaty is with.
8.19.2005 3:06pm
Paul Gowder (mail):
No, no, no! yourself. The entirely tepid assertion that an undeclared war like Vietnam is the same as a declared war for all meaningful purposes -- which I don't necessarily dispute -- utterly avoids the ultimate question, which is this: "Does it then follow that the war powers consume the rest of the Constitution?" Or, more carefully, "Does the mere fact that a state of 'war' exists any time the personal whim of the president decrees such permit the conclusion that the President has full powers to, e.g., suspend habeas corpus, impute treason to people, etc. at a similar personal whim?"

I would suggest that unless we make a distinction -- not necessarily based on Congressional declaration or any such formality -- between "war" and "use of troops for non-war purposes," you'd be forced into the conclusion that any time the president feels like using troops anywhere he can take advantage of the special privileges that the federal government gets when conducting war.

Also, do any of your cases cover the case where the U.S. has conquered a foreign land and turned over sovereignty to a friendly government there? No.
8.19.2005 4:00pm
Dave in NYC:
Regarding the post by CDB:
The essential question of when the "war" has run its course and has terminated, thus ending the expansion of executive powers. Prof. Volokh may argue in his post that the "magic words" (Kazinski) need not be present in legislation such as the resolution passed to authorize force against/in Iraq in order for the executive to draw upon "war powers." As evidenced in Prof. Volokh's post, the conflict naturally arises over the expiration date of the "war." For instance, Prof. Volokh states: "the war against Iraq is a declared war." Today, however, it would difficult to argue that we are at "war against Iraq" considering we are present in Iraq to support or otherwise defend the sovereign power in Iraq.
and others who have noted the matter of when the war (any war) "ends," I can't give a definitive answer, but I can give one insight:

Congress declared war on Germany on December 11, 1941. Germany surrendered on May 7, 1945. Congress did not terminate the state of war, however, until October 19, 1951: Joint Resolution To Terminate the State of War Between the Unites States and the Government of Germany. As a formal matter, I don't think there has yet been a peace treaty between Germany and the Allies, but the Two-Plus-Four Treaty of 1990 is usually treated as such.

The state of war with Japan ended pursuant to the San Francisco Peace Treaty of September 8, 1951, six years after Japan's unconditional surrender. And Japan never signed a peace treaty with the USSR and still lacks one with the Russian Federation.
8.19.2005 4:48pm
Dave in NYC:
The practical effect, among other things, is that measures permitted under military law and war powers continued after hostilities concluded.

Madsen v. Kinsella, 343 U.S. 341 (1952), has been cited alot recently in discussions over the jurisdiction of military tribunals, but for purposes of this discussion I think it is most relevant to note that Ms. Madsen was tried for murder by the United States Court of the Allied High Commission for Germany in 1950, i.e., five years after the cessation of hostilities (but before the state of war was officially terminated).

Several cases cited in footnote 12 to Madsen stand for the proposition that in certain circumstances war powers may continue even after a formal peace treaty. For instance, both Santiago v. Nogueras, 214 U.S. 260 (1909) and Neely v. Henkel, 180 U.S. 109 (1901), upheld convictions by military tribunals of individuals tried in Puerto Rico and Cuba, respectively, after the Treaty of Peace with Spain which gave the U.S. formal control over those territories. In those situations, and in other cases, the military commissions authority did not end until civil authority was reestablished.
8.19.2005 5:54pm
Hans Bader (mail):
The late U.S. District Judge Larry Lydick, my former boss, once confronted the argument that the Korean War wasn't really a war, but rather a police action (as President Truman had termed it), since Congress had not declared war.

The issue arose in the context of an insurance case he litigated in private practice.

Lydick argued that the Korean War was in fact a war, regardless of whether or not Congress had declared war, and the court agreed.

As the case illustrates, labels aren't controlling as to whether war exists.

And deliberately sabotaging the war effort by fomenting violence against your country's troops (e.g., American or British troops in Iraq) is treason whether or not war has been declared.
8.19.2005 6:18pm
Clint:
Jam- What's with writing "US" as "uS"? Is this some sort of states' rights gesture?
8.19.2005 7:42pm
random (mail):
For what it is worth, the security operations in Iraq is not a war.
8.20.2005 5:46am
Perseus (mail):
1) The records suggest that Jallgor is correct about the power of the president as commander-in-chief of the armed forces to suppress rebellions/repel invasions without Congressional authorization. In the debates of the Constitutional Convention, the wording (in a motion by Madison and Gerry on Aug. 17) was deliberately changed from the power of Congress to "make" war to "declare" war precisely because they wanted to leave "the Executive the power to repel sudden attacks."

2) Declared v. Undeclared Wars: Formal declarations of war had fallen out of use among European states for over a century by the time of the writing of the Constitution (hence Hamilton's statement from Fed. 25 quoted above). Anyone--like the Framers--familiar with Grotius, Pufendorf, Vattel, and especially Burlamaqui would also know that these writers dealt with "imperfect" or undeclared wars at some length because they were so common. Finally, the now neglected power of Congress to grant "letters of marque and reprisal" was granted separately for use in undeclared wars.

3) "What would Justice Thomas do?" I would hope that he would quote liberally from Hamilton's "Pacificus" essays.
8.20.2005 8:25am
Jam (mail):
Yes, it is a States Rights gesture. It was also the way Thomas Jefferson worte. The States are the pricipals and the Central government their agent. We are these united States and not the united States.
8.20.2005 10:04am
ReaderY:
Congress' power over letters of marque and reprisal would appear to reflect an intention to give Congress responsibility over military measures less than war, including 'gray' military like privateers -- the 18th century equivalent of paramilitaries and guerillas.

Laws like the Alien Enemy Act suggest that it may be useful to have some measure of formality in declaring law. The Act, upheld as constitutional by the Supreme Court during World War II, permits the President to deport or imprison, by executive order, all enemy citizens found within the country for the duration of hostilities without judicial intervention (other than to determine the prisoner's citizenship status and the existence of a war). Such powers suggest that it might be useful for Congress to indicate when it is simply endorsing a low-scale military action, and when it wishes to invoke the full internal powers inherent in fullscale war.
8.20.2005 10:39am
ReaderY:
Congress' power over letters of marque and reprisal would appear to reflect an intention to give Congress responsibility over military measures less than war, including 'gray' military like privateers -- the 18th century equivalent of paramilitaries and guerillas.

Laws like the Alien Enemy Act suggest that it may be useful to have some measure of formality in declaring law. The Act, upheld as constitutional by the Supreme Court during World War II, permits the President to deport or imprison, by executive order, all enemy citizens found within the country for the duration of hostilities without judicial intervention (other than to determine the prisoner's citizenship status and the existence of a war). Such powers suggest that it might be useful for Congress to indicate when it is simply endorsing a low-scale military action, and when it wishes to invoke the full internal powers inherent in fullscale war.
8.20.2005 10:39am
Sandy007:
Reply to Larry:

You gotta love it. This is a disputed issue -- with scholars (some with impressive credentials more impressive than Volkh) taking both sides -- and the original post states that there is no dispute.

You're either posting on the wrong thread or you completely misunderstood Eugene's post. Nowhere does he state that there is no dispute. In fact he states just the opposite in the very first sentence. Perhaps you missed it: "I keep hearing arguments...that various war-time powers...are applicable only if the war is declared."

I keep hearing arguments does *not* mean There is no dispute. Not even close.

8.20.2005 4:59pm
Perseus (mail):
Military matters less than war were known as general reprisals, which were regarded as imperfect war (e.g., the Quasi-War with France). I'd add that a formal declaration of war as used by Grotius, et al. meant a formal announcement to the enemy with proper pomp and circumstance in its capital (hence Hamilton's use of the word "ceremony" in Fed. 25).

The term "declare war" in the Constitution seems to have been understood as a modification of the Continental Congress' power of "determining on peace and war," the difference being that "declare" was a narrower concept than "determining" because the Articles of Confederation had no separate executive vested with the power to conduct war and to "repel sudden attacks." "Declare" war basically meant "commence" war, and Congress would have the authority to commence war, whether formally or not, as it saw fit.

Here is a brief excerpt from Bas v. Tingy (1800), which Prof. Volokh mentions in his earlier piece. The Court (writing in the context of the Quasi-War with France) emphasized that it didn't matter whether Congress formally declared war: "It may, I believe, be safely laid down, that every contention by force between two nations, in external matters, under the authority of their respective governments, is not only war, but public war...it has been observed, that in no law prior to March 1799, is France styled our enemy, nor are we said to be at war. This is true; but neither of these things were necessary to be done: because as to France, she was sufficiently described by the title of the French republic; and as to America, the degree of hostility meant to be carried on, was sufficiently described without declaring war, or declaring that we were at war."
8.20.2005 5:54pm