« (irony alert) Natanyahu on Iranian fanatics | Main | According to HRW, the Syrian rebels are torturers »

17 September 2012


Feed You can follow this conversation by subscribing to the comment feed for this post.

Bill H

If you are asking for opinions, mine would be no. A state of war could exist without requiring active hostilities, and I believe history records such periods rather frequently, though not involving this country. The active hostilities would require orders from the military's Commander in Chief but, as we know all too well, that does not seem to require a formal declaration of war.

In fact, it seems to me that this nation has rather firmly separated acts of war from formal declaration of war altogether, regarding them as separate and unrelated things and the later as an unnecessary formality.


A very provocative question.

It's late and I'm lazy now, so just off the top of my head, I would say that the question is whether or not such a declaration is subject to veto. If it is subject to veto, it can be overriden. If not subject to veto, a bare majority of one makes the declaration effective at least in the formal sense.

If we assume that is considered a bill subject to veto, and the Congress voted to override that veto,
as the commander in chief of the military, such a declaration would not abridge that status and the president would be free to refuse to engage the military in that declaration of war.

If that were ever to occur, I would anticipate efforts at impeachment.

Hank Foresman

Pat, interesting question. The Constitution as you know merely states Congress "to declare war." Otherwise in Article 1 Section 8 it is quiet on the manner; however if one looks at Article 1 Section 7 it states: "Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill." Which leads me to conclude that a President may (again not prescribed) veto a Declaration of War.

Mark Gaughan

Every Declaration of War (11 of them in 5 wars), by the U.S. Congress has been signed into law by the President. Do they have to be? That's a good question Pat. The constitution doesn't seem to say that they must be. What is the answer?



The reason I raised this issue is that given Bibi's obsession I can imagine an Israeli strike on Iran followed by an effort in Congress to pass a declaration without the assent of the CinC. The Congress has the power to declare war but it has no authority to command the armed forces. pl


No, the Congress can declare war independently, but as a practical matter the President, as the CIC, could theoretically choose not to act on a Congressional war declaration.


If congress can declare war we are deep doo-do. Unless Obama does choose to ignore congress. I have no doubt the the stupidity of the US congress.

"Sen. Joseph Lieberman (I-Conn.) said any American strike (on Iran)would have broad backing in the U.S. Congress.

Speaking Monday at B'nai B'rith International's policy conference, Lieberman said, "There will be overwhelming bipartisan support of that action in the Congress of the United States," regardless of whether Obama or Mitt Romney is president at the time.""


That authority is granted to Congress in the US Constitution. The stupidity you mention is only a reflection of the electorate who put those people in office and can vote them out in the next election.


It raises a conundrum. Can the president refuse to prosecute a war that Congress has declared? Yes. Can he then be impeached? Yes, because "high crimes and misdemeanors" is whatever the House says it is.

If this is where we are going, the President needs to get on TV tonight and call out any House Sponsors of such a declaration "foreign agents."

robt willmann

This is an excellent question. Must a Declaration of War be signed by the president to be effective, and if so, can it be vetoed or the subject of a pocket veto (not signed)? I have not researched it, but I agree with the approach of Hank Foresman. Since the constitution expressly makes the president the commander and chief of the military, I think that Congress cannot order the armed forces into war and military commanders should stand on their right to disobey an unlawful order and decline to follow any directive by Congress that a war take place.

If Congress would think that its declaration of war would be automatically effective, and the president declined to order the military to begin a war, Congress' only alternative would be to impeach the president and have a trial in the Senate on whether the president should be removed. If the president were to be removed, the vice-president would become president and could still decline to order the military into battle. This would create quite a spectacle, and the public would indeed be expressing its opinion.

But this question does not present itself unless you have a real declaration of war. The Authorization to Use Military Force against Iraq was not a declaration of war and was blatantly unconstitutional, because it handed off to the president the authority to declare war; it did not present the issue of the president as commander and chief and whether he (Bush jr.) could decline to order the military into battle as commander in chief.

Patrick D

I've wondered about that same scenario, Colonel.

I don't know the legal answer but the potential dynamics and implications are wild.

Congress is not popular and that might give a President enough leverage to push back.

In terms of those who push Congress (successfully or not), evangelicals can campaign for it without putting much on the line but it is risky for organizations with a Jewish-American identity like AIPAC and B'nai B’rith. It is the only scenario I can imagine that might spark or at least sow the seeds of broad-based anti-Semitism in the U.S.

The Israeli government's view of that risk might also be interesting. They value their incredibly favorable relationship with the U.S. and appreciate the important role Jewish-Americans have played in that. However, the "Jewish State" also wants more Jews and understands most of those in the diaspora won't immigrate there if they are comfortable.

At the level of Jewish-Israeli demographics, the Ashkenazi elite who value the relatively secular nature of the country they built and still manage to run have a Haredi problem. The population of Israeli Jews who want a return to that "old-time Judaism" is growing faster than those who don't. They like their personal freedoms. They can’t exclude groups like Haredi from a Jewish democracy and there won't be an Ashkenazi baby boom so a fresh wave of Ashkenazi immigrants is a potential answer.

Wild and potentially sordid stuff.


For better, or worse, as we all know Congress has been disinclined for years to issue formal declarations of war.

If Israel were to attack Iran there would no doubt be some sort of near-unanimous resolution calling for the full support by the US, but no declaration of war.

I think, maybe naively, that Obama would only give lip service to the resolution, perhaps supplying Israel with intelligence and some resupply of material aid, while not directly assisting Israel with overt military action. All the while perhaps brokering some sort of cease fire.

Who knows?

I do find it interesting that during the Falklands War, the United States more or less followed that course with its "real" ally, the UK. There, the United States put its national interests above those of its ally and maintained some level of neutrality (though if push came to shove, imho, the US would have stood with Britain if necessary).

But we can't manage threading that needle with the non-ally Israel?

The Moar You Know

Such a vote is subject to veto. The answer is "yes", you need the President on board. Which is a good thing. I'd sooner leave the power to declare war to bunch of rabid howler monkeys than to the House of Representatives, regardless of whose leadership it is under.

I find Lieberman's reported statement above utterly appalling.


BHO can veto, as per section 7, but Congress will override him overwhelmingly.

BHO, as Head of State and Commander in Chief, can wage war as he wants and negotiate a peace treaty as he wants.

Congress can and will impeach him, so September 25 is still on target.

BTW, the President can declare and wage war without Congressional approval to repel an invasion.



Interesting question. I believe Mr. Foresman has the correct answer. I hope we don't find out. Can't believe Congress would be that stupid. (On an individual level many Congressmen are, but as a body?)

My question is: How do those pushing a war with Iran propose to pay for it? Raise taxes? Cut spending? Wars, and their aftermath cost money. For decades after. Lots of money.

Mark Logan

I will opine the provision giving Congress the power to issue Letters of Marque was put in for precisely this reason.

I can't think of any other reason that power wouldn't have been given to the CIC of the military, anyway.



it was a common feature of government world-wide and it enabled the government to reduce naval expeditures. pl


Hank Foresman

I am doubtful that a DoW is a law in that sense. if it is not a law it cannot be vetoed. On the other hand the congress could not specify actions in a DoW and the CiC could do nothing if he chose to. pl


Dear Col: My suspicion is that it requires both the presidential signature (or veto over-ride) and congressional approval. Given the frustration with unending unilateral monarchist wars in Europe, the framers went at length to balance powers and the power to declare war is one of the most serious. Still, I am not a constitutional scholar, unlike our president (irony alert).

Mark Logan


I know. The concept of Congress being able to declare war on it's own may be, but rendered all but moot. They can't use the Federal armed forces without the President.


What did Andrew Jackson say to the Supreme Court. Let them enforce their decision, which of course came to naught.

too bad the Israeli Firsters seem to outnumber the America Firsters. Pat Buchanan has for a long time called Congress an "Israeli Occupied Territory." Ditto for many American minds that reflexively toe the Israeli line of the day, no matter what it is. "Israeli Occupied Minds."

have known about the siege of the MUFA in Sinai by Al-Qaida Bedouins for a few days. Similar in Afghan, worse than i ever imagined. that's what happens when u take your eye off the ball. Letting Netanyahu and his Israeli-Firster Minions (Bachman et al) hector u about non-existent threats from Iran WHILE AL-QAEDA & TALIBAN CLEAN OUR CLOCK. (we should have left Afghanstan 10 years ago after icing ben Laden b/ we took our eye off the ball for the Irak NeoKon great adventure.)

SAC Brat

Does a Declaration of War trigger any other government actions? Couldn't the President make the Congress look silly by asking "How are you going to fund this?"


SAC Brat

They have the funding power. pl


Well, the oldest precedent is 1812, and that was an act declaring a state of war between the US and UK and authorizing the president to use his powers as CIC to use all land and naval forces to pursue it, etc. Authorizing him to issue letters of m&r as well. It was a close vote with New Englanders against. 1812 differs from this hypothetical case because Madison all but asked for war in a preliminary message to Congress; in fact all the others differ in the same way, afaik (Polk, McKinley, Wilson, Roosevelt all requested war in one way or another).

As a practical matter it wouldn't be real sane to declare war without the CIC's urging or at least acquiescence. But then we're not talking about sane people or a sane institution or process at the moment. Veto or refusal to prosecute *could* be a pretext for impeachment; it's a purely political decision so anything could be.

But as I remember from the Clinton deal, coming up with articles of impeachment means writing them and getting them through committee before actually voting on them. Takes time. It could possibly be done before the election, but they'd have to go into special session or something like that. They only have a few legislative days left, if even that.

And since removal takes a 2/3 vote, even if they could ram it through in a blazing hurry, the only point of doing it really would have to be hanging the "impeached" label on BHO before the election. Whether that would have any material effect on the election seems doubtful, unless it would be a backfire on the impeachers as happened with Clinton.

Setting impeachment aside, the pressure of a declaration vote on Obama would be ferocious. But because of the legislative calendar a war declaration would be a real stampede job that I don't think would have much support outside of Congress and certain religious circles (and not all Jewish by any means). And if you go into an election with a foreign policy crisis hanging over the nation, conventional wisdom is that it helps the guy who's already in, unless he's Jimmy Carter. Republicans seem to get the two confused, but Obama's not Carter. Plus, Netanyahu is already getting fingered for interfering in our election.

So the scenario really wouldn't work in his favor, I don't think, either directly or through electing his allies. I'm just hoping N's snarls are snarls of impotent rage that he isn't getting his way and that it won't happen the way you fear.

Hank Foresman


Here is the wording of the Declaration of War against Japan in 1941; "Congressional Declaration of War on Japan

December 8, 1941

JOINT RESOLUTION Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same.

Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America:

Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared;
and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan;
and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.

Approved, December 8, 1941, 4:10 p.m. E.S.T."

It is a Joint Resolution of Congress so it would be covered by the constitutional process outline in Article 1 Section 7. Others have mentioned that if veto and the veto over ridden the President could refuse to exercise his powers as CinC resulting in his or her impeachment. I think that is certainly one scenario. I hope we don't find out.

The comments to this entry are closed.

My Photo

February 2020

Sun Mon Tue Wed Thu Fri Sat
2 3 4 5 6 7 8
9 10 11 12 13 14 15
16 17 18 19 20 21 22
23 24 25 26 27 28 29
Blog powered by Typepad