[Congressional Record Volume 162, Number 175 (Tuesday, December 6, 2016)]
[Extensions of Remarks]
[Pages E1604-E1605]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            RESTORING THE CONGRESSIONAL DUTY TO DECLARE WAR

                                 ______
                                 

                           HON. ALAN GRAYSON

                               of florida

                    in the house of representatives

                       Tuesday, December 6, 2016

  Mr. GRAYSON. Mr. Speaker, for more than a century and a half, 
Congress declared war as the framers of the Constitutional Convention 
of 1787 directed when they wrote that Congress had the ``power to 
declare war.'' But starting in the 1950's, Congress began authorizing 
the President to make the determination for war and voters were 
deprived of the power to influence their Congressional representatives. 
The result has been labeled an Authorization for Use of Military Force, 
or AUMF. It was used in the Vietnam War of 1965-73 and the 2003 war 
against Iraq, 2003 to the present.
  I want to bring attention to a Rutgers Law Review article, 
``Restoring the Congressional Duty to Declare War,'' that has 
challenged the constitutionality of all United States wars fought since 
World War II. Rutgers School of Law Professor Emeritus Alfred W. 
Blumrosen and Steven M. Blumrosen, the authors of ``Restoring the 
Congressional Duty to Declare War,'' rely not only on the language of 
the Constitution that ``Congress shall have the power to declare war'' 
but also on the debates in the Constitutional Convention that began 
June 1, 1787. On that day, Charles Pinckney from South Carolina made 
clear that he opposed giving the power of war to the President because 
that would render him ``a Monarchy of the worst kind, to wit an 
elective one.''
  The Convention took two votes. The first put the power of war in the 
Congress and the second prohibited the Congress from transferring that 
power to the President. In the following weeks all but one member of 
the Convention joined Pinckney in the conclusion that Congress, and not 
the President, should declare war.
  Later in the convention, after Pinckney pointed out that Congress 
might not be in session when the country was attacked, the Convention 
provided that the Congress could allow the President to call out the 
state militias in cases of insurrection, invasion, or resistance to 
federal laws. Congress later implemented its power by declaring a 
limited war on France for seizing seamen from American ships under 
claims that they were French. In 1880 the Supreme Court approved this 
procedure by interpreting the Declare War clause as encompassing ``any 
contention by force'' with another country, including both full-scale 
wars and limited wars. But the events at the Convention and the early 
Supreme Court opinions were not considered by Congress and the lower 
Federal Courts when the president was allowed to determine war in 
Vietnam in 1964 and against Iraq in 2003.
  The authors found that the Federal judicial system had ignored the 
decision of the Constitutional Convention and the early Supreme Court 
opinions.

[[Page E1605]]

  Mr. Speaker, I urge all interested in this subject to refer to Alfred 
W. Blumrosen & Steven M. Blumrosen, Restoring the Congressional Duty to 
Declare War, 63 Rutgers U.L. Rev. 407 (2011).

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