[Congressional Record (Bound Edition), Volume 162 (2016), Part 12]
[Extensions of Remarks]
[Pages 16445-16446]
[From the U.S. Government Publishing Office, www.gpo.gov]




            RESTORING THE CONGRESSIONAL DUTY TO DECLARE WAR

                                 ______
                                 

                           HON. ALAN GRAYSON

                               of florida

                    in the house of representatives

                       Thursday, December 8, 2016

  Mr. GRAYSON. Mr. Speaker, we currently have United States military 
forces involved, directly and indirectly, in conflicts in Pakistan, 
Afghanistan, Iraq, and Syria, among other

[[Page 16446]]

places. Our use of attack drones is blurring the distinction between 
war and peace. Therefore, it is time to reflect on the constitutional 
basis for the use of military force by the United States, anywhere in 
the world.
  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 1950s, 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. The article examines 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.
  Mr. Speaker, I urge all interested in this subject to refer to 
Restoring the Congressional Duty to Declare War, 63 Rutgers U.L. Rev. 
407 (2011).

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