[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 13. Powers and Prerogatives of the House]
[B. War Powers]
[Â§ 5. Declarations of War]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1792-1794]
 
                               CHAPTER 13
 
                  Powers and Prerogatives of the House
 
                             B. WAR POWERS
 
Sec. 5. Declarations of War

    Article I, section 8, clause 11 of the Constitution authorizes 
Congress to declare war. Granting Congress this authority and making 
the President the Commander in Chief of the Army and Navy represents a 
compromise between the views of delegates to the Constitutional 
Convention who wanted to grant Congress authority to ``make'' war and 
delegates who wanted to grant such authority to the President alone, 
the Senate

[[Page 1793]]

alone, or the President and Senate together.(14~)
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14. Constitution of the United States of America: Analysis and 
        Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., p. 325 
        (1973). Delegates Madison and Gerry, who introduced the 
        amendment substituting ``declare war'' in place of ``make 
        war,'' which appeared in an early draft of the Constitution, 
        noted that the change would, ``leav[e] to the Executive the 
        power to repel sudden attacks.'' 2 M. Farrand, The Records of 
        the Constitutional Convention of 1787 (New Haven: rev. ed. 
        1937) 318; and Constitution of the United States of America: 
        Analysis and Interpretation, S. Doc. No. 92-82, 92d Cong. 2d 
        Sess., n. 9, p. 326 (1973).
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    All declarations of war since 1936 have been made by adoption of 
joint resolutions approved by the President.(15~) Either 
House may originate a joint resolution to declare war. In all cases 
during this period, the House suspended the rules and promptly agreed 
to these joint resolutions.
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15. See 4 Hinds' Precedents Sec. 3368; and 7 Cannon's Precedents 
        Sec. 1038 for earlier precedents relating to declarations of 
        war on Spain and Germany, respectively.
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    The provision of the House rules which requires that matters 
reported by committees not be considered in the House until the third 
calendar day on which the report has been available to Members does not 
apply to declarations of war.(16)
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16 Rule XI clause 27(d)(4)(A), House Rules and Manual Sec. 735(d)(4) 
        (1973).
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    The House Committee on Foreign Affairs has jurisdiction over 
legislation declaring war.(l7)
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17. Rule XI clause 7(f), House Rules and Manual Sec. 689 (1973).
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    Despite the constitutional provision authorizing Congress to 
declare war, American forces have been committed to protracted land 
wars in Korea and Indochina in the absence of such declarations. After 
North Korea attacked South Korea in June of 1950, the President without 
consulting Congress ordered air and sea forces to respond. He committed 
ground troops when the United Nations Security Council requested 
assistance from United Nations members. Although the President never 
requested a declaration of war, he proclaimed the existence of a 
national emergency in December of 1950, six months after the outbreak 
of hostilities.(1) Congressional acquiescence in the 
American involvement in the Indochina war was originally found in the 
Gulf of Tonkin Resolution approved by the House and Senate in August of 
1964.(2) Following express repeal of this resolution in 
January of 1971, Congress in most instances (3~) approved au

[[Page 1794]]

thorizations and appropriations to support troops in the field. The 
Second Circuit Court of Appeals, applying the test ``whether there is 
any action by the Congress sufficient to authorize or ratify the 
military activity'' in Vietnam in the absence of a declaration of war 
or express statutory sanction, held that congressional authorization 
could be implied from approval of legislation to furnish manpower and 
materials of war.(4) The court observed that. ``. . . 
neither the language nor the purpose underlying that provision [the 
declaration clause] prohibits an inference of the fact of authorization 
from such legislative action as we have in this instance'' 
(5)
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 1. See Sec. 12.1, infra, for the text of this proclamation.
 2. See Sec. Sec. 8.1, 8.2, infra, for discussion of this resolution.
 3. See the precedents in Sec. 10, infra, for restrictions on use of 
        forces.
 4. Orlando v Laird, 443 F2d 1039 (1973), cert. denied, 404 U.S. 869. 
        Accord, Da Costa v Laird, 448 F2d 1369 (2d Cir. 1971). Contra, 
        Mottola v Nixon, 318 F Supp 538 (N.D. Calif. 1970), reversed 
        for lack of standing, 464 F2d 26 (9th Cir. 1972). The Supreme 
        Court summarily affirmed a decision of a three judge district 
        court dismissing a challenge to the constitutionality of the 
        war on political question grounds. Attlee v Richardson, 411 
        U.S. 911 (1973), aff'g., 347 F Supp 689 (D.D.Pa. 1972).
 5. Orlando v Laird, supra, at p. 1043. Section 8 of the War Powers 
        Resolution (see Sec. 4.1, supra, for the text) which states 
        that authority to introduce armed forces cannot be inferred 
        from any provision of law or treaty unless sanction is 
        expressly stated was drafted as a direct result of Orlando v 
        Laird. See S. Rept. No. 220, 93d Cong. 1st Sess., at 25 (1973).
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    Congress on several occasions has empowered the President to 
introduce United States Armed Forces into hostilities by specific 
statutory authorization short of formal declaration of 
war.(6)
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 6. See Sec. 8, infra.
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