[Deschler's Precedents, Volume 3, Chapters 10 - 14]
[Chapter 13. Powers and Prerogatives of the House]
[B. War Powers]
[§ 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~)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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.
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
16 Rule XI clause 27(d)(4)(A), House Rules and Manual Sec. 735(d)(4)
(1973).
---------------------------------------------------------------------------
The House Committee on Foreign Affairs has jurisdiction over
legislation declaring war.(l7)
---------------------------------------------------------------------------
17. Rule XI clause 7(f), House Rules and Manual Sec. 689 (1973).
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
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).
---------------------------------------------------------------------------
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)
---------------------------------------------------------------------------
6. See Sec. 8, infra.
---------------------------------------------------------------------------