Magazine article New York Times Upfront

When Is a War Not a War? the U.S. Constitution Gives Congress the Power to "Declare War," but Modern Presidents Have Dispensed with the Formalities. (Time Past)

Magazine article New York Times Upfront

When Is a War Not a War? the U.S. Constitution Gives Congress the Power to "Declare War," but Modern Presidents Have Dispensed with the Formalities. (Time Past)

Article excerpt

As American casualties mounted into the tens of thousands in Vietnam, many members of the U.S. Congress--and much of the public--were feeling betrayed and fed up. Over the course of more than a decade, Presidents from John F. Kennedy to Richard M. Nixon had escalated U.S. involvement in the war, often without fully informing lawmakers and the public.

By 1973, Congress had had enough. It passed the War Powers Resolution (widely known as the War Powers Act), designed to limit presidential authority in war-making matters.

Nixon vetoed the bill, arguing it compromised U.S. security, and was an "attempt to take away ... authorities which the President has properly exercised under the Constitution for almost 200 years." Congress overrode the veto and the War Powers Act stood. Efforts to check presidential power had triumphed.

Or had they? When it comes to war, the President and Congress have engaged in a long-running turf battle. President George W. Bush's proposed invasion of Iraq has raised these issues again. In practice, what has emerged in the last 60 years is an uneasy sharing of authority over U.S. military activity. Despite what the Constitution might say, however, modern Presidents have consistently set the agenda for war.

BALANCE OF POWER?

The Framers of the Constitution outlined "checks and balances" on the use of military power. Too much control in the hands of the executive branch, the argument went, set the stage for tyranny. When necessary, though, leaders needed the ability to act quickly to defend the country. So the Constitution split these responsibilities:

The President shall be commander in chief of the Army and Navy of the United States ...

The Congress shall have power ... To declare war ... To raise and support armies ... To provide and maintain a navy ...

In short, the Constitution gave Congress control of the money for financing the military. The President, as Commander in Chief of the armed forces, holds the job of leading it, and possesses the independent power to call out troops in military emergencies.

The right "to declare war" is where history and practice have muddied the rules. Although Congress specifically holds the power to declare war, it has been the President who has sent soldiers, sailors, and pilots into combat. In fact, Congress has declared war only five times: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II. But since then, the U.S. has been in numerous other conflicts that were wars in everything but official declaration.

WAR, BUT NOT WAR

Since World War II, Presidents have launched military actions with varying degrees of congressional support. Congressional leaders in August 1950, for example, told President Harry S. Truman to do what he thought best to help South Korea defend itself against a surprise invasion by North Korea--and not to bother seeking congressional approval. The result was the undeclared Korean War, lasting three years.

The relationship between the executive and legislative branches grew less amicable during the Vietnam War. By 1964, about 118,000 U.S. military "advisers" were on the ground, aiding South Vietnam in battling Communist rebels backed by North Vietnam.

An incident in the Tonkin Gulf, off the coast of Vietnam, gave pro-war members of Congress and the Johnson administration an excuse to escalate: North Vietnamese gunboats attacked and badly damaged a U.S. destroyer on surveillance. Days later, a second, unconfirmed attack was claimed. Secretary of Defense Robert S. McNamara told Senators that the attacks were "part and parcel of a continuing Communist drive to conquer South Vietnam."

What McNamara didn't tell senators was that the U.S. ship was attacked while secretly and illegally assisting South Vietnamese raids on Communist targets. Based on the information they had, plus strong anti-Communist attitudes, Congress overwhelmingly passed the Tonkin Gulf Resolution. …

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