General Discussion
In reply to the discussion: I'm astonished so many DUers are cool with ending Habeas Corpus [View all]DissedByBush
(3,342 posts)Given the history of approved military actions, and apparent lack of them being overturned by the Supreme Court, you need to show where the Supreme Court has said a military action is invalid where a declaration of war has not been given. The only constitutional crisis over this has been Nixon wanting to continue military action in Vietnam after Congress withdrew its authorization.
But let's look at the Constitution again:
"The Congress shall have power ... declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;"
Do you see "declaration or war" anywhere in that. No, it just says "declare War" and gives no specifics as to what instrument Congress will use to accomplish this task. It doesn't say Congress has to pass a "Declaration of War" (which it has only done five times in our history). It doesn't require the three magic words "Declaration of War." Established jurisprudence says that any authorization of force fulfills this requirement to declare war.
The constitutional issue here is separation of powers: Congress must approve a war, the President cannot do it under his own power as Commander in Chief. That is why "declare War" is in this paragraph, not an issue of magic words.
Note also Letters of Marque and Reprisal as another power. That is a military action that Congress can authorize apart from a declaration of war. It would have been absolutely constitutional for Congress to award a Letter of Reprisal against any Al Qaeda members, and have a private contractor take out the likes of al-Awlaki.
Congress can authorize that, but can't authorize our own military without using three magic words?