“[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;” – United States Constitution, Article 1, Section 8, Clause 11
Once upon a time, the United States Congress had the sole authority to send U.S. troops to war. They would issue a formal declaration of war (or, occasionally, some other type of authorization) and, after Congress had done their part, the president would execute the war as the Commander-in-Chief of our military forces. This pattern was followed without exception until after World War II.
Most wars since have followed some new, extra-Constitutional process . . . one with no clear ground rules, no clarity, and no consistency. Sometimes, wars have been authorized by Congress under resolutions that authorize the use of force, but don’t identify themselves as declarations of war and have sometimes been issued after hostilities have already begun. Wars authorized by Congress in this way include the Vietnam War, Persian Gulf War, War in Afghanistan, and War in Iraq. Other wars, however, enjoyed no such Congressional authorization and were waged unilaterally by the president under his own authority, or under the authority of the United Nations. Unauthorized wars include the Korean War, Bosnian War, and ongoing War in Libya.
The Constitutional reality is that wars formally declared by Congress are legal, wars explicitly authorized by Congress (but not formally declared) are probably legal but not clearly so, and wars executed by the president without Congressional approval are illegal. The President’s authority as Commander-in-Chief does not authorize him to unilaterally send troops to war; if it did, why would the Constitution have explicitly reserved the power to declare war to Congress? Where would the checks and balances be? Giving the president full-rein over the decision to go to war would be to instill him as a military tyrant. I am 100 percent certain that is not what the founders had in mind.
