To Declare War
Tilburg Law & Economics Center (TILEC), Tilburg University; Criterion Economics, L.L.C.
Duke Law Journal, Vol. 41, No. 1, pp. 27-121, 1991
The transition from peace to war and back again fundamentally alters many legal relationships, whether they are privately ordered through contract or publicly ordered through statutes, common law doctrines, treaties, or even the Constitution. As one would expect from the Vietnam War experience, lawsuits filed by parties, ranging from insurance companies to conscientious objectors, may turn on the question of whether a war may have been lawfully authorized by Congress in the absence of a formal declaration of war.
In Part I of this Article, I begin by documenting what is perhaps obvious - that Congress did not declare war against Iraq on January 12, 1991. I agree with Professor Harold Hongju Koh of Yale Law School and his colleagues (whom I call the Koh Signatories), and I disagree with President George H.W. Bush's lawyers in the Department of Justice, that it is a justiciable political question for a federal court to determine whether armed conflict of a certain level or ferocity constitutes war for purposes of the War Clause of the Constitution. To commence warfare on the scale witnessed against Iraq, the President needed to receive a formal declaration of war. He did not. Although there is a category of warfare that the President may initiate without a prior declaration of war, the Persian Gulf War was too mammoth to be characterized as a police action. And although there are cases - poorly reasoned in my view - establishing that Congress may authorize limited war, the Persian Gulf War from its very inception did not fit within this category. Although politically significant, Congress's joint resolutions of January 12, 1991 was a legal nullity, a merely precatory or hortatory gesture. By failing to declare war against Iraq, Congress produced an anomaly in our representative democracy: The Persian Gulf War lacked constitutional legitimacy despite its overwhelming support among the American electorate. Why is Congress more willing to let the country go to war than to declare war? How can the evils of permitting America to wage war be any less that the evils of formally declaring war?
In Part II, I argue that, in the interest of enhancing political accountability, Congress should authorize war only through formal declaration. Congress should not be able to implicitly authorize the initiation of war merely by appropriating funds for war purposes. A declaration of war fulfills Congress's representative function because it is more immediately visible to the electorate, less susceptible to ambiguity and disagreement once it is made, and thus more conducive to effective monitoring of the performance of political actors. Further, no legal significance should attach to a joint resolution that members of Congress have represented to be tantamount to a declaration of war. Congress should have a duty to declare war if it favors war and believes that the level of hostilities envisioned requires the President to receive prior congressional authority. It is my purpose in Part II to show that insights into the economics of organization shed light on the genius of the Framers, and counsel us to maintain strict formality in the separation of government functions relating to the decision to go to war.
In Part III, I examine the formality of the declaration of war against Japan on December 8, 1941. I show how this brief congressional resolution substantially exceeded the degree of formality required by the letter of the Constitution. The declaration reflected a different, and in my view a superior, conception of the process for the authorization of war than one finds either in the actions of President Bush and Congress in the Iraq crisis or in the recommendations of the Koh Signatories or Professor Stephen L. Carter of Yale Law School.
In Part IV, I examine the proposals of Professor Carter and of the Koh Signatories. Although I concede that the prosecution of war could be regulated through either Professor Carter's proposal to use the appropriations process, or through the Koh Signatories' proposal to use the equitable powers of the judiciary to enjoin the President, the degree of political accountability that would correspond to these arrangements would be inferior to that which would accrue under a formal declaration of war. In addition, in Part IV and throughout this Article, I use the circumstances of the Persian Gulf War as an opportunity to assess and to critique the growing body of work on the war powers by Professor John Hart Ely. Although I agree with many of Professor Ely's premises regarding political accountability, I disagree with most of his major conclusions regarding what the Constitution requires, or should require, in matters of war.
Number of Pages in PDF File: 96
JEL Classification: K00, K10, K19, K30, K39Accepted Paper Series
Date posted: December 19, 2001
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