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Whatever Happened to Declarations of War?
QUESTION
Chapter 6 of Rossum and Tarr introduces us to the delicate issue of congressional power to declare war vs. the President's power as Commander-in-Chief. In the "old days," life was simpler and the President would ask for a declaration of war and would receive one from Congress (WWI and WWII). The United Nations and "peace keeping" forces altered this equation, leading up to the Korean "police action," and the steadily growing Vietnam War. The Gulf of Tonkin Resolution highlights the congressional authorization for Vietnam (as well as the annual appropriations), and the War Powers Resolution attempted to settle the areas of governmental dispute.
Vietnam was not, of course, the last action in which we have become militarily involved. What action, if any, did Congress take to authorize committing U.S. troops in Lebanon, Bosnia, Iraq (First Gulf War), Afghanistan, and Iraq (2nd Gulf War)? Why did Congress choose not to declare war? What difference, if any, is there between declaring war and appropriating the funds to conduct a war?
Suspending Individual Civil Rights (200 words)
Rossum and Tarr discuss four alternative theories to determine under what conditions the federal government can suspend the civil rights of individuals (p. 208-209). Which of the four alternatives do you prefer, and why?
| Subject | Law and governance | Pages | 3 | Style | APA |
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Answer
War and Civil Rights
Declarations of War
Over time, Congress has not taken decisive action in the bid to commit American troops to conflict areas around the world in recent times. In the case of the 2002 deployment to Iraq, the President asked Congress to authorize the use of force against Iraq. This is what Congress then did—authorised the use of force (Rossum et al., 2019). In Lebanon, President Reagan committed troops to the Lebanese government cause without Congressional authorization and sought this authorization later. Congress gave two authorizations. A Declaration of war comes with the obligation to do what has to be done at the end of a declared war—declaration of victory. In war nomenclature, a declaration of war would need the all-concerted efforts of Congress regardless of the divisions there are. This may clip the powers, and the urgency with which a sitting president may need action taken. The difference that exists between declaring war and appropriating funds to conduct a war is that in the latter, amendments can be made on the funding decision, appropriation and capping of the appropriation in a conflict by Congress. Congress may then clip the war powers of the president through appropriations and other legislative limitations. In the case of a declaration of war, once Congress has authorized the use of force, it cannot easily rescind or amend that authorization and its sole power then becomes funding or de-funding the conflict.
Suspending Individual Rights
I prefer the second alternative to viewing governmental power proposed in the Supreme Court in Milligan. In this view, the court took a quite restrictive view in terms of their estimation of the role of government in the suspension of individual rights. The court asserted that all constitutional limitations ought to apply on government action during wartime (Rossum et al., 2019). Their estimation in this assertion was guided by the fact that it is not without reason that the framers failed to include wartime exceptions in the Bill of Rights. The reason why I prefer this alternative is because it was also based on experience. It cannot be said that the framers had no personal experience of war and conflict as they wrote on the background of the Civil War, one of the greatest conflicts to have ever been seen. This perspective prevents the government from taking unilateral decisions to suspend rights and act with recklessness. It is an assertion that protects the rights of both the minority and majority in conflicts and during wartime, ensuring that government does not take advantage of war to trample on the civil liberties regardless of whether it is wartime or peace time (White, 2019). The supremacy of the Constitution is not to be pegged on the presence or absence of conflict; it is supreme irrespective of the circumstances.
References
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Rossum, R., Tarr, A.G, & Muñoz, V., (2019). American Constitutional Law: The Structure of Government. Vol. I, 1tth ed. New York: Routledge. ISBN 978- 0367233334. White, G. E. (2019). Looking backward and forward at the suspension clause: 'Habeas Corpus in Wartime'. Michigan Law Review, 117(6), 1313-1332. |