the-declare-war-clause

Jason Joseph – The Commerce Clause and Declare War Clause

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Under the Articles of Confederation, states had the power to handle their commerce largely independently which hindered trade between states and hurt the overall economy. The Commerce Clause allowed Congress to centralize trade between nations, states, and Indian tribes. This increased trade and the movement of goods, bolstering the economy. In 1808, the first year it was authorized by the constitution to do so, Congress banned the importation of slaves because it fell under foreign commerce. This, as well as Gibbons v. Ogden (1824), provided a precedent for Congress to overrule state laws that pertained to interstate or foreign commerce. Katzenbach v. McClung (1964) was a case where McClung believed Congress had no power to integrate his restaurant. McClung was forced to integrate because his business fit the definition of interstate commerce and Congress therefore had authority over it. The Supreme Court ruled that segregation created limitations on African Americans who traveled to different states, falling under the Commerce Clause, allowing Congress to gain more authority over the states to end segregation. The definition of interstate commerce is highly contested with those wanting decreased government oversight pushing for the original definition of navigation and trade, and those wanting increased government oversight arguing for a broader interpretation. By leaving the meaning of interstate commerce broad it assures that as the circumstances in the United States change so too can the economic practices.

The Declare War clause gives Congress the sole power to wage war, commandeer citizens’ ships in times of war, and provide legislation over obtained territory. The framers intended the Declare War clause to serve as a check to the President’s military power. However, the framers also wanted The President to keep enough autonomy in order to respond to sudden attacks against the nation. In 1964, Congress authorized military support to defend the assets and allies the United States had in Southeast Asia. This led to the Vietnam War, an undeclared war,  where The President took actions that vastly expanded on Congress’ authorization, such as having a draft. When President Nixon approved a secret bombing in Cambodia during the war, Congress realized it needed increased power in foreign military conflicts. The War Powers Resolution of 1973, mandates that The President communicate with Congress before using force, and obtain approval from Congress for missions longer than 60 days. This is intended to allow Congress to control the military direction of the nation. On the contrary, this resolution gives The President 60 days of unauthorized action, which prior to the resolution The President did not have. As weapons’ capability for destruction grows, troops travel faster, and information is spread more rapidly, the devastation and lasting impact that can be accomplished in 60 days of conflict is increasing. Can military action that profoundly affects the entire United States and the well-being of other nations be entrusted to a single individual?

 

Bibliography

Barnett, Randy E. “Why Congress and the Courts Should Obey the Original Meaning of the Commerce Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/752.

 

Barnett, Randy E., and Andrew Koppelman. “The Commerce Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/752.

 

Denniston, Lyle. “Was the Vietnam War Unconstitutional?” National Constitution Center. Last modified September 20, 2017. Accessed May 30, 2023. https://constitutioncenter.org/blog/was-the-vietnam-war-unconstitutional.

 

Oyez. “Gibbons v. Ogden.” Oyez. Accessed May 31, 2023. https://www.oyez.org/cases/1789-1850/22us1.

 

———. “Katzenbach v. McClung.” Oyez. Accessed May 31, 2023. https://www.oyez.org/cases/1964/543.

 

Ramsay, Michael D., and Stephen I. Vladeck. “Declare War Clause.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/753.

 

Richard Nixon Presidential Library and Museum. “War Powers Resolution of 1973.” Richard Nixon Presidential Library and Museum. Last modified July 27, 2021. Accessed May 31, 2023. https://www.nixonlibrary.gov/news/war-powers-resolution-1973#:~:text=The%20War%20Powers%20Resolution%20of,the%20executive%20branch’s%20power%20when.

 

Vladeck, Stephen I. “Congress’s Statutory Abdication of Its Declare War Power.” National Constitution Center. Accessed May 31, 2023. https://constitutioncenter.org/the-constitution/articles/article-i/clauses/753.

 

The Declare War Clause

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When the Constitution was originally written in 1787, the Antifederalists became fearful that the new Constitution would give too much power purely to the President, so the new government would resemble a monarchy more than the democratic system promised. The Antifederalists opposed the US Constitution because they believed that it did not balance powers. The Declare War Clause addressed the power the President had when addressing declarations of war against other nations.

The Declare War Clause was initially written with the purpose of limiting the President’s use of the USA’s military forces without Congress’s clear approval. The clause was a preventative clause to insure the President couldn’t abuse their powers. The approval of Congress was thought necessary for both formal declarations of war and for smaller uses of force in 1787. Modern Presidents have used military forces without formal consent from Congress. In 1950, President Truman ordered for US forces to enter Korea without approval from Congress. Constitutional scholars argued that, regardless of the original intention of the clause, there is now a modernized practice that allows the President considerable power to use military forces. Some constitutional scholars believe that Presidents have full authority when responding to an attack on the USA, while others think that the President controls offensive and defensive attacks. 

Generally, a majority agree that presidential actions pursuant to Congressional authorizations are constitutional, although there is debate regarding how broadly any particular authorization goes. Presidents have claimed authorization from informal congressional actions such as Congress’s failure to object to ongoing hostilities. This has caused controversy surrounding the clause and how effective or respected it is.

Some Presidents have decided independently on approving military action, while others stayed true to the Declare War Clause. Many scholars believe that no matter what the original purpose of this clause was, it has transformed into a more modern understanding that allows the President more independent power. Scholars believe that Presidents are allowed to initiate the use of military force without formally declaring war, but that Congress’s exclusive power is issuing the proclamation of war. In the 1863 “Prize Cases”, the Supreme Court stated that as a defensive measure, President Lincoln’s blockade following an attack was ambiguous regarding whether the authority for said blockade came from specific statutes of Congress. Court noted that the President couldn’t begin hostilities without Congress’s approval. Now courts avoid deciding cases based on limits on what types of disputes courts can resolve, including political questions. As a result, the precise implications of the Declare War Clause remain unanswered. Leaving room for debates and disputes. The “Prize Cases” show that the basics of this clause remained upheld because it was decided that the President couldn’t begin a war or use military sources without Congress’s approval.

In history, we have learned about the causes of revolutions in France and America, and the main cause for both revolutions was fear of a monarchy and the concentrated power that comes with a monarchy. The Declare War Clause guards a piece of power against being a single man’s decision and therefore aids in protecting the USA against a monarchy.