To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Five wars have been declared in American history: the War of 1812, the Mexican-American War, the Spanish-American War, World War I and World War II. It should be noted that the declaration of the Mexican-American War occurred after America and Mexico had commenced hostilities -- with Congress simply recognizing the existence of a state of war. Thus some historians argue that there have really only been four true declarations. Still other historians argue that the legal doctrines and legislation passed during the operations against Pancho Villa constitute an additional declaration of war.

American presidents often have not sought formal declarations of war, instead maintaining that they have the constitutional authority, as commander in chief (Article Two, Section Two) to use the military for "police actions". Some have argued this could pass as offensive actions, though historically police actions fell mostly under the prevue of protecting embassies, U.S. citizens overseas, and shipping such as the Quasi War.

As to the Philadelphia Convention and the intent of the American founders, there was only one delegate who suggested giving the Executive the power to take offensive military action: Pierce Butler of South Carolina. He suggested the president should be able to, but in practice would have the character not to do so without mass support. Elbridge Gerry, a delegate from Massachusetts, summed up the majority viewpoint saying he "never expected to hear in a republic a motion to empower the Executive alone to declare war." George Mason, Thomas Jefferson, and others voiced similar sentiments.

The Korean War was the first modern example of the U.S. being taken to war without a formal declaration, and this has been repeated in every armed conflict since. Beginning with the Vietnam War, however, Congress has given other various forms of authorizations to do so. Some debate continues as to the appropriateness of these, as well as the tendency of the Executive Branch to engage in the origination of such a push, its marketing, and even propagandizing or related activities to generate such support.

Thus in light of the speculation concerning the Gulf of Tonkin Incident and the possible abuse of the authorization that followed, in 1973 Congress passed the War Powers Resolution, which requires the president to obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities with a full disclosure of facts in the process. Its constitutionality has never been settled, and some presidents have criticized it as an unconstitutional encroachment upon the President.

Some legal scholars maintain that offensive, non-police military actions, while a Quorum can still be convened (see Continuity of Government), taken without a formal Congressional declaration of war is unconstitutional since no amendment with two-thirds majority of states has changed the original intent to make the War Powers Resolution legally binding. However, the Supreme Court has never ruled directly on the matter and to date no counter-resolutions have come to a vote. This Separation of Powers effect of stalemate thus creates a "functional", if not unanimous, governmental opinion and outcome on the matter.

Supreme Court cases

• Youngstown Sheet & Tube Co. v. Sawyer (1952)
• Hamdan v. Rumsfeld (2006)

See also

• Commander-in-Chief
• Unitary executive theory

References

• Fisher, Louis (2004) Presidential War Power, 2d Rev. Edition. University Press of Kansas
• Hendrickson, Ryan C. The Clinton Wars: Congress, the Constitution and War Powers. Vanderbilt University Press, 2002
• Lawson, Gary, "Delegation and Original Meaning" (October 2, 2001). Virginia Law Review, Vol. 88, April 2002
• Madison, James. Federalist No. 45, The Federalist Papers
• Yoo, John C., "War and the Constitutional Text" . University of Chicago Law Review, Vol. 69, No. 4, Fall 2002
• 2 Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed. 1937).