In the 20th century, America has been involved in 19 conflicts in which Congress has not declared war as the Constitution requires and service members have lost their lives in each of these 19 conflicts. The total number of service members who died as a result of these unconstitutional wars, which are conflicts not declared by the constitutionally predetermined authority, is less than 100,000. But even the loss of one life is a tragedy to the family of the killed service member and is completely illegal when the conflict was not approved by representatives of the people and the States.
Conflicts that are not declared by Congress are unwarranted and most of this unwarranted militarism is the result of the American public’s apathetic understanding of and desire for accountability to constitutional war powers, the Law of Nations, the Just War Doctrine, and the role of the President as Commander in Chief. If the President is always the Commander in Chief, then one would expect he has the authority to use the military, without the consent of Congress, whenever and however he thinks best to ‘protect’ the nation. Coincidently, many Presidents in the 20th century have used the military in this manner.
The belief that the President is the Commander in Chief when he takes the oath of office is not in accordance with the supreme law of the Land, which is the US Constitution. The first clause in Article II Section 2 of the US Constitution declares, “The President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into actual Service of the United States.” Without ambiguity this clause states the President only becomes the Commander in Chief when the armed forces; i.e., Army, Navy, Marine Corps, Air Force, National Guard, and Reserves are “called” into Service of the United States.
What this clause does not state is who is delegated the authority to “call” the armed forces into “Service”. The power to “call” up the armed forces is listed in Article I, which lists most all[1] of the powers delegated to Congress. Clauses 11 through 16 of Article I Section 8 delegates the power “to declare war,” “raise and support Armies,” “provide and maintain a navy,” “make Rules for the Government and Regulation of the land and naval Forces,” “to provide for the calling forth the Militia,” “to provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States.”
Considering that the clause from Article II restricts the President’s role as Commander in Chief to when the armed forces are called into actual Service and Article I provides Congress a wide range of powers including the power to declare war, employ the armed forces, regulate them, and maintain and fund them, it is clear only Congress can authorize the use of military force. It is also important to note the use of military force includes aggressive action without the use of troops on the ground, like bombing another nation from aircraft or shooting missiles into a country.
America’s involvement in armed conflict was intended to be completely within the authority of Congress; not in the hands of one man. But, not even Congress has been delegated the authority to draft American citizens to serve in a war they declare. The words used to express the powers delegated to Congress for forming armies are ‘raise’ and ‘calling forth’. Raise means to make or form; to collect; to enlist and calling forth means bringing or summoning to action. Neither of these two words even implies Congress has the authority to order citizens, against their will, to serve in a war for which they do not agree. This is a check and balance against unconstitutional wars, because if the President or Congress engaged America in an unconstitutional war, without the power to draft citizens into service, they would have to worry if the citizens would support them in their endeavor.
Article I also makes clear, standing armies are not authorized. Clause 12 and 13 of Article I Section 8 states “To raise and support armies, but no appropriation of money to that use shall be for longer term than two years;” and “To provide and maintain a navy.” The Constitution uses the term “armies” instead of “an army” and it only authorizes “armies” to be funded for two years at a time, whereas it authorizes a standing navy to be provided and maintained at all times. The reason for this is that the founders understood that unlike standing armies, a navy does not pose a threat to the liberty of the citizens. A navy, which is essential to the protection of our nation, is unmanned and unequipped to march into States and cities to impose martial law upon the citizens, but standing armies can. A navy and, by the same reasoning, an air force provide a true defense against foreign invasion while not posing a threat to the liberty of American citizens.
If you are sick to your stomach when hearing about American service members killed in undeclared wars around the world, then demand your US Representative and Senators limit the use of the military to only when they constitutionally declare war; ensure they uphold the Law of Nations and the Just War Doctrine when voting to declare war; and help others understand, especially politicians and news anchors, the President is not the Commander in Chief unless war is properly declared!
[1] Generally, Article I covers everything concerning the Legislative Branch, Article II covers everything concerning the Executive Branch, and Article III covers everything concerning the Judiciary Branch, but the Legislative Branch is the only branch delegated a power listed in another Article.
Good post!
Sent from my iPhone
Perhaps Americans feel overly challenged in re-focusing the executive branch’s authority because the president has been over reaching since Abraham Lincoln was president who executed the following unconstitutional acts?
– Invaded the US southern states absent congressional authority
– Declared martial law
– Blockaded southern ports
– Suspended the writ of habeas corpus for the duration of his administration
– Imprisoned without trial thousands of Northern citizens
– Arrested and imprisoned newspaper publishers who were critical of him
– Censored all telegraph communication
– Nationalized the railroads
– Created several new states without the consent of the citizens of those states
– Ordered Federal troops to interfere with elections in the North by intimidating Democratic voters
– Deported a member of Congress (Clement L. Vallandigham of Ohio) for criticizing the administration’s income tax proposal at a Democratic Party rally
– Confiscated private property
– Confiscated firearms in violation of the second amendment
– Completely annihilated the Ninth and Tenth Amendments.
It is difficult to imagine the courage or stupidity required to stand against the Commander in Chief under these ubiquitous conditions of imprisonment and possible execution (a New Orleans man was executed by General Benjamin Butler for taking down a U.S. flag). US Secretary of State William Seward established a secret police force that arrested thousands of Americans on suspicion of disloyalty and void of any due process. The Patriot Act or NDAA 2012 is akin to this type of control and we dismiss it publically and allow it to foster because other options are unfeasible.
The emperor has no clothes and our president can do anything he chooses because, as I responded in your post titled, “Is Religion the foundation of Justice and Law?” it is all about who can kick who’s ass! Our congressional representatives are irrelevant and an excellent example of this is demonstrated in the attached link where US Armed Services Committee member Jeff Sessions questions Secretary of Defense Leon Panetta. Clearly the UN, NATO, Arab League and other foreign entities now control the US military with concurrence granted from the president: http://www.youtube.com/watch?v=3GrGei0qKLk. Everyone knows the President has overstepped his bounds but in the end it simply does not matter because nothing can be done about it.
This is not a Republican issue nor is it a Democrat issue; presidents have been disregarding Article II Section 2 for 150 years. In reviewing the appeal to the British Crown formally known as the Declaration of Independence we can see listed among the injuries and usurpations by the king:
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
He has affected to render the Military independent of and superior to the Civil Power.
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
For quartering large bodies of armed troops among us:
For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:
This is difficult to ingest and comprehend particularly as we read deeper into our history and project forward from our point today.
Great article and engaging comments! Thank you AFP
This is a very good idea! Just want to say thank you for the information, you have to share Coach Outlet Store Online. Just coiutnne to write such a position. I will be your faithful reader. Thank you again.
The following series of comments were originally posted in March 2013 by Mr. Fanning, Lonni, Real McCoy and AFP.
Fanning
Declaration of war was intended to imply conflict with a particular country or countries. The president, as commander in chief, can approve armed conflict against pirates, thieves, or others not under control of a government. The principle of declared war was inspired by hope that simply declaring war would cause an enemy country to pause or cease conflict. Of course this would seldom achieve the desired outcome.
The scope and anticipated duration of intrusion of US troops and hardware are at least loosely coupled with the Senate’s obligation to review and request supporting monies. If such monies are requested the House of Representatives must approve, at least tacitly, for funds to be released. The notion that service members can not lose life or limb without declaration of war is false. I suspect that declaration of war will become an anachronism as terrorism becomes the modus operandi of disenchanted groups.
The President is Commander in Chief. If the country does not disavow, by disallowing funds, by change of President in the next election, or Supreme Court mandate; conflicts authorized by the President can, and will be, allowed by command of the Commander in Chief. Note that a select committee of the Senate does review such decisions to use armed conflict. If bipartisan agreement against military action is reached in committee, the President must either provide supporting evidence for committee review, or plan for end of conflict.
AFP
Mr. Fanning, Would you please explain where in the Constitution “[t]he President, as commander in chief,” is granted the power to “approve armed conflict against pirates, thieves, or others not under control of a government”?
I agree our armed forces, specifically our Navy, can interdict pirates and felons on the high seas, but I completely disagree that they can do so within the territorial waters of the United States. This is the role the Coast Guard and local law enforcement officers fill with a different legal authority than our armed forces.
I further disagree that the President has the authority, as Commander in Chief, to “approve armed conflict” against said “pirates and thieves or others not under control of a government.” You will find the power “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;” in Article I, Section 8, Paragraph 10. To be precise, this is a power delegated to Congress, not the President.
Would you also please explain where the Constitution authorizes the following, “The scope and anticipated duration of intrusion of US troops and hardware are at least loosely coupled with the Senate’s obligation to review and request supporting monies.”
Your comment, “The notion that service members can not lose life or limb without declaration of war is false,” assumes something I did not say or imply. Although your statement is correct, you assume too much if you think my article said so. My point is that service members should not die in unconstitutional conflicts, because we should not allow our national government to get us involved in unconstitutional conflicts. By their doing so it is a violation of the rights of every citizen, our national contract and the rule of law.
Your comment, “I suspect that declaration of war will become an anachronism as terrorism becomes the modus operandi of disenchanted groups”, is correct if “We the People” keep allowing our national government to break “the supreme Law of the Land.”
Again, would you please pinpoint where the Constitution or pre-constitutional common law makes the stipulation: “The President is Commander in Chief. If the country does not disavow, by disallowing funds, by change of President in the next election, or Supreme Court mandate; conflicts authorized by the President can, and will be, allowed by command of the Commander in Chief.”
Fanning
Mr. Shipley, The President is always Commander in Chief of the military. In the event that the President deems warfare against another nation to be necessary, the President must seek approval of Congress for a declaration of war. The distinction is “Declaration of War”, and the criteria and mechanisms are well spelled out in the Constitution. What is active in conflict with Pirates or small groups, not under the authority of a government, is the attacks on our military without possibility of a declaration of war. Such attacks are not posed in US territorial waters, but in regions of the world that may well tacitly approve, but not actively support the warlike actions. Frequently those actions are aimed at commercial targets, targets that our military is charged with protecting.
The thesis that such warlike actions cannot be invoked without Congressional approval has no support in the Constitution. In fact such behavior has long been handled quite well by our navy, a fact that many pirates could have certified…if they had lived.
The notion of declared war is that of conflict between nations. The most likely conflicts now and into the future do not rise to the level of declared war, however, they do represent harm to our country and people. The notion that one could declare war against a scarcely noticeable group of terrorists is beyond belief, and would send the world into derision of the notion.
It is past time for people to understand that military conflict is changing, and the world would be less safe without military punishment of the perpetrators.
AFP
Mr. Fanning, On what foundation of fact do you derive your understanding? Just because you say something is true does not make it true. Your explanation is devoid of logic and reason connecting it to any foundation of law or fact, much less constitutional original intent and what you say is contrary to “the supreme Law of the Land”.
If you could make a logical case for your understanding by pinpointing the constitutional clause or clauses that support your argument and explaining the original intent derived from pre-constitutional common law, then people would have cause to listen to things you say.
Article II, Section 2, Clause 1 states, “The President shall be Commander in Chief of the Army and Navy,…when called into the actual Service[.]” This clause clearly refutes your claim that “The President is always Commander in Chief of the military.” It stands to reason with irrefutable logic your claim is completely false.
Furthermore, the argument you make for attacking “terrorists” within the borders of sovereign nations commits two logical fallacies. It commits the logical fallacy of equivocation, which is confusing the several meanings of a word or phrase in the context of an argument and it commits the logical fallacy of false cause, non causa pro causa, which is presuming the reality of a causal connection that does not in fact exist.
Your exposition of the Navy’s authority to interdict pirates on the high seas is accurate, but your extrapolation to terrorist groups is presumptuous. While our military always has the inherent right to defend itself and to protect that which it has been commissioned to protect, it does not have the right, even with tacit approval, to violate the sovereignty of other nations. To do so is an act of war.
Although, terrorists are not nations they must operate out of them, because there is no land on the globe that is not governed by a nation. Any nation that harbors terrorists, like those of September 11, 2001, is complicit in terrorist actions. If any nation refuses to comply with just demands for dealing with such terrorists, the US Congress is well within the Law of Nations to declare war on that nation.
Tactics may change, but true law does not. Your statement, “The most likely conflicts now and into the future do not rise to the level of declared war” has no foundation in law or fact if you are inferring the President can use the military, without Congressional approval, for belligerencies against people living or operating out of any nation.
It is past time for people to understand that violating the US Constitution only creates larger problems that always haunt future generations.
Fanning
Mr. Shipley, Your analysis of the control of our military was once appropriate. The military would be called when needed to repel an invasion. Thus the role of Commander in Chief was largely temporary. In this time in which attack on our country could be engendered with but a few hours notice, the notion of convening a military, training, and then using is utterly useless. We have a standing military precisely to reject that original thesis, and the President is Commander in Chief. He reports to a special group of Senators when calling for military action. If this group of Senators does not agree with the proposed action they may resort to full Senate action.
It is unlikely that in these times full declaration of war will be either likely or possible.
I do not agree that my analysis of the issue is flawed. I think that stated objections are based upon flawed analysis of the Constitution. I think that in modern warfare the notion of rigid application of strictures as penned in the constitution…particularly the absence of military except when called up under declaration of war is clearly evidence of a necessary extension.
As for the notion that the President is not the full time Commander in Chief, one must revert to a time when there was no full time military.
Real McCoy
Mr. Fanning, It appears to me your beliefs and emotions guide your statements more than logic and reason because your words are anchored outside of the confines of the constitution; a potentially fatal flaw most Americans possess. Although global dynamics move faster today than in centuries past the character and notion of people has remained fixed leaving the argument of constitutional inadequacies false. Regarding the threat of small groups of people intending to harm America absent national support from their host nation we would be well advised to look to Article I Section 8: To…grant letters of Marque and Reprisal,… http://en.wikipedia.org/wiki/Letter_of_marque
We must quickly return to the confines of the constitution or face the consequences of a nation run by beliefs and emotions which history shows to be mass chaos and disaster.
AFP
Mr. Fanning, The United States has nearly always had a small standing army and no one has historically questioned a President’s authority to use it in response to imminent homeland threats. So your supposition about the reason for the temporary nature of a President as CinC is false and therefore your entire argument, based on this supposition, is also false. Furthermore, the fact that a President is only CinC when the armed forces are called into actual service is not a notion, it is the law.
You seem to be confusing scenarios. Make no mistake, if the US is attacked, we need no declaration of war to respond, but this has no relation to a President ordering aggressive action, without Congressional approval, against another nation or people living within a nation.
The President conferring with a small group of Senators to determine military action is called an aristocracy and it provides no protection against abusive use of America’s military or financial resources.
Of course you don’t agree that your analysis of the issue is flawed and that my interpretation of the Constitution is to blame, but again you give no support for your argument other than what you believe.
I respect that you firmly believe what you wrote, but your beliefs are not the foundation of law or fact. Law is not based on expediency or pragmatism and just because one or more people break the law and get away it, does not mean what they have done becomes legal.
Lonni
The question isn’t “when is the President Commander-in-Chief”; it’s “when does the President have the authority to activate his status as Commander-in-Chief”. As is stated, the President is CinC when the Services are called to action. Military Services are always, as in 24/7/365, “active-duty status”. Not only that but service-members are continually being “called up” in Recruitment Centers around the United States and it’s subsidiaries. Military recruitment is required under the National Security and Defense Amendment, which, in turn, is authorized by the Constitution in accordance with the phrase “to provide for the common defense” as stated in the Preamble to the Constitution. Even though this substantiates that the President is CinC at all times, it also limits his activation of that position to the will of Congress as it is there that wars are declared or desisted and it is there that all Military Services looks to in order to fund their defense, active or passive, postures.
The chagrin of the Author of this article seems to have it’s basis on the possibility that the President will use his authority as CinC to order our Military to the streets of America in the event of Martial Law, or as is the case now, drones over America to kill specific people. It is a justifiable concern as there is always that possibility. However, once again, while the President is CinC, that does not allow him carte blanche nor a whimsical ability to order the Military about. Congress can always stop him in his tracks by defunding any manuever he is apt to take. Other than war on the streets in America there is never any justification for Troops to be patrolling our streets nor armed drones to be patrolling our skies. Yet, attaching all of this ability to the Presidents position is short-sighted. Congress still has at least as much power as he does in this matter even though, upon inauguration the President has both the authority and the power to command the Military as CinC according to Article Two of the Constitution.
AFP
Lonni, I appreciate you are trying to make an argument based on more than what you believe, yet your argument did not substantiate that the President is CinC at all times, because you committed the logical fallacy of equivocation. “[C]alled into actual Service of the United States” from Article II, Section 2, Clause 1 does not mean that forces are on “active duty status” or being “called up to recruitment centers”, it means, as it has always meant, that Congress authorizes military use for a specific mission or purpose like putting down the Whiskey Rebellion, fighting in the War of 1812 or the Mexican War.
If by “the National Security and Defense Amendment” you actually mean an act passed by Congress, vice amended to our Constitution, you must understand if Congress passes anything contrary to constitutional original intent it is an unconstitutional act.
“An unconstitutional act is not a law; it confers no rights; it imposes no duties…; it is, in legal contemplation, as inoperative as though it had never been passed.” (Norton v. Shelby County, 118 U.S. 425, 442 (1886))
You are also mistaken on the intended meaning of my article. I am concerned about seeing our military personnel thrust into conflict not sanctioned by “the supreme Law of the Land” no matter what country happens to be the target.
Lonni
Mr. Shipley, Thank you for responding. However, I still disagree with your synopsis of the powers of the CinC and when they are in effect. Being in the Military during the Viet Nam War, I was well aware that the President was the CinC even though, being a woman, I was stationed Stateside. Even though the War was never declared by Congress, President Nixon cited his Authority under Article two as the basis for such declaration. Your complaint…..that the President can claim authority under the Constitution and make unilateral Military decisions is admirable, if ill-advised. Even though President Nixon claimed authority, the war itself was authorized during the Johnson Administration, under “The Tonkin Gulf Resolution” (1964). With this Resolution the war was justified. It was repealed in 1971, yet Nixon continued it under his Constitutional Authority as CinC and was not thwarted by Congress. The wars following, ie, Afghanistan/Iraq, have been under Congressional purview. So, either by Resolution or Congressional Approval, the President can claim authority to commit to War. Not only that but International Law approves the use of force in defending our allies at any time, which precludes the President to be in an on-going status as CinC and our Military being continually “at the ready”.
So your contention that the President is only CinC during a Congressionally-approved War, while well-intended, lacks the other possibilities in which war can be conducted, which, in turn allows the President to claim authority under the Constitution. Obama couldn’t have sent drones over Pakistan or any other place if Congress had not approved the funding, thereby lending tacit approval of the action. Whether he is considered to be CinC(and he is)under such circumstances or not, he is still acting under that same authority and Congress is still allowing it. Once the “War on Terror” was declared under the Bush Administration, our war-footing became static as there is no ending in sight. Obviously, Obama continues to support the “War on Terror” in every way he can that suits his political aspirations and supports his ideologies. Which proves it is not unilateral because Congress continues to support efforts to combat it, leaving Obama, and further US Presidents in a contant position as Commander-in-Chief. Our only recourse is to end the War on Terror. That will not happen. So, under the Constitution or under Resolution we are at War, which makes the question of “When is the President Commander-in-Chief” superflous.
AFP
Lonni, I have made an assertion, not a complaint and you may disagree with my “synopsis”, but you have not made a logical constitutional argument against it. From everything you have written, it seems you are more concerned with supporting your personal position then you are with supporting the Constitution.
Personally, I don’t have a problem with Presidents being CinC of the active duty armed forces at all times as long they do not use the military without Congressional approval. Sadly that will not happen. Human nature being what it is; no one should trust any of them with that power and the temptation to use the military as a political tool. But, even this argument is irrelevant if it is not supported by “the supreme Law of the Land.”
You beg the question in your latest argument; you attempt to prove constitutionality based on past conduct that went without a direct indictment as to its being unconstitutional. However, unconstitutional acts of Presidents and Congress, tacitly approved or not, do not make those actions constitutional or legal. You should have compared their actions to constitutional powers, instead of blindly using them as evidence. You further cited powers in Article II, but you did not explain what powers in Article II authorized the President’s actions or how Congress’s powers in Article I were negated.
I also find it ironic you attempt to support your position by writing a case study for why Presidents should not be CinC until Congress constitutionally authorizes aggressive action. The Viet Nam War was a national fiasco politically, militarily, economically, morally, and socially. Citizens still talk about how they do not want US military involvement to turn into another “Viet Nam.” This in no way discredits those who honorably and nobly served during that time, it only points out the injustice done to them by our nationally elected officials. Those officials broke our national contract and 58,000 Americans paid for it with their lives and thousands more whose lives were never the same.
The following comment and reply was originally posted in March 2013 by Frank and AFP.
Frank
You are correct but your position is purely academic, the structure of our government has been “fundamentally transformed” long before obama, soetoro, shabazz, or whatever his name is, came on the scene.
Originally the United States was made up of sovereign common-law nation States; the “People” were citizens only in one of those common-law States. The State governments protected their God given unalienable “natural” rights. The “national” or “federal” government was created by the States to serve them as an “international law” institution, to regulate commerce, regulate the conduct of warfare, make treaties with foreign nations on behalf of the States collectively, etc. It was not founded to protect the rights of the citizens of the States.
The “international law” authority vested in the national government is a world commercial authority that does not recognize and protect rights. Articles of property in commerce do not have rights in need of protection. It only acts upon legislated positive law. This the same “alien jurisdiction” our Founders rebelled against and fought a Revolution to free us from. Accordingly, a “wall of separation” was erected between the common-law of the States and their citizens and the despotic commercial international law of the national government. The two are incompatible.
After the Civil War, an after-market counterfeit Amerika was erected on the “federal” level with the Civil Rights Act of 1866 and the 14th Amendment to accommodate the freed slaves (and subsequent statutory “minorities”). A “federal” (international law) citizenship was created for them, as they could not be admitted to citizenship in any of the States. The 14th Amendment imposed federal international law upon the States forcing them to violate their State Constitutions, breaching the “wall of separation” between them.
The 17th Amendment provided that Senators no longer be appointed by the States, the State’s veto power over their “agents” in Congress, and were to be elected by popular vote. The consequence of this Amendment is that Congress is no longer accountable to the States. Congress has disposed of its “master”. The UN Charter attached us to a “world” authority.
The Social Security Act of 1935 (“federal” legislation of an international law character) reduced the States to functioning as “Territories” administering the soviet programs of the SSA. The “America” our Founders left to us on the State level has been superseded by a “federal” counterfeit created by carpetbagger politicians. We are now regulated by the United Nations.
AFP
Frank, I want to thank you for a most accurate and outstanding dissertation on the state of our nation and how far we have fallen. I especially liked the quotations you put around federal, because there is very little to no federalism left in our ‘federal government’. Thank you for writing your response!
Please allow me to point out one minor point you made that is not completely correct. By “academic” you mean theoretical, hypothetical; not practical, realistic, or directly useful, and of course you are correct if Americans continue to allow our national government to break “the supreme Law of the Land.”
If, however, Americans unite behind our Constitution and demand every member of Congress and the President abide by constitutional original intent, then it would not be academic. My point is that “We the People” have a legal foundation and obligation to demand this from our national government.