What Became of the Declaration of War

As everyone knows, WWII is the last declared war the US has fought. Since then, we have fought wars involving 300,000 troops in Korea, 500,000 in Vietnam, and now 160,000 in Iraq, without a single declaration. Presidents have usually sought some sort of approval from Congress, but it has never been much more than a rubber stamp. Why? Why have Presidents been able to go to war without a formal declaration since 1945? I have heard several explanations, sucha as that the practice is outdated or that people are afraid of so drastic a step in the nuclear age. But I believe the main reason Presidents since 1945 have gone to war without seeking a formal declaration is simple. Because they can. The President, given a military, will use it without consulting Congress. This has been so from early on in our history, although it was not part of the original plan.

At the original Constitutional Convention, the powers given to Congress initially included the power to "make war." On August 17, one of the delegates pointed out that the legislature is a poor war-waging body. The Convention changed the word to "declare." This would leave the executive the power to repel sudden attacks. So, in all probability, the original plan was that the President should be allowed to deal with "sudden attacks," whether cross-border invasions or Indian attacks, without consulting Congress, but not to initiate wars.

It never really worked that way. Presidents regularly fought Indian wars, aggressive as well as defensive, without consulting Congress. They have been fighting undeclared overseas wars since Jefferson sent the Marines "to the shores of Tripoli." And they repeatedly intervened in Central America and the Carribean as they pleased. Congress objected to some of these adventures, but it was not able to stop them.

But before 1945 Presidents' undeclared military actions were all small-scale. They sought a declaration from Congress before starting a major war. And the reason is simple. They did not have a large enough army to start a major war without the approval of Congress. A President who wanted to wage war on any significant scale had to approach Congress, hat in hand, in order to get an army large enough to wage it. The President's power to wage war was checked, no so much by legal restrictions, as simply by a lack of resources. Since WWII, Presidents have had large peacetime armies at their disposal and, like their pre-WWII predecessors, they have used them. Only the scale has changed.