Advancing a Free Society

Krauthammer on War Powers

Friday, June 24, 2011

Charles Krauthammer today argues for “a new constitutional understanding, mutually agreed to by both political branches, that translates the war-declaration power into a more modern equivalent.”  I usually like Krauthammer’s columns but I am not sure this one makes much sense.

The new understanding that Krauthammer proposes has three parts.

First, we should “formalize the recent tradition of resolutions (Gulf, Afghanistan, Iraq) authorizing the initiation of war, recognizing them as the functional equivalent of a declaration of war.”  Krauthammer is right that declarations of war are “archaic and obsolete.”  They became obsolete after World War II with the establishment of the U.N. system.  But he is wrong to think that there is something new or constitutionally suspect about Congress authorizing war without a declaration.  To the contrary, Congress long used authorizations rather than declarations to approve war and trigger the Commander in Chief’s war powers.  In fact, in all five of the declared wars in U.S. history, Congress not only declared war but also additionally and separately authorized the Commander in Chief to use force against the enemy.  (See pp. 2062-64 of this article).  Declarations of war once served an international law function that is now obsolete.  But they have never served the function of providing congressional authorization for the President to use military force.  Instead, congressional authorizations of the type used in the AUMF and the Iraq wars have always served that function. There is thus no need for a new constitutional understanding.  What Krauthammer has in mind here is the old constitutional understanding applied in a world in which war declarations are things of the past.

Continue reading Jack Goldsmith at Lawfare