[Deschler's Precedents] [From the U.S. Government Printing Office via GPO Access] [DOCID:52093c13_txt-6] [Page 1792-1794] CHAPTER 13 Powers and Prerogatives of the House B. WAR POWERS Sec. 5. Declarations of War Article I, section 8, clause 11 of the Constitution authorizes Congress to declare war. Granting Congress this authority and making the President the Commander in Chief of the Army and Navy represents a compromise between the views of delegates to the Constitutional Convention who wanted to grant Congress authority to ``make'' war and delegates who wanted to grant such authority to the President alone, the Senate [[Page 1793]] alone, or the President and Senate together.(14~) --------------------------------------------------------------------------- 14. Constitution of the United States of America: Analysis and Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., p. 325 (1973). Delegates Madison and Gerry, who introduced the amendment substituting ``declare war'' in place of ``make war,'' which appeared in an early draft of the Constitution, noted that the change would, ``leav[e] to the Executive the power to repel sudden attacks.'' 2 M. Farrand, The Records of the Constitutional Convention of 1787 (New Haven: rev. ed. 1937) 318; and Constitution of the United States of America: Analysis and Interpretation, S. Doc. No. 92-82, 92d Cong. 2d Sess., n. 9, p. 326 (1973). --------------------------------------------------------------------------- All declarations of war since 1936 have been made by adoption of joint resolutions approved by the President.(15~) Either House may originate a joint resolution to declare war. In all cases during this period, the House suspended the rules and promptly agreed to these joint resolutions. --------------------------------------------------------------------------- 15. See 4 Hinds' Precedents Sec. 3368; and 7 Cannon's Precedents Sec. 1038 for earlier precedents relating to declarations of war on Spain and Germany, respectively. --------------------------------------------------------------------------- The provision of the House rules which requires that matters reported by committees not be considered in the House until the third calendar day on which the report has been available to Members does not apply to declarations of war.(16) --------------------------------------------------------------------------- 16 Rule XI clause 27(d)(4)(A), House Rules and Manual Sec. 735(d)(4) (1973). --------------------------------------------------------------------------- The House Committee on Foreign Affairs has jurisdiction over legislation declaring war.(l7) --------------------------------------------------------------------------- 17. Rule XI clause 7(f), House Rules and Manual Sec. 689 (1973). --------------------------------------------------------------------------- Despite the constitutional provision authorizing Congress to declare war, American forces have been committed to protracted land wars in Korea and Indochina in the absence of such declarations. After North Korea attacked South Korea in June of 1950, the President without consulting Congress ordered air and sea forces to respond. He committed ground troops when the United Nations Security Council requested assistance from United Nations members. Although the President never requested a declaration of war, he proclaimed the existence of a national emergency in December of 1950, six months after the outbreak of hostilities.(1) Congressional acquiescence in the American involvement in the Indochina war was originally found in the Gulf of Tonkin Resolution approved by the House and Senate in August of 1964.(2) Following express repeal of this resolution in January of 1971, Congress in most instances (3~) approved au [[Page 1794]] thorizations and appropriations to support troops in the field. The Second Circuit Court of Appeals, applying the test ``whether there is any action by the Congress sufficient to authorize or ratify the military activity'' in Vietnam in the absence of a declaration of war or express statutory sanction, held that congressional authorization could be implied from approval of legislation to furnish manpower and materials of war.(4) The court observed that. ``. . . neither the language nor the purpose underlying that provision [the declaration clause] prohibits an inference of the fact of authorization from such legislative action as we have in this instance'' (5) --------------------------------------------------------------------------- 1. See Sec. 12.1, infra, for the text of this proclamation. 2. See Sec. Sec. 8.1, 8.2, infra, for discussion of this resolution. 3. See the precedents in Sec. 10, infra, for restrictions on use of forces. 4. Orlando v Laird, 443 F2d 1039 (1973), cert. denied, 404 U.S. 869. Accord, Da Costa v Laird, 448 F2d 1369 (2d Cir. 1971). Contra, Mottola v Nixon, 318 F Supp 538 (N.D. Calif. 1970), reversed for lack of standing, 464 F2d 26 (9th Cir. 1972). The Supreme Court summarily affirmed a decision of a three judge district court dismissing a challenge to the constitutionality of the war on political question grounds. Attlee v Richardson, 411 U.S. 911 (1973), aff'g., 347 F Supp 689 (D.D.Pa. 1972). 5. Orlando v Laird, supra, at p. 1043. Section 8 of the War Powers Resolution (see Sec. 4.1, supra, for the text) which states that authority to introduce armed forces cannot be inferred from any provision of law or treaty unless sanction is expressly stated was drafted as a direct result of Orlando v Laird. See S. Rept. No. 220, 93d Cong. 1st Sess., at 25 (1973). --------------------------------------------------------------------------- Congress on several occasions has empowered the President to introduce United States Armed Forces into hostilities by specific statutory authorization short of formal declaration of war.(6) --------------------------------------------------------------------------- 6. See Sec. 8, infra. ---------------------------------------------------------------------------