Congress Is Not Required To “Declare War”

August 22nd, 2015

In The Atlantic, Garrett Epps writes a strong piece explaining that Congress has fallen on its duty for refusing to vote on the President’s use of military action against ISIS. I agree wholeheartedly that to avoid the political blowback, Congress has ceded its power over the use of force. But I take one, small exception with Garrett’s article. He writes:

There is a way that the government could explain itself; indeed, the government is required to do that by Article I of the Constitution, which assigns to Congress the power to “declare war.”

Garrett emphasized “required” in the original. That is not correct. Congress isn’t required to do (nearly) anything.

Article I, Section 8 provides that “The Congress shall have power . . . to declare war.” Congress has the power, but they need not use it. It is discretionary. If Congress doesn’t declare war, that means the President must stop engaging in war. (We can discuss elsewhere whether POTUS already has the authority under the 2001 or 2002 AUMFs).

I discuss the fact that Congress really doesn’t have any affirmative obligations in this article:

Our Constitution strikes a stark asymmetry with respect to the duties and obligations of Congress and the President. In Article I, Congress bears no affirmative duties.21 “Congress shall have Power” to make a number of laws,22 but need not do so. The only duties Congress owes to the other branches concern compensation for the President and federal judges—these commands appear in Article II23 and Article III,24 not in Article I.25 This structure reflects the framers’ design that the Congress need not, and indeed cannot, act unless majorities of the House and Senate agree.

Article II operates in a diametrically opposite manner on the unitary executive. While congressional power is bound in discretion and agreement, the Executive power bears heavy responsibilities. This philosophy is embodied in the constitutional duty to “take Care that the Laws be faithfully executed.”26 Section I vests the office of the Presidency and determines how he is elected.27 Section II grants the President a number of authorities.28 Virtually all of these duties are prefaced by shall: “shall be Commander-in-Chief” and “shall have Power to grant Reprieves and Pardons.”29 Several of the key “shall” duties may only be exercised “by and with the Advice and Consent of the Senate,” such as the power to “make Treaties,” and “nominate” ambassadors, ministers, judges, and officers of the United States.30

The Constitution does not simply vest the President with powers concerning his own office, but imposes a duty on the President to execute the laws of Congress with Specifically, Article II, Section III defines the scope of the President’s affirmative obligations toward Congress. First, the President “shall from time to time give to the Congress Information of the State of the Union.”32 This is a duty the President cannot shirk; Congress must be apprised of the state of the nation to inform its governance.33 Second, the President “shall receive Ambassadors and other public Ministers.”34 He must engage with this aspect of foreign diplomacy, which limits what is sometimes viewed as an unfettered power over foreign affairs. Third, the President “shall Commission all the Officers of the United States.”35 The President has an obligation to commission officers for whatever positions Congress creates. Fourth, “on extraordinary Occasions,” the President “may”—not must—“adjourn” or “convene” Congress.36 Indeed, so as not to unduly infringe on the separation of powers, the Framers limited that responsibility to circumstances where the President “shall think [it] proper,” rather than at his whim.37