The Korean War gave the president the power to take us into battle. It’s been that way ever since.
A 60-year tradition that goes against the Constitution
At first glance, our ongoing combat operations in Afghanistan and the growing tensions with North Korea might not have anything in common. One is a decade and a half-long part of the “global war on terror,” the other a response to a burgeoning autocratic nuclear power. But what they do share is a common historical root: combat actions that aren’t officially declared wars. In fact, Congress hasn’t officially declared a war since World War II. Our engagement in Korea, officially dubbed a “police action”, set a precedent that’s lasted to the present day. In many ways, it was the first version of what we now think of as war.
The Constitutional scholar Louis Fisher states it outright: “President Harry Truman’s commitment of U.S. troops to Korea in June 1950 still stands as the single most important precedent for the executive use of military force without congressional authority.” From 1905 until after World War II, the Korean Peninsula was occupied by Japan. With the end of World War II Korea was split between North and South, with the Soviet Union occupying the North and American forces occupying the South. In 1950, at the behest of Stalin, the North launched a full scale invasion of the South.
It didn’t seem like America would intervene at first. Combat troops had been removed the previous year and then-Secretary of State Dean Acheson had failed to mention Korea in a recent speech he’d given about America’s “security perimeter.” But as North Korean troops closed in on the city of Seoul, Truman ordered Navy and Air Force elements to intervene. Three days later he approved ground troops. When Truman asked Senator Tom Connally whether he would be able to order troops into combat without prior Congressional approval, the Senator answered, “If a burglar breaks into your house you can shoot him without going down to the police station to ask for permission. You might run into a long debate in Congress which would tie your hands completely. You have the right to do it as Commander-in-Chief and under the UN charter.”
And the rest is history. Our involvement in Korea turned into a bloody three-year war — euphemistically dubbed a “police action” — and Congress has never declared war since. As the journalist and activist Paul W. Lovinger writes, “Truman took his action without asking Congress for a declaration of war, contrary to what his predecessor, Franklin D. Roosevelt, had done on December 8, 1941. Truman said a United Nations resolution gave him authority. But he had ordered armed forces to Korea before the U.N. acted. Moreover, the U.S. never made any agreement with the U.N. to provide armed forces. And anyway, how could Congress delegate away its lawful authority?”
The Constitution is pretty explicit about how wars should be declared. Congress, and not the President, should decide when and where we go to war. Article I section 8 of the Constitution enumerates the rights and responsibilities of the Legislature and, sure enough, among these are “To declare war.” Which means, in spirit, to initiate war. As Alexander Hamilton noted in The Federalist Papers, the president is “nothing more than … first General and Admiral.” Meaning that the President’s role is to conduct the wars that Congress declares.
The main reason why the President shouldn’t have the power to unilaterally wage war is probably pretty obvious: It’s too important a decision to be placed in the hands of a single person. Congress, being the most representative body, better represents the will of the governed. But writer and theorist George Friedman points out another important reason, that “by providing for a specific path to war, [the constitution] provides the president power and legitimacy he would not have without that declaration; it both restrains the president and empowers him. Not only does it make his position as commander in chief unassailable by authorizing military action, it creates shared responsibility for war. A declaration of war informs the public of the burdens they will have to bear by leaving no doubt that Congress has decided on a new order — war — with how each member of Congress voted made known to the public.”
That we haven’t had a formally declared war since World War II is often defended by saying that declarations of war require a formality that simply doesn’t exist in our current international climate. When President George W. Bush signed the 2001 Authorization for the Use of Military Force into effect (after it was approved by both houses of congress), it couldn’t have been a formal declaration because our enemies weren’t countries but instead nebulous political entities which required a certain amount of political flexibility on our part in order to face. That might have been true at the time, but as we’ve subsequently seen, the same 2001 AUMF, which was voted on and approved on the same day without much, if any debate, has morphed into a catch-all excuse for a military sprawl that includes almost the entire Middle East and parts of Africa. Jack Goldsmith and Matthew Waxman categorize the current AUMF as an example of “executive unilateralism,” a boon for the executive in that it grants seemingly unending and nebulous powers and is convenient for congress because they avoid serious public debates.
In other words, it represents the very thing that the Constitution was structured in order to avoid, finding its modern antecedent in Truman’s Korean “police action.” Far from being outmoded in our contemporary world of nuclear powers and nonstate actors, formal declarations of war serve to hold Congress and the president responsible for the decision to engage in combat equally and unambiguously. It signals to American citizens that their country is engaged in combat, and so certain sacrifices will be asked of them. And, perhaps most importantly, it grants the president the explicit legal authority to use American troops to kill people, with the moral burden of those actions being born by all of our society collectively. Simply put, it shouldn’t be easy or a matter of course to send American troops into harm’s way, and by employing a rigorous political process to waging war there’s a greater hope that combat will be restrained or even avoided. As Friedman puts it, “A declaration of war both frees and restraints the president, as it was meant to do.”
