What is Congress Good For? Not Declaring War

Posted: January 16th, 2018

By Robert J. Eatinger, Jr.

Bob has 35 years of experience practicing law in the fields of national security, intelligence, and international law. He is a solo practitioner at Robert J. Eatinger, Jr., PLLC, practicing federal law with a national security and intelligence law focus and the founding Principal of SpyLaw Consulting, LLC. Bob retired from the Central Intelligence Agency in 2015 where he was the Senior Deputy General Counsel. He served as CIA’s Acting General Counsel from October 2013 to March 2014. Before being named the Senior Deputy General Counsel, Bob had held senior operational law positions and been chief of CIA’s litigation division. Bob also served on active duty in the United States Navy, Judge Advocate General’s Corps, and retired in 2013 as a Captain with 30 years of combined active and reserve service.

The framers of the U.S. Constitution decided 230 years ago to divide the nation’s war powers between the president and the Congress, making the president the commander in chief of the armed forces and giving the lawmakers the exclusive power to declare war. Yet, as 2018 gets underway, the executive branch continues a multiyear military campaign against ISIS, even though the Congress has not exercised its power to declare war against that target. An examination of James Madison’s notes of the debates during the 1787 Constitutional Convention provides valuable guidance as to whether the two branches of government are abiding by our framers’ intent.

While historical papers provide a range of resources on the subject, Madison’s notes (full text at bottom) are perhaps the best reference to learn of the framers’ purpose in giving some war powers to the president and some to the Congress. In the late summer of 1787, the delegates to the convention went clause-by-clause through a proposed constitution drafted by the Committee of Detail. On Friday, Aug. 17, 1787, the delegates debated the clause in the proposed constitution that gave the legislative branch the power “to make war.”

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