War Powers, War Lies: Part 2: Imperfect War

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War Powers, War Lies: A Series

 Part 2: Imperfect War  

 

Published in the Maryland Daily Record February 25, 2005

 

          Last time, I recounted how the Framers of our Constitution had truly believed that in Article I, Section 8, Clause 11 (which conferred upon Congress the power “to declare War”), they had committed to Congress the exclusive power to control the deployment of U.S. armed forces in armed combat.  Obviously, things have worked out very differently indeed; warmaking is usually primarily an executive decision.  So what happened? In part, the Framers had not explicitly provided for Imperfect War. 

        

          History does chronicle some early Presidential acceptance of the Congressional authority to initiate wars contemplated by the Framers.  This was right at the beginning of the history of the Republic.  President Jefferson, in his attempts to protect American shipping from the Tripolitan or Barbary pirates, did not go on full offensive until after seeking, and receiving Congressional authorization.  The words of his State of the Union address to Congress, in which he requested the authorization, are worth quoting at length: 

  Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense, [an American vessel captured by the pirates], being disabled from committing further hostilities, was liberated with its crew.  The Legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries.  I communicate all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight.[1]

  There is a similar flavor to the words of President James Buchanan, in 1858, suggesting that Congress allow him to open a Nicaraguan railway, closed by political upheaval: 

  The executive government of this country in its intercourse with foreign nations is limited to the employment of diplomacy alone.  When this fails it can proceed no further.  It can not legitimately resort to force without the direct authorization of Congress, except in resisting and repelling hostile attacks.  It would have no authority to enter the territories of Nicaragua even to prevent the destruction of the transit and protect the lives and property of our own citizens on their passage.[2]

           But times have changed since then.  As of 1970 there had been as many as 125 instances of armed action initiated by American presidents without prior formal congressional declaration of war.[3]  This list included everything from landings of small parties of Marines in various banana republics to major troop movements.  Some of the most conspicuous were listed in a 1972 law review article by Eugene Rostow:[4] they included: Commodore Perry’s expedition to Japan and those which followed it; the array of 50,000 troops in Texas during 1865 and 1866 to support our diplomatic suggestion that France withdraw from Mexico; the participation of American forces in the hostilities following the Boxer Rebellion in China in 1900 and 1902; participation in hostilities with Mexico between 1914 and 1917; various deployments and uses of force by Woodrow Wilson and Franklin Roosevelt before both World Words; and occupations of Haiti, the Dominican Republic and Nicaragua.  In all that time, by contrast, there had only been five Congressional declarations of war.[5] 

           If war was something Congress declares, and Congress didn’t declare them, then these uses of force, for all that they resembled war, were apparently not war. 

           What were they then?  Classical legal theory recognized certain deployments and uses of force with such strange names as reprisals and retorsions, in fact the Constitution even conferred upon Congress authority regarding reprisals.  These were examples of what the legal theorists of the time called “imperfect war,” i.e. war carried on without declaration, but which could legitimately be pursued without declaration.  Had the Framers directly addressed the whole question of “imperfect war,” the little matter of who controlled it would have been far clearer. 

           The first important legal test in this area was Bas v. Tingy, 4 U.S. (4 Dallas) 37, 1 L.Ed. 731 (1800).  During President John Adams’ administration, the Nation found itself in an undeclared sea war with France, in the course of which one of our merchant ships had been captured by the French, and then retaken by an American “public armed ship.”  Under a 1799 law, passed in response to the French sea war, public armed ships retaking a merchant ship captured by an “enemy” were entitled to half the value of the merchant ship and the cargo.  The owner of the merchant ship in question here challenged the applicability of the 1799 law, because, he argued, there was no declaration of war between the United States and France, and thus France could not be an “enemy.”  The owner of the public armed ship of course took the opposite view.  And the Supreme Court agreed with him. 

           Justice Bushrod Washington, speaking for the Court, refused to treat with any seriousness the contention that America and France were not at war because of the absence of a declaration.  He conceded that they were not in a condition he called “perfect” or “solemn” war.  But, he added: 

  …hostilities may subsist between two nations, more confined in its nature and extent, being limited as to places, persons, and things; and this is more properly termed imperfect war; because not solemn, and because those authorized to commit hostilities, act under special authority, and can go farther than to the extent of their commission.  Still, however, it is a public war, because it is an external contention by force between some of the members of the two nations, authorized by the legitimate powers. 

  The key words here are “authority” and “authorized,” which are used three times in this brief excerpt.  It was Justice Washington’s holding that the hostilities with France had been authorized, by Congress, through the very law under which the public armed ship was proceeding; that when Congress authorized certain ships to proceed against French shipping, it was authorizing a partial war. 

           Thus the Supreme Court’s solution to the problem here was to rely on Congressional authorization of war as a sufficient substitute for Congressional declaration of war.  The Court never directly addressed the ship-owner’s point that the Constitution speaks only of declarations of war, not of authorizations. 

            In Bas v. Tingy, the Supreme Court expanded the concept of constitutionally permissible war to include imperfect war.  In the next major test, known as The Prize Cases, 2 Black 635, 17 L.Ed. 459 (1862), the Court shrank the concept of war itself, thereby restricting the importance of Congress’ exclusive franchise to declare or (after Bas v. Tingy) authorize it.  With the outbreak of the Civil War, President Lincoln had proclaimed a blockade of the Confederate ports, and certain ships had been captured by the United States while trying to run the blockade.  The owners of the ships and their cargos had sued for their return, on the basis that Lincoln’s blockade of the Southern ports was an act of war, and Congress had declared no war.  They were right, of course; blockades are acts of war, and Congress had not declared one.  But the Supreme Court was not about to deny Lincoln his right to conduct a blockade – or any other act of war. 

           In according Lincoln his right to fight the Civil War as he pleased, the Supreme Court, through Justice Grier, started by acknowledging the obvious: that the Civil War was in fact a war.  But, added the Court, civil wars are special, in that invariably one side claims to be sovereign nation and the other contests that claim.  Since the declaration of war is a formality a sovereign nation pays only to another sovereign nation, it follows that “a civil war is never solemnly declared.” 

           The Court reinforced this analysis with two other points: that this was, in any case, a defensive war, since the South had commenced hostilities by firing on Fort Sumter, and “the President is not only authorized but bound to resist force, by force.  He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.”  Secondly, as in Bas v. Tingy, various acts of the Congress enabling the prosecution of the war amounted to a ratification which, though not in the form of a declaration of war, nonetheless satisfied any Constitutional deficiency. 

            This result was the only result the Court could have reached, because they were certainly right on the second point – that a war against the United States was raging, and no declaration was necessary for a defensive war.  But the other two points were unnecessary to reach this result, and were pregnant either with possibility or with mischief, depending on your point of view.  First, the Court was ignoring the historical fact that Lincoln had deliberately kept the Congress from convening and had refrained from consulting with Congress until two months had elapsed after Fort Sumter, and that he could in fact have sought Congressional approval of the blockade.  The Court instead gratuitously established the notion that war against non-sovereign entities need not be declared, as well as carrying the rule of Bas v. Tingy one step further, holding that Congress could after the fact enact authorizing legislation which would provide the moral equivalent of a declaration of war, which could serve to ratify what the President had already done. 

            After this, many Congressionally-unauthorized military adventures occurred.  And Congress by and large did nothing.  The courts by and large did nothing.  The emerging consensus at that point was described by scholar Robert William Russell: 

  …there was one opinion that enjoyed wide acceptance: the President could constitutionally employ American military force outside the nation as long as he did not use it to commit “acts of war.”  While the term was never precisely defined, an “act of war” in this context usually meant the use of military force against a sovereign nation without that nation’s consent and without that nation’s having declared war upon or used force against the United States.[6] 

 There are two key elements in this analysis, both of which greatly limit in number the sorts of hostilities constituting acts of war which require a declaration before they may be pursued.  The first is that war can only exist between sovereign nations: thus the civil War, against insurgents, was not covered, and by extension military action against any group not already recognized as a sovereign government, was not covered.  Secondly, to amount to war, the use of force must be unprovoked by any use of force against the United States, a position which sounds innocuous, until it is coupled with various assertions of American interests around the world, attacks against which constitute attacks against the United States, justifying Congressionally-unauthorized armed response. 

           An early instance of the latter exception – and one of the few times that Congress tried to protect its turf – was the prologue to the Mexican American War.  When the United States annexed Texas in 1845, it thereby claimed all territory as far south as the Rio Grande.  President Polk directed General Zachary Taylor to occupy Texas and treat any Mexican incursion north of the Rio Grande as an invasion, upon which he could enter Mexican territory in pursuit of invaders.  Taylor did as he was told, and there were two skirmishes before full-scale hostilities erupted, and war was declared.  Later on, in passing a resolution thanking Taylor, Congress nonetheless stated that “the war was unnecessarily and unconstitutionally begun by the President of the United States.”[7] 

           This was the exception rather than the rule, and essentially Congress went along with each Presidential deployment of military force for generations, as each came in some fashion within one of the exceptions summarized by Russell: either the enemy was not a sovereign, or the action could in some way be justified as a response to an attack on United States interests. 

           The Framers would already have been spinning in their graves.  But worse was to come. 


[1]              First Annual Message to Congress, December 8, 1801, 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, 326-27 (ed. J. Richardson 1898). 

[2]              Second Annual Message to Congress, December 6, 1858, 5 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1897, 516 (ed. J. Richardson 1898). 

[3]          Davi v. Laird, 318 F.Supp. 478, 480-81 (W.D. Va. 1970). 

[4]             E. Rostow, Great Cases Make Bad Law: The War Powers Act, 50 TEX.L.REV. 833 (1972). 

[5]              See, Note: Congress, the President, and the Power to Commit Forces to Combat, 81 HARV.L.REV. 1771, 1786 n. 81 (1968).  These wars were the War of 1812, the Mexican-American War, the Spanish-American War, and World Wars One and Two. 

[6]            R. Russell, The United States Congress and the Power to Use Military Force Abroad (Ph.D. Thesis, Fletcher School of Law and Diplomacy, 1967), quoted in, G. Gunther, CASES AND MATERIALS ON CONSTITUTIONAL LAW 437 (9th ed. 1975). 

[7]           CONG. GLOBE, 30th Cong., 1st Sess. 95, 343-44 (1846), cited in, Note, 81 HARV.L.REV. at 1780, which is the source for this part of the discussion. 

Copyright (c) Jack L. B. Gohn

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