"Yesterday, December 7th, 1941, a date that will live in infamy, the United States of America was suddenly and deliberately attacked by naval and air forces of the empire of Japan. ... I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7th, a state of war has existed between the United States and the Japanese Empire."
Anybody remember that? I do. My parents and I listened to President Franklin Delano Roosevelt speak those words on a small RCA Victor table radio on our kitchen table, on December 8, 1941. I was eight years old, but I can still hear those words, words which embarked the United States on the terrible and ultimately victorious voyage that was World War II. For the record, the Congress immediately and unanimously voted and issued the requested Declaration of War.
That was the last official Declaration of War issued by any Congress of the United States. Since then we have engaged in ten wars, not all of which were called wars--like Harry Truman's Korean "police action"--but all involved the U.S. military in a deadly shooting conflict against a designated enemy. When you go into another country, on ground or in the air, and kill people toward a geopolitical end, in my book that's a war. The ten, according to my memory, were/are Korea, Vietnam, Grenada, Somalia, Panama, Iraq 1, Kosovo, Afghanistan, Iraq 2 and Libya. None was accorded a Congressional Declaration of War.
The U.S. Constitution explicitly states in Article One, Section Eight, that "Congress shall have the power .... to declare war." No mention is made of the President having like authority. The purpose of this requirement, of course, is to put the imprimatur of the citizenry, via its representatives as opposed to a single individual, whose sons and daughters will be placed in harm's way, on this fateful decision. It also empowers the Commander in Chief to employ the military with the full authority of the country behind him or her.
All U.S. wars prior to Korea were sanctioned by a Congressional Declaration of War. President Truman broke that precedent by entering the Korean conflict under the disingenuous cover of a "police action" authorized by the United Nations, one which cost 54,000 American lives and over a million total dead. Since then, no American president has seen fit to request the Constitutionally-required formal Declaration of War.
During the Cold War, President Richard Nixon asserted the authority to initiate hostilities without the prior approval of Congress, using the necessity for an immediate retaliatory response to a nuclear attack as justification. In response to this and quite likely also Vietnam, Congress passed the War Powers Act, which limited the power of Presidents to engage the U.S. in hostilities without Congressional approval or Declaration of War under the aegis of the United Nations or other specious justification.
It stated that the President could initiate hostilities only upon the approval of Congress except in the case of a national emergency created by an attack on the U.S. In that event, the President had to notify Congress within 48 hours of initiating the armed response and that the commitment of armed forces was limited to 60 days without specific Congressional authorization or Declaration of War. Nixon vetoed the War Powers Act as an infringment on presidential powers but the veto was overridden. The Act stretches the Constitution by not requiring a formal Declaration of War. In fact, it likely is unconstitutional since it changes a specific Constitutional requirement by simple legislation rather than the prescribed amendment process.
President Lyndon Baines Johnson had previously stretched the Constitution by using the Gulf of Tonkin incident where, in August of 1964, North Vietnamese patrol boats attacked a U.S. destroyer, to initiate an armed response. No casualties were inflicted but LBJ nevertheless petitioned Congress for authorization to respond to this specific incident, which was granted. The eventual result was, as we know, the six-year Vietnam War which cost 58,000 American lives and the lives of millions of Vietnamese. There was no Declaration of War and no specific authorization for extended hostilities. (Congress did fund the war, which I suppose could be considered de facto authorization if you're desperate for a justification.)
Precedent being established for going to war without a formal declaration, all Presidents since then have engaged in foreign wars under the War Powers Act, seeking only Congressional authorization--in many cases after the fact. Until now.
President Obama committed U.S. military forces to armed action in Libya against the government forces of Col. Muammar Muhammad al-Gaddafi without the benefit of any Congressional action, and it is even in doubt that Congress was notified of the action either prior to or within 48 hours. Also, it should be noted that the 48-hour delay is intended solely to allow the President to respond to an attack or impending attack without delay. The Libyan intervention was hardly in that category.
It is rumored--I cannot verify this, although I tend to believe it--that Secretary of State Hillary Clinton replied to a reporter's question with a statement to the effect that the administration did not need Congressional authorization and that as Commander-in-Chief, President Obama could do whatever he wished. Apparently, UN Security Council authorization was all that was necessary for the U.S. to go to war.
So now, the U.S. Constitution, even as unconstitutionally (probably) modified by the War Powers Resolution, is irrelevent to this administration. It was stretched unrecognizably by previous administrations, but this is the first time even the stretched version has been ignored in favor of a United Nations resolution.
Ask yourself what is the supreme law of the land in these United States? Is it the U.S. Constitution or the United Nations?
The frog is boiled.