Declare War Clause

"And, as Professor Saikrishna Prakash has demonstrated, eighteenth-century diplomatic and personal correspondence commonly referred to wars “declared” by hostile action. Thus the clause most likely referred to wars “declared” by attacks as well as by formal announcements.

This reading of the clause resolves the difficulties suggested above. Giving Congress the power to declare wars by word or action makes sense in the context of founding-era fears that the President would involve the nation in needless conflicts. It further explains why leading framers described the clause as an important limit on presidential war-initiation and why in post-ratification conflicts the President was understood to be so limited.

This reading also confirms a number of situations in which independent presidential actions are thought to be constitutionally permitted. The President (without Congress’s approval) cannot take actions that put the United States in a state of war – most obviously, military attacks on a foreign nation.. But the clause does not bar presidential actions that do not put the United States in a state of war. Thus, for example, peacekeeping deployments and defensive deployments do not create a state of war. Similarly, rescue missions and other acts to protect U.S. citizens abroad may not create a state of war if they do not involve direct confrontation with foreign governments. It is important to note, however, that the eighteenth-century definition of “war” included low-level hostilities as well as total or full-scale conflict. Samuel Johnson’s 1755 dictionary defined war as “the exercise of violence under sovereign command.” Thus, limited hostilities with foreign nations, even if the United States is not fully engaged, would seem to require Congress’s approval."