Declaration of war by the United States

A declaration of war is a formal declaration issued by a national government indicating that a state of war exists between that nation and another. A document by the Federation of American Scientists gives an extensive listing and summary of statutes which are automatically engaged upon the United States declaring war.[1]

United States President Franklin D. Roosevelt signs the declaration of war against Japan on December 8, 1941

For the United States, Article One, Section Eight of the Constitution says "Congress shall have power to ... declare War." However, that passage provides no specific format for what form legislation must have in order to be considered a "declaration of war" nor does the Constitution itself use this term. In the courts, the United States Court of Appeals for the First Circuit, in Doe v. Bush, said: "[T]he text of the October Resolution itself spells out justifications for a war and frames itself as an 'authorization' of such a war."[2] in effect saying an authorization suffices for declaration and what some may view as a formal Congressional "Declaration of War" was not required by the Constitution.

The last time the United States formally declared war, using specific terminology, on any nation was in 1942, when war was declared against Axis-allied Hungary, Bulgaria, and Romania, because President Franklin Roosevelt thought it was improper to engage in hostilities against a country without a formal declaration of war. Since then, every American president has used military force without a declaration of war.[3]

This article will use the term "formal declaration of war" to mean Congressional legislation that uses the phrase "declaration of war" in the title. Elsewhere, this article will use the terms "authorized by Congress," "funded by Congress" or "undeclared war" to describe other such conflicts.

History

The United States has formally declared war against foreign nations five separate times, each upon prior request by the President of the United States. Four of those five declarations came after hostilities had begun.[4] James Madison reported that in the Federal Convention of 1787, the phrase "make war" was changed to "declare war" in order to leave to the Executive the power to repel sudden attacks but not to commence war without the explicit approval of Congress.[5] Debate continues as to the legal extent of the President's authority in this regard. Public opposition to American involvement in foreign wars, particularly during the 1930s, was expressed as support for a Constitutional Amendment that would require a national referendum on a declaration of war.[6] Several Constitutional Amendments, such as the Ludlow Amendment, have been proposed that would require a national referendum on a declaration of war.

After Congress repealed the Gulf of Tonkin Resolution in January 1971 and President Richard Nixon continued to wage war in Vietnam, Congress passed the War Powers Resolution (Pub.L. 93–148) over the veto of Nixon in an attempt to rein in some of the president's claimed powers. The War Powers Resolution proscribes the only power of the president to wage war which is recognized by Congress.[7]

Declarations of war

Formal

The table below lists the five wars in which the United States has formally declared war against eleven foreign nations.[8] The only country against which the United States has declared war more than once is Germany, against which the United States has declared war twice (though a case could be made for Hungary as a successor state to Austria-Hungary).

In World War II, the Japanese attacked Pearl Harbor on December 7, 1941. Germany and Italy, led respectively by Adolf Hitler and Benito Mussolini, declared war on the United States, and the U.S. Congress responded in kind.[9][10]

War	Declaration	Opponent(s)	Date of declaration	Votes		President	Result
War	Declaration	Opponent(s)	Date of declaration	Senate	House	President	Result
War of 1812	Declaration of War upon the U.K.	United Kingdom	June 18, 1812	19–13	79–49	James Madison	Treaty of Ghent (December 24, 1814)
Mexican–American War	"An Act providing for the Prosecution of the existing War between the United States and the Republic of Mexico."[11]	Mexico	May 13, 1846	40–2	173–14	James K. Polk	Treaty of Guadalupe Hidalgo (February 2, 1848)
Spanish–American War	Declaration of War upon Spain	Spain	April 25, 1898	42–35	310–6	William McKinley	Treaty of Paris (December 10, 1898)
World War I	Declaration of War upon Germany	Germany	April 6, 1917	82–6	373–50	Woodrow Wilson	Knox–Porter Resolution (July 1921) Treaty of Berlin (August 25, 1921)
World War I	Declaration of War upon Austria-Hungary[12][13]	Austria-Hungary	December 7, 1917	74–0	365–1	Woodrow Wilson	1921 U.S.–Austrian Peace Treaty (August 24, 1921), 1921 U.S.–Hungarian Peace Treaty (August 29, 1921)
World War II	Declaration of War upon Japan	Japan	December 8, 1941	82–0	388–1	Franklin D. Roosevelt	Surrender of Japan V-J Day, Japanese Instrument of Surrender (September 2, 1945), Treaty of San Francisco (September 8, 1951)
	Declaration of War upon Germany	Germany	December 11, 1941	88–0	393–0		German Instrument of Surrender (May 8, 1945), V-E Day, Treaty on the Final Settlement with Respect to Germany (September 12, 1990), Treaty of Vienna with Austria (May 15, 1955)
	Declaration of War upon Italy	Italy	December 11, 1941	90–0	399–0		Armistice_of_Cassibile (3 September 1943) Treaty of Peace with Italy, 1947 Paris Peace Treaties (February 10, 1947)
	Declaration of War upon Bulgaria	Bulgaria	June 5, 1942	73–0	357–0
	Declaration of War upon Hungary[12][14]	Hungary			360–0
	Declaration of War upon Romania[12][15]	Romania			361–0

Undeclared wars

Military engagements authorized by Congress

In other instances, the United States has engaged in extended military combat that was authorized by Congress.

War or conflict	Opponent(s)	Initial authorization	Votes		President	Result
War or conflict	Opponent(s)	Initial authorization	Senate	House	President	Result
Quasi-War	France	An Act further to protect the commerce of the United States July 9, 1798	18–4		John Adams	Treaty of Mortefontaine
First Barbary War	Morocco Tripolitania	"An Act for the Protection of the Commerce and Seamen of the United States, Against the Tripolitan Cruisers", 2 Stat. 129, February 6, 1802[16]			Thomas Jefferson	War ended 1805
Second Barbary War	Algiers	"An Act for the protection of the commerce of the United States against the Algerine cruisers", 3 Stat. 230, May 10, 1815[17]			James Madison	War ended 1816
Enforcing 1808 slave trade ban; naval squadron sent to African waters to apprehend illegal slave traders	Slave traders and pirates	"Act in addition to the acts prohibiting the Slave Trade", 3 Stat. 532, 1819			James Monroe	1822 first African-American settlement founded in Liberia, 1823 U.S. Navy stops anti-trafficking patrols
Redress for attack on U.S. Navy's USS Water Witch	Paraguay	1858.[18]			James Buchanan
Mexican Revolution United States occupation of Veracruz	Mexico	H.J.R. 251, 38 Stat. 770 April 22, 1914[19]		337–37	Woodrow Wilson	Force withdrawn after six months. However, the Joint Resolution was likely used to authorize the Pancho Villa Expedition. In the Senate, "when word reached the Senate that the invasion had gone forward before the use-of-force resolution had been approved, Republicans reacted angrily" saying it was a violation of the Constitution, but eventually after the action had already started, a resolution was passed after the action to "justify" it since Senators did not think it was a declaration of war.[20][21]
Russian Civil War Allied intervention in the Russian Civil War	Commune of Estonia Far Eastern Republic Latvia Mongolian People's Party Russia Ukraine	1918[22]			Woodrow Wilson
Lebanon crisis of 1958	Lebanese Opposition Al-Mourabitoun Lebanese Communist Party Progressive Socialist Party	H.J. Res. 117, Public Law 85-7, Joint Resolution "To promote peace and stability in the Middle East", March 9, 1957[23]	72–19	355–61	Dwight D. Eisenhower	U.S. forces withdrawn, October 25, 1958
Vietnam War Laotian Civil War Cambodian Civil War	Mainland China National United Front of Kampuchea Khmer Rouge Khmer Rumdo Khmer Việt Minh North Korea North Vietnam Pathet Lao South Vietnam Việt Cộng	Gulf of Tonkin Resolution, August 7, 1964	88–2	416–0	Lyndon B. Johnson	U.S. forces withdrawn under terms of the Paris Peace Accords signed January 27, 1973
Multinational Force in Lebanon	Shia and Druze militias; Syria	S.J.Res. 159 Pub.L. 98–119 September 29, 1983	54–46	253–156	Ronald W. Reagan	Forces withdrawn in 1984
Persian Gulf War	Iraq	H.J.Res. 77 January 12, 1991.	52–47	250–183	George H.W. Bush	The United Nations Security Council drew up terms for the cease-fire, April 3, 1991
War on Terror	Afghanistan Quetta Shura Taliban Haqqani network Mullah Dadullah Front al-Qaeda 055 Brigade Al-Nusra Front Khorasan group al-Qaeda Emirate in Yemen Aden-Abyan Islamic Army Islamic Jihad of Yemen al-Qaeda in the Arabian Peninsula Ansar al-Sharia al-Qaeda in the Indian Subcontinent Lashkar al-Zil Harakat Ahrar al-Sham al-Islamiyya Hezb-e Islami Gulbuddin Islamic Jihad Union Islamic Movement of Uzbekistan Jamaat-ul-Ahrar Jundallah Lashkar-e-Islam Lashkar-e-Jhangvi Tehreek-e-Nafaz-e-Shariat-e-Mohammadi Turkistan Islamic Party Tehrik-i-Taliban Pakistan High Council of the Islamic Emirate Fidai Mahaz al-Itihaad al-Islamiya Alliance for the Re-liberation of Somalia Harakat al-Shabaab Mujahedeen Hizbul Islam Islamic Courts Union Jabhatul Islamiya Mu'askar Anole Ras Kamboni Brigades Abu Sayyaf Bangsamoro Islamic Freedom Fighters Islamic State Islamic Movement of Uzbekistan Maute group Khalifa Islamiyah Mindanao	S.J. Res. 23 September 14, 2001	98–0	420–1	George W. Bush
Iraq War[24]	Iraq	H.J. Res. 114, March 3, 2003	77–23	296–132	George W. Bush	Ba'athist Iraqi government abolished April 2003, Saddam Hussein executed. War ended December 15, 2011. Destabilization of Iraq and emergence of ISIL (ISIS) in Iraq region 2014–2017.[25]

Military engagements authorized by United Nations Security Council Resolutions and funded by Congress

In many instances, the United States has engaged in extended military engagements that were authorized by United Nations Security Council Resolutions and funded by appropriations from Congress.[26]

Military engagement	Opponent(s)	Initial authorization	President	Result
Korean War	China North Korea Soviet Union	UNSCR 84, 1950	Harry S. Truman	Korean Armistice Agreement,[27] 1953
Multinational Force in Lebanon	Shia militias, Druze militias, Syria	UNSCR 425, 1978 UNSCR 426, 1978	Jimmy Carter, Ronald Reagan	U.S. forces withdrew in 1984
Persian Gulf War	Iraq	UNSCR 678, 1990	George H. W. Bush	UNSCR 689, 1991
Bosnian War	Republika Srpska	UNSCR 770, 1992 UNSCR 776, 1992 UNSCR 836, 1993	Bill Clinton	Reflagged as IFOR in 1995, Reflagged as SFOR in 1996, Completed in 2004
Second Liberian Civil War	Peacekeeping	UNSCR 1497, 2003	George W. Bush	U.S. forces are withdrawn in 2003 after the UNMIL is established.
Haitian coup d'état	Peacekeeping	UNSCR 1529, 2004 UNSCR 1542, 2004	George W. Bush	2004
First Libyan Civil War 2011 military intervention in Libya Operation Odyssey Dawn Operation Unified Protector	Libya	UNSCR 1973, 2011	Barack Obama	Debellation of the Libyan Arab Jamahiriya, October 31, 2011

Other undeclared wars

On at least 125 occasions, the President has acted without prior express military authorization from Congress.[28] These include instances in which the United States fought in the Philippine–American War from 1898–1903, in Nicaragua in 1927, as well as the NATO bombing campaign of Yugoslavia in 1999, and the 2017 missile strikes on Syria.

The United States' longest war, against the Taliban in Afghanistan, began in 2001 and is still ongoing as of 2020.

The Indian Wars comprise at least 28 conflicts and engagements. These localized conflicts, with Native Americans, began with European colonists coming to North America, long before the establishment of the United States. For the purpose of this discussion, the Indian Wars are defined as conflicts with the United States of America. They begin as one front in the American Revolutionary War in 1775 and had concluded by 1918. The United States Army still maintains a campaign streamer for Pine Ridge 1890–1891 despite opposition from certain Native American groups.[29]

The American Civil War was not an international conflict under the laws of war, because the Confederate States of America (CSA) was not a government that had been granted full diplomatic recognition as a sovereign nation by other sovereign states[30][31] or by the government of the United States.[32]

The War Powers Resolution

In 1973, following the withdrawal of most American troops from the Vietnam War, a debate emerged about the extent of presidential power in deploying troops without a declaration of war. A compromise in the debate was reached with the War Powers Resolution. This act clearly defined how many soldiers could be deployed by the President of the United States and for how long. It also required formal reports by the President to Congress regarding the status of such deployments, and limited the total amount of time that American forces could be deployed without a formal declaration of war.

Although the constitutionality of the act has never been tested, it is usually followed, most notably during the Grenada Conflict, the Panamanian Conflict, the Somalia Conflict, the Persian Gulf War, and the Iraq War. The only exception was President Clinton's use of U.S. troops in the 78-day NATO air campaign against Yugoslavia during the Kosovo War. In all other cases, the President asserted the constitutional authority to commit troops without the necessity of Congressional approval, but in each case the President received Congressional authorization that satisfied the provisions of the War Powers Act.

On March 21, 2011, a number of lawmakers expressed concern that the decision of President Barack Obama to order the U.S. military to join in attacks of Libyan air defenses and government forces exceeded his constitutional authority because the decision to authorize the attack was made without Congressional permission.[33] Obama explained his rationale in a two-page letter, stating that as commander in chief, he had constitutional authority to authorize the strikes, which would be limited in scope and duration, and necessary to prevent a humanitarian disaster in Libya.

References

Elsea, Jennifer K.; Weed, Matthew C. (April 18, 2014). "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications" (PDF). fas.org. Federation of American Scientists. Archived (PDF) from the original on November 14, 2020. Retrieved January 20, 2021.
"DOE II III IV v. BUSH, 03-1266, (March 13, 2003)". FindLaw. Archived from the original on October 29, 2020. Retrieved June 20, 2013.
Cooke, Alistair, Alistair Cooke's America, Alfred A. Knopf, New York, 1973.
Henderson, Phillip G. (2000). The presidency then and now. Rowman & Littlefield. p. 51. ISBN 978-0-8476-9739-7.
The Debates in the Federal Convention of 1787 reported by James Madison : August 17,The Avalon Project, Yale Law School, retrieved Feb 13, 2008
"Petition for a Constitutional Amendment to Hold National Referendums on Declarations of War from Danville, Ohio". The National Archives of the United States. 1938. Retrieved July 29, 2016.
Shindler, Michael (March 1, 2018). "War Powers: Return to Congress". RealClearDefense. RealClear Media Group. Retrieved March 2, 2018.
Official Declarations of War by Congress
BBC News, On This Day
Whereas the Government of Germany has formally declared war against the government and the people of the United States of America... the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared. The War Resolution Archived December 5, 2006, at the Wayback Machine
United States Congress (May 13, 1846). "An Act providing for the Prosecution of the existing War between the United States and the Republic of Mexico" (PDF). Government of the United States of America. Government of the United States of America. Archived from the original (PDF) on August 10, 2006. Retrieved August 10, 2006.
Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications
H.J.Res.169: Declaration of War with Austria-Hungary, WWI, United States Senate
Pub.L. 77–564
Pub.L. 77–565
Key Events in the Presidency of Thomas Jefferson Archived June 17, 2010, at the Wayback Machine, Miller Center of Public Affairs, University of Virginia, (retrieved on August 10, 2010).
Key Events in the Presidency of James Madison Archived June 9, 2010, at the Wayback Machine, Miller Center of Public Affairs, University of Virginia, (retrieved on August 10, 2010).
Expenses – Paraguay Expedition, House of Representatives, 36th Congress, 1st Session, Mis. Doc. No. 86 (May 11, 1860), p. 142
"Joint Resolution justifying the employment by the President of the armed forces of the United States. April 22, 1914" (PDF). Archived from the original (PDF) on October 18, 2015. Retrieved November 17, 2018.
Cyrulik, John M., A Strategic Examination of the Punitive Expedition into Mexico, 1916–1917. Fort Leavenworth, KS, 2003. (Master's thesis)
Wolfensberger, Don. Congress and Woodrow Wilson's Introductory Forays into Mexico, an Introductory Essay. Congress Project Seminar On Congress and U.S. Military Interventions Abroad. Woodrow Wilson International Center for Scholars. Monday, May 17, 2004
A History of Russia, 7th Edition, Nichlas V. Riasanovsky & Mark D. Steinberg, Oxford University Press, 2005.
Congress' Approval of the Eisenhower Doctrine 1957
Obama's full speech: Operation Iraqi Freedom is Over, NBC News
Londoño, Ernesto (August 19, 2010). "Operation Iraqi Freedom ends as last combat soldiers leave Baghdad". The Washington Post.
United Nations Participation Act, December 20, 1945 Sec. 6, The Commander in Chief and United Nations Charter Article 43: A Case of Irreconcilable Differences?, Rethinking War Powers: Congress, The President, and the United Nations
s:Korean Armistice Agreement
The President's Constitutional Authority To Conduct Military Operations Against Terrorists and Nations Supporting Them
Army Continues to Parade Wounded Knee Battle Streamer Archived May 10, 2010, at the Wayback Machine, National Congress of American Indians.
"Preventing Diplomatic Recognition of the Confederacy, 1861–1865". U.S. Department of State. Archived from the original on August 28, 2013.
McPherson, James M. (2007). This Mighty Scourge: Perspectives on the Civil War. Oxford University Press US. p. 65. ISBN 978-0-19-531366-6. confederacy recognition.
Julius Goebel (1915). The Recognition Policy of the United States. Columbia University. pp. 172–174. The Confederate States did not constitute a new state and they were not independent, hence they were not entitled to treatment by the United States as a foreign state.
Obama Attacked for No Congressional Consent on Libya, New York Times.

External links

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[1] Elsea, Jennifer K.; Weed, Matthew C. (April 18, 2014). "Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications" (PDF). fas.org. Federation of American Scientists. Archived (PDF) from the original on November 14, 2020. Retrieved January 20, 2021.

[2] "DOE II III IV v. BUSH, 03-1266, (March 13, 2003)". FindLaw. Archived from the original on October 29, 2020. Retrieved June 20, 2013.

[3] Cooke, Alistair, Alistair Cooke's America, Alfred A. Knopf, New York, 1973.

[Henderson2000-4] Henderson, Phillip G. (2000). The presidency then and now. Rowman & Littlefield. p. 51. ISBN 978-0-8476-9739-7.

[5] The Debates in the Federal Convention of 1787 reported by James Madison : August 17,The Avalon Project, Yale Law School, retrieved Feb 13, 2008

[6] "Petition for a Constitutional Amendment to Hold National Referendums on Declarations of War from Danville, Ohio". The National Archives of the United States. 1938. Retrieved July 29, 2016.

[7] Shindler, Michael (March 1, 2018). "War Powers: Return to Congress". RealClearDefense. RealClear Media Group. Retrieved March 2, 2018.

[8] Official Declarations of War by Congress

[9] BBC News, On This Day

[10] Whereas the Government of Germany has formally declared war against the government and the people of the United States of America... the state of war between the United States and the Government of Germany which has thus been thrust upon the United States is hereby formally declared. The War Resolution Archived December 5, 2006, at the Wayback Machine

[11] United States Congress (May 13, 1846). "An Act providing for the Prosecution of the existing War between the United States and the Republic of Mexico" (PDF). Government of the United States of America. Government of the United States of America. Archived from the original (PDF) on August 10, 2006. Retrieved August 10, 2006.

[fas.org-12] Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications

[13] H.J.Res.169: Declaration of War with Austria-Hungary, WWI, United States Senate

[14] Pub.L. 77–564

[15] Pub.L. 77–565

[JefforsonEvents-16] Key Events in the Presidency of Thomas Jefferson Archived June 17, 2010, at the Wayback Machine, Miller Center of Public Affairs, University of Virginia, (retrieved on August 10, 2010).

[MadisonEvents-17] Key Events in the Presidency of James Madison Archived June 9, 2010, at the Wayback Machine, Miller Center of Public Affairs, University of Virginia, (retrieved on August 10, 2010).

[18] Expenses – Paraguay Expedition, House of Representatives, 36th Congress, 1st Session, Mis. Doc. No. 86 (May 11, 1860), p. 142

[19] "Joint Resolution justifying the employment by the President of the armed forces of the United States. April 22, 1914" (PDF). Archived from the original (PDF) on October 18, 2015. Retrieved November 17, 2018.

[20] Cyrulik, John M., A Strategic Examination of the Punitive Expedition into Mexico, 1916–1917. Fort Leavenworth, KS, 2003. (Master's thesis)

[21] Wolfensberger, Don. Congress and Woodrow Wilson's Introductory Forays into Mexico, an Introductory Essay. Congress Project Seminar On Congress and U.S. Military Interventions Abroad. Woodrow Wilson International Center for Scholars. Monday, May 17, 2004

[22] A History of Russia, 7th Edition, Nichlas V. Riasanovsky & Mark D. Steinberg, Oxford University Press, 2005.

[23] Congress' Approval of the Eisenhower Doctrine 1957

[24] Obama's full speech: Operation Iraqi Freedom is Over, NBC News

[25] Londoño, Ernesto (August 19, 2010). "Operation Iraqi Freedom ends as last combat soldiers leave Baghdad". The Washington Post.

[26] United Nations Participation Act, December 20, 1945 Sec. 6, The Commander in Chief and United Nations Charter Article 43: A Case of Irreconcilable Differences?, Rethinking War Powers: Congress, The President, and the United Nations

[27] s:Korean Armistice Agreement

[28] The President's Constitutional Authority To Conduct Military Operations Against Terrorists and Nations Supporting Them

[29] Army Continues to Parade Wounded Knee Battle Streamer Archived May 10, 2010, at the Wayback Machine, National Congress of American Indians.

[history-state-gov-30] "Preventing Diplomatic Recognition of the Confederacy, 1861–1865". U.S. Department of State. Archived from the original on August 28, 2013.

[McPherson-31] McPherson, James M. (2007). This Mighty Scourge: Perspectives on the Civil War. Oxford University Press US. p. 65. ISBN 978-0-19-531366-6. confederacy recognition.

[32] Julius Goebel (1915). The Recognition Policy of the United States. Columbia University. pp. 172–174. The Confederate States did not constitute a new state and they were not independent, hence they were not entitled to treatment by the United States as a foreign state.

[33] Obama Attacked for No Congressional Consent on Libya, New York Times.