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From: berman@psuvax1.UUCP (Piotr Berman)
Newsgroups: net.politics,net.legal
Subject: Re: Making War
Message-ID: <2035@psuvax1.UUCP>
Date: Fri, 21-Mar-86 15:21:32 EST
Article-I.D.: psuvax1.2035
Posted: Fri Mar 21 15:21:32 1986
Date-Received: Sat, 22-Mar-86 22:07:55 EST
References: <1753@decwrl.DEC.COM> <106@cad.UUCP>
Organization: Pennsylvania State Univ.
Lines: 46
Xref: watmath net.politics:14083 net.legal:3149

> In article <1753@decwrl.DEC.COM>, mahoney@bartok.DEC writes:
> >
> > This fact is that the Constitutional Convention specifically took out the
> > words "make war" and changed them to "declare war" for powers of congress.
> > While giving the right to the President as Commander and Cheif the right to
> > move forces around as he saw fit.  Does this give the right to the president
> > to make war?
>
> If the president could make war as s/he saw fit, then the power of the
> congress to "declare" war would be an empty one. If you apply the general
> constitutional principle that no branch of government should have absolute
> power in any one area without being checked by the other two branches, it
> becomes evident that the interpretation giving wide ranging powers to the
> president to wage acts of war has been an abuse of the constitution. My
> guess is that the war making powers given to the president were intended
> for emergencies where the president had to act in the interim period
> required for the congress to convene and deliberate. On the outside this
> should be thought of as a period of days.
>
> As  to the distinction between "making" and "declaring" war, It seems to
> me that the constitution gave congress the option of declaring war without
> necessarily having to engage in hostilities. Thus a war could be declared,
> to be followed immediately by negotiations, mediation, etc. that could
> avert "comsummation" of the war declaration.

I think that the legislative branch of the goverment must approve
any expenditures of the executive brach, thus if the president would
'make' a war without the legislative consent, he would not be able
to spend any money for this purpose.

At the time when the constitution was written, the permanent US armed
forces were able to perform some small operations, like Indian wars,
but were insufficient for any major conflict.  Thus the power of the
president was adequately constrained.  I think that we cannot reasonable
expect that the constitution from this time will be intentionally
adequate at present.  If indeed the current check mechanism is by
chance sufficient (i.e. the president has much larger power than
expected, but also the current reality requires this larger power)
than the constitution should not be changed.  I understand that the
Congress may pass laws to forbid the president to undertake selected
classes of belligerent acts, and this check on the executive is in
my opinion sufficient.

(*This is not an opinion of an expert*)

Piotr Berman