I think the September 11th attacks would meet most everyone's definition of war.
The thing that's hard about 9/11 is not the kind of attack that it was, but who carried
them out.
The threat of terrorism is a different kind of threat.
A small group of people can launch attacks within the United States in ways that we couldn't
detect or stop.
The difficulty is that terrorism, because it's not a state, the enemy doesn't wear uniforms,
they don't have cities, population, territory to defend ... they seem to look more like
criminal gangs sometimes than an enemy's armed forces.
The Framers would have known that you could have wars between nation states, but that
you could also have wars with non-state actors.
In our day, it's terrorist groups like Al-Qaeda and ISIS.
In the late 18th century and in the 17th century, there were more kinds of non-state actors
than were today.
Slave traders, mercenaries, pirates ... the United States and other countries used force
against these kinds of groups regularly.
Declaration of war comes from the British experience.
And if you look at the wars that the British waged, in the 100 years before the Constitution,
they only declared war once before hostilities started.
The best example that everyone's read of a declaration of war is the Declaration of Independence.
Our Declaration of Independence is a declaration of war.
The President's power comes from the Constitution.
The Commander-in-Chief clause makes a president the commander of the armed forces.
Several other parts in the Constitution talk about "engage in war" or "levy war" or "engage
in hostilities or attacks."
And only in that one clause does the Constitution use the phrase, "declare war" so I would think
if the Constitution and its framers meant declare war meant start war, it would have
used that phrase consistently throughout, but it doesn't.
Congress declares war quite infrequently.
Congress has only declared war five times and the last time was in World War II.
But the United States has used military force abroad more than 100 times in our history.
Sometimes Congress passes a statute that authorizes the president to use force.
Now those aren't declarations of war specifically under the Constitution.
Declaration of war is more important in my mind for legal purposes, rather than to start
hostilities.
I think a declaration of war is a changing of the legal status between the United States
and its citizens and another country and their citizens.
The Framers spoke about perfect versus imperfect war.
The imperfect war would be things that were short of a declaration. A lot could fall
into that.
Ranging from border skirmishes all the way up to just short of declared wars, like Iraq
and Afghanistan, that look like the kinds of hostilities you'd have in war but are not
fully legal ... so they're not perfect.
The declaration of war actually was a way to perfect hostilities into a full-blown war,
where you're really breaking off all relations with another country.
If you think about the kind of challenges a country faces, war is going to be the one
that has the most unforeseen circumstance,
the one that arises without predictability.
So it would make sense to vest the power to respond to those in the Executive Branch.
And that's why the Framers when they discuss the Presidency, they concentrated executive
power in one person.
Once a war starts, anything the President's power to decide, when to fight, where to
fight, how to fight, become paramount and Congress' influence, uh, starts to fall.
I don't think that Congress can give direction, that's what the President's Commander-In-Chief
power means.