Bench Memos

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Undeclaring Wars


At his nearby blog, Mark Levin takes issue with my view that a declaration of war can be repealed by Congress. Mark says he is “aware of no authority for the proposition that Congress can undeclare a war.” It is true that in the small number of cases in which Congress has formally declared war in our history, it has never subsequently “undeclared” a war before what we may call its “natural” conclusion. A state of war is a fact of international relations, recognized in international law, and the return of peace is ordinarily the product of victory by one of the parties or negotiation between them—both of which are constitutionally committed (as a matter of primary responsibility) to the presidency in our system. It would be a constitutional crisis of the greatest magnitude for Congress to attempt, by “undeclaring” an ongoing war, to intervene in the president’s conduct of a war that had not reached its termination, and to whose successful prosecution he legitimately remained committed.

All this being said, it seems to me to be a crisis that a Congress could improvidently generate if it wished to do so. As I argued, a declaration of war is, constitutionally, like any other legislative enactment. And no legislative enactment can be passed that cannot be repealed, by the same or any later Congress, at the moment of its own choosing.

What’s more, when wars have been fought and won, such “undeclarations” of war have actually been enacted. In my previous note on this, I remarked on the declaration of war against Germany passed by Congress on December 11, 1941. In 1951, the 82nd Congress passed an act (Public Law 82-182, 65 Stat. 451) saying that the “state of war declared to exist” between the U.S. and Germany ten years earlier “is hereby terminated.” This enactment heralded the return of peace between the two countries in international law. Either such a statute, or a treaty between the two nations, was necessary for the termination of hostilities and the restoration of those normal relations in which the citizens of each country would not be treated by the other as hostile aliens.

Would it be crazy for Congress to enact such a termination of a state of war while hostilities still raged? Absolutely. Would it be constitutional for Congress to do so? I’m afraid it would. Would a president in the midst of fighting a war be justified in defying such an enactment’s terms if it were passed over his veto? That is the most interesting question of all, and depending on the circumstances, I could answer it affirmatively as well.

Tags: Franck


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