I have been travelling and am just catching up, and I see that on Friday afternoon over at The Corner (before he took off on some travels of his own), Andy McCarthy remarked in passing that “the president does not have to sign . . . a declaration” of war, since the power to declare war is given to the Congress.
I can’t say I’m 100% certain, but I don’t think this is right. Congress’s power to declare war appears in the midst of the main list of its other legislative powers, in the eleventh of eighteen clauses in Article I, section 8 of the Constitution. It is not distinguished by any mark that would set it apart from the other powers in the list, each of which calls for the same legislative process described in Article I, section 7: “Every Bill . . . shall, before it become a Law, be presented to the President of the United States” for his signature or veto; and “Every Order, Resolution, or Vote to which the concurrence of the Senate and the House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President” likewise.
Are declarations of war “laws” passed by Congress? Inasmuch as they activate an authority on the president’s part that will in many instances be dormant otherwise, how could they not be? Andy finds the Iraq resolution of 2002 to differ from a declaration of war precisely in the necessity of its having been signed by the president. I can’t find the evidence to nail this down right now, but I am willing to bet that on the few occasions (five?) when Congress is generally said to have declared war, the declaration had to be signed by the president to take legal effect.
As evidence pointing in this direction at least, I would refer to the December 11, 1941 declaration of war against Germany. It can be found in the U.S. Statutes at Large, as “Public Law 77-331.” Nothing in our national legislative process becomes a “Public Law” without the signature of the president, his inaction during the period assigned for his decision to sign or veto, or an overriding of his veto—all under the terms of Article I, section 7.
We may not think of declarations of war as ordinary acts of legislation, subject to all the usual procedures, for a number of reasons—among them that these are rare acts of huge importance. But they are not truly a breed apart from all other congressional powers. And I’d suggest that one reason we don’t even notice whether presidents sign declarations of war is that they are ordinarily the ones who ask for them in the first place. No one waited around to see if FDR would sign the declaration against Germany.
Contrary to Andy, I would regard the Iraq resolution of 2002 as the full functional equivalent of a declaration of war. It is another question whether that resolution, or any formal declaration of war, can be rescinded by Congress. I believe that either of them could be, just as any act of Congress can be repealed by a subsequent act. On this, Andy and I seem to agree. Under the circumstances, it is wise for President Bush to keep his veto pen handy.