The
Korean War was the first modern example of the U.S. being taken to war without a formal declaration,
[8] and this has been repeated in every armed conflict since. Beginning with the
Vietnam War, however, Congress has given other various forms of authorization to do so. Some debate continues as to the appropriateness of these, as well as the tendency of the Executive Branch to engage in the origination of such a push, its marketing, and even propagandizing or related activities to generate such support.
Thus in light of the speculation concerning the
Gulf of Tonkin Incident and the possible abuse of the authorization that followed, in 1973 Congress passed the
War Powers Resolution, which requires the President to obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities with a full disclosure of facts in the process. Its constitutionality has never been settled, and some Presidents have criticized it as an unconstitutional encroachment upon the President. In 2007,
University of Virginia professor
Larry J. Sabato proposed a
Constitutional amendment in his book
A More Perfect Constitution that would settle the issue by spelling out the exact powers of each branch in the Constitution itself. One counter-argument is that the Constitution is a "living document" which has survived for over 200 years because not everything is "spelled out." In the area of the War Powers Clause, the flexibility provided by the requirement for a Congressional statute permitting war (a declaration of war) and Constitutional interpretation could be sufficient. The President could defend the country, but not—by himself—use the military offensively. This would not require a Constitutional amendment or a statute like the War Powers Resolution; it has been with us since 1787.
Some legal scholars maintain that offensive, non-police military actions, while a
Quorum can still be convened (see
Continuity of Government), taken without a formal Congressional declaration of war is unconstitutional since no amendment with two-thirds majority of states has changed the original intent to make the War Powers Resolution legally binding. However, the
Supreme Court has never ruled directly on the matter and to date no counter-resolutions have come to a vote. In the absence of a determination by the US Supreme Court, the
Separation of Powers produces a stalemate on this issue.