Have all U.S. wars since world war 2 been unconstitutional? According to the website of the U.S. senate: The Constitution grants Congress the sole power to declare war. Congress has declared war on 11 occasions, including its first declaration of war with Great Britain in 1812. Congress approved its last formal declaration of war during World War II. Since that time it has agreed to resolutions authorizing the use of military force and continues to shape U.S. military policy through appropriations and oversight. However, Article I, Section 8, Clause 11 of the U.S. Constitution remains unchanged. Since congress has not officially held a vote for declaring war - have they essentially been intentionally ignoring the constitution for the last 60 or so years? I thought the purpose of the constitution was to bind the government in its powers? The Korean War, the Vietnam War, Operation Desert Storm, the Afghanistan War of 2001 and the Iraq War - none of them were initiated with an official vote by congress.
The Korean War, the Vietnam War, Operation Desert Storm, the Afghanistan War of 2001 and the Iraq War - none of them were initiated with an official vote by congress. This is inaccurate. President Truman did break from precedent when he initiated a &quot;police action&quot; (read: not a war) on the Korean peninsula in mid-1950, and perhaps took advantage of an impending July recess when that &quot;police action&quot; started to look more and more like a &quot;war&quot;. There were however plenty of votes that Congress held during the remainder of the year that supported the actions that President Truman was taking. There were quite a few people serving in congress that raised a fuss about it at the time, but ultimately went along and funded the operations. Congress passed H.J. RES 1145, dated August 7th, 1964 after a US ship was attacked in international waters (the Gulf of Tonkin, which is why this legislation is more informally known as the &quot;Gulf of Tonkin resolution&quot;). This gave President Johnson authority to increase U.S. involvement in Vietnam. After awhile, Congress decided to retake some control back from President Nixon when they passed the &quot;War Powers Resolution&quot; in 1973. From their point of view this gave the Commander-in-Chief the power to protect American interests while at the same time limiting the scope of any action possible by placing a time limit on what the President can do unilaterally. A President can commit forces if they feel it necessary, but must notify Congress within 48 hours of doing so and only allows action to proceed for a total maximum of 90 days. After that, for any military involvement by the United States to continue, Congress must authorize it. Because of that legislation, Congress now passes what people call &quot;AUMFs&quot; (authorization for the use of military force). Desert Storm was authorized by a bill titled &quot;Joint Resolution to authorize the use of United States Armed Forces pursuant to United Nations Security Council Resolution 678&quot;. Military operations in Afghanistan were also approved in a similar way with a bill titled &quot;Joint Resolution to authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States&quot; which was signed into law by President Bush on September 18th, 2001 (one week after 9/11). All of this is to say that Congress has, in effect, ceded some of the power granted to them under the Constitution to the Office of the President, but not without reason. The ultimate answer to your title question, however, is that we have absolutely no idea. The only people with standing that can challenge in a court of law any given action would be Congress itself, and it has never chosen to do so. And, really, why would it when it can just pass legislation targeting anything the President does that they don't at least tacitly agree to? That way they can get what they want without having to worry how a squeamish Supreme Court may rule. It doesn't help matters that pretty much every single President since Nixon has in some form argued that the War Powers Act itself is unconstitutional. Additionally, there's not a single member of any branch of the Armed Forces which would listen to orders given to them by any member of Congress which contradict orders given to them by the President because doing so is likely to land them in jail. What we've more or less settled in to is that yes, Congress controls the power of &quot;war making&quot; by controlling the funding of the operations themselves, and the President can fulfill their obligation to protect and defend the United States and it's interests regardless of whether Congress is currently back home kissing babies at the moment. Below is a non-exhaustive list of pre-World War II military actions that the US participated in or against foreign territories without a formal declaration of war: &quot;The Indian Wars&quot;* First Barbary War (1801-1805) Philippine–American War (1899-1902) Pancho Villa Expedition (1916) *- The Indian Wars is actually a 300+ year long intermittent conflict between European Settlers (after awhile referred to as &quot;Americans&quot;) and different groups of Native Americans who had lived on the continent for thousands of years. This one bullet point could easily be deconstructed into dozens of individual conflicts.
Without regards to the actual case and the particular countries involved, I am wondering how it is even possible that a court in one country orders the whole another country to do something, let alone when the two countries do not even formally have diplomatic relations. The main statute that is relevant in the U.S. is the Foreign Sovereign Immunities Act (FISA) of 1976. In general foreign states are immune from liability in U.S. courts (and most courts of the developed world) subject to certain exceptions, the most common of which are as follows: Foreign state waives its immunity explicitly or implicitly Commercial activities by foreign state in or directly affecting the United States Property taken in violation of international law is at issue Rights in U.S. property acquired by succession or gift or rights in immovable property situated in the United States are at issue Money damages are sought against a foreign state for personal injury, death or damage to or loss of property caused by its tortious act or omission, occurring in the United States Enforcement of an arbitration agreement made by the foreign state with or for a private party Money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking or their support, if the foreign state is a designated sponsor of terrorism Admiralty lawsuit to enforce a maritime lien against a vessel or cargo of the foreign state, based on commercial activity The exception above in bold was probably the one applied in the North Korean case. The only countries to which that exception applies are North Korea, Syria, Sudan and Iran. (There are also separate similar rules related to countries with whom the U.S. is in a declared war.) There is sporadic ongoing constitutional separation of powers litigation in the U.S. over whether a FISA authorized lawsuit can proceed over the objections of the President as expressed by the U.S. State Department. The argument that FISA is unconstitutional in this context is that diplomacy and foreign policy is exclusively an executive branch power to the exclusion of Congress and the judiciary, but for the most part, this extreme position has been rejected in recent years. A conservative U.S. Supreme Court, however, could revisit this question (conservative judges tend to favor more absolute executive branch authority in foreign affairs). Once a party wins, however, the winner needs to identify foreign assets subject to the jurisdiction of the court from which to collect the judgment, such as gold deposits or U.S. governmental or corporate bonds or ships docked in U.S. ports, owned by the country. In strong contrast to the case above, the UK media recently overtly demonstrated disobedience of a New Zealand court name suppression order: a man arrested in NZ for allegedly committing an appalling crime was granted temporary name suppression, and that was ignored by the UK media. I am wondering if there is anything that would stop a New Zealand court to hold the UK to account just like the US court just did North Korea. In the New Zealand case, the remedy would be to bring suit against the particular newspapers or reporters involved, rather than the state. But, the U.K. might not enforce those judgments if those defendants lost, so enforcement might be limited to New Zealand based assets and persons, and then, only if the New Zealand court found that it had jurisdiction over the defendants under New Zealand law. So, this isn't really analogous. So, in general, are there any internationally recognised laws/treaties/protocols etc. that define if/when a court in one country can assert jurisdiction over the whole another country and hold it to account? Or is that completely up to the court and whatever extremes it dares to come up with? See above in the U.S. case. Most countries have similar statutes or case law to FISA which codified the case law applying customary international law at the time that it was adopted. One example that comes into my mind is the European Court of Human Rights: if a country signed the European Convention on Human Rights, it can be held to account by the court. But what conventions, if any, can be applied to the two cases above? The European Court of Human Rights case is one of consent to the jurisdiction of an international body by treaty. Countries like the UK and NZ have statutes or treaties governing when a foreign judgment (e.g. a judgment from a New Zealand court) will be recognized domestically. There are also usually laws governing when people present in one state will be extradited to another, usually in the form of a bilateral treaty between the affected states.
The US President is Commander-in-chief of the US military. The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; (from Article II section 2) That does not make the president the direct boss of every federal employee. The Congressional Sergeants-at-arms, in particular (and their assistants) are employed by, and responsible to, Congress, not the President. The Secret Service is part of the Department of Homeland Security (formerly part of the Treasury Department, until 2002) which is part of the Executive branch, but I am sure the President cannot order them to arrest someone who has not committed any crime. If such a thing were pushed to a direct confrontation, I have no idea where it would go, I hope we do not find out. Article I Section 8 grants Congress the power (among a number of others): To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings That seems to say the ultimately Congress controls the District, and sets the rules there. There is also the provision in Article I section two that: The House of Representatives shall choose their speaker and other officers; which would include the Sargent-at-Arms, I think. Article I section five says: Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member. which again seems to grant control over the situation to the individual houses of Congress. Article I section 6 says: The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place. which again puts Congress out of the direct control of the President.
The bill was never passed. According to the list of all actions on Congress.gov, the bill was referred to the Subcommittee on Consumer Protection and Commerce in April 2019. Evidently, that subcommittee never did anything further with it. The bill was never voted on by either the House or the Senate.
To pick up on your comment 'Does this mean if I wish to build a chair for personal use, then since trade of chairs exists between states, Congress has the authority to outlaw possession or manufacturing of chairs?': Yes. For example, the US Congress can legislate to prohibit a farmer from growing wheat for use on his own farm, on the basis that there is interstate trade in wheat and therefore the Commerce Clause permits Congress to regulate the growing of wheat: Wickard v Filburn (1942) 317 US 111. If you grow marijuana, or build a chair, or whatever, you conceivably affect the number of marijuanas, chairs, etc that are traded between states. Therefore you affect interstate commerce. Therefore the US Congress can regulate you. The fact that your marijuana or your chair or your what is trivial in the scheme of the national economy is irrelevant if the aggregation of all regulated marijuana, chairs or wheat is significant: 317 US 111, 127-128. If the law didn't prohibit possession of marijuana absolutely but instead prohibited, say, the carrying of marijuana in schools, then the US Congress might have trouble relying on the Commerce Clause: see United States v Lopez (1995) 514 US 549 and replace 'marijuana' with 'handguns' (OK the marijuana/handgun analogy is bad but hopefully this illustrates that there are at least some limits on Congress' power -- it's not just 'any physical object that relates whatsoever to interstate trade therefore unfettered federal legislative power').
The powers of the President are contained in Article II of the constitution; this is a fair summary. The power to make executive orders stems from Section 1 "The executive Power shall be vested in a President of the United States of America." When the Supreme Court considers the legality of an executive order (which only happens when someone brings a case that the court agrees to hear) they use Justice Jackson's Test from Youngstown Sheet &amp; Tube Co. v Sawyer (1952). The first amendment specifically forbids congress from making laws about these matters. Therefore the express will of congress (as the amendment required a 2/3 majority of Congress) is that there shall be no law about these matters. Since the President would be acting against the express will of Congress he would drop to the third limb of Jackson's test: When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.... Since, this is not a power that the President is given by the constitution it is likely that the Court would decide that he doesn't have such power.
Since the treason statute is quite vague, you have to discover what the details of the law is by looking at precedent. Almost all federal treason convictions in the US have involved declared wars. There is the case of John Fries, an early tax rebellion case in 1800, who was pardoned by the president thus rendering the need for legal appeal moot, but this involved armed insurrection and is thus not analogous. All other federal cases have involved people supporting the enemy in case of a declared war. In this specific case, the allegation is that by advocating not working with Syrian Kurds in an assault on Raqqa (because it was thought to be in the best interests of the US in terms of our relationship with Turkey, given the position of the Turkish state w.r.t. Kurds), Flynn benefited ISIS. Compared to various wartime treason convictions, such as Tokyo Rose and Axis Sally, the difference between imaginary "aid" in the case of Flynn vs. actual aid in the other cases is so stark that there is no case to be made for a treason charge.
International Humanitarian Law applies to all armed conflicts The Geneva Conventions are a part of the overarching body of this law. It applies to all armed conflicts, not just declared wars. An armed invasion by R of U is a conflict to which IHL applies irrespective of if it is a declared war or not. BTW, declared wars outside Africa and South America are virtually unknown since WWII