Letter to the editor: President can wage war without declaration

Commentary

OPINION:

Andrew Napolitano’s case against presidential war and military powers has more holes than Swiss cheese (“Biden, military force and the Constitution,” web, Oct. 25).

Mr. Napolitano writes that “all powers in the federal government come from the Constitution and from no other source.” As President Abraham Lincoln recognized during the Civil War, the president’s constitutional war powers are augmented by generally recognized laws of war.

Mr. Napolitano says only Congress can declare war, but the Supreme Court held in the Prize Cases in 1863 that a president can wage war without a declaration of war. These cases upheld Lincoln’s power to fight the Confederacy without a declaration of war.

While President Franklin Roosevelt got a declaration of war in response to the Japanese attacks on Pearl Harbor, Guam, Wake Island, Midway Island and the Philippines, it’s likely that under the Prize Cases he could have done so without a congressional declaration.

Mr. Napolitano also writes that Congress could not declare war against Russia or Gaza because “there is no militarily grounded reason for doing so.” That’s for Congress to decide; no court would consider the validity of a declaration of war to be a justiciable issue.

He writes that Congress has only authorized military weapons to Ukraine, and has not authorized deployment of troops to show Ukrainian troops how to use the weapons. But the authority to deploy the weapons necessarily includes the authority to show how they’re used.

Mr. Napolitano continues that the president may not send aircraft carriers to the eastern Mediterranean (which he has done). In fact, as commander in chief the president may deploy naval vessels as he sees fit.