There have only been five congressional declarations of war in the history of the United States, with the War of 1812 being the only one that was initiated by Congress. The other four—the Mexican War, the Spanish-American War, World War I, and World War II—were declared after it was requested by the president in response to an attack. Every war since World War II has been conducted without a formal declaration, though with alternate congressional consent—like the Gulf of Tonkin Resolution in Vietnam, or the Authorization for Use of Military Force in Iraq.
.. Critics of Fein’s strict constitutional view, like Yoo, believe that Article II, Section 2 invests the president with the power to wage war as commander-in-chief of the military. Yoo believes that the framers, far from equivocal during ratification, deliberately created the tension between the executive and legislative branches on the issue of war and did not restrict the president’s ability to initiate hostilities without a formal declaration. That declaration merely provides the legal framework for the war, Yoo said, dictating and establishing terms with the enemy, among other conditions. And Congress has the authority to test the president by withholding the funding for it.
.. “The main check is the executive and legislative branch conflict,” Yoo said, and “the power of the purse.” “I don’t know if the president has the power or resources to run a long-term war without Congress,” he added.
.. blamed Congress for “cowardice” in hiding behind the president on issues of war.
.. “I’m not accusing the executive branch of usurpation; the legislative branch just throws [their power] away,” he said.
.. Even Yoo admits that Congress has been funding an “offensive” not “defensive” military that allows the executive to wage hostilities all over the globe without formal declaration or even its own direct authorization. “Congress gives money, builds assets, with no restrictions,” he told TAC after the debate. “If you do it this way you are not politically responsible.”