Can The President Unilaterally Declare An Invasion?
In my post on the invasion executive order, I wrote “I think it pretty clear that the President can declare an invasion.” A reader opined that because Congress has the power to declare war, the President cannot unilaterally declare an invasion. Relatedly, a reporter asked me if a President has ever before declared an invasion.
I think the general consensus view is that for the President to use military power abroad as part of a war, Congress must declare war. (There is some debate about whether a declaration is needed for something less than a war, such as “hostilities,” but I’ll table that issue for now.) I also think the general consensus view is that the President does not need a declaration of war to repel an invasion. That is, if the United States is under attack, the President can act to secure the homeland before seeking authorization from Congress. And if the President can repel an invasion, then he necessarily has the power to declare when such an invasion is occurring.
Â
Thankfully, the United States has suffered very few invasions. Our conflicts generally have been fought abroad. A few of the more prominent invasions would be the War of 1812 and Pearl Harbor. In both conflicts, Congress issued declarations of war against Great Britain and Japan, respectively. On short notice, I could not find anything from President Madison that is relevant for the War of 1812. But I find relevant President Franklin D. Roosevelt’s “Day of Infamy” speech, delivered on December 8, 1841. This speech asked that Congress declare war between the United States and Japan. Yet, FDR had already determined that Japan invaded the United States. He spoke to the invasion directly:
“No matter how long it may take us to overcome this premeditated invasion, the American people in their righteous might will win through to absolute victory.”
I do not know if Roosevelt was able to dispatch any orders to Pearl Harbor during the attacks. But let’s assume that communications were different. Does anyone doubt that Roosevelt could have ordered troops at Pearl Harbor to fight back against the invading Japanese Kamikazes? I think the answer is yes, because the President has the Article II authority to repel an invasion. What is the alternative? Would FDR have to convene Congress and wait for a declaration to stop an impending attack?
If that analysis is right, where would that declaration of invasion leave Hawaii? (Assume for a moment that Hawaii was a state in 1941). Article I, Section 10, Clause 3 provides that a state can “engage in War” when “actually invaded.” If President Roosevelt declared that Hawaii was being invaded, the Executive of Hawaii could have “engaged in War” against the incoming attack. I do not know that Hawaii even had the apparatus of war, but that is a separate question.
In 1942, several Nazi saboteurs landed on the beach in Long Island. I would think that these were invading forces. By this point, war had already been declared against Germany, so a declaration of invasion would not have been necessary. For whatever
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.
