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Rep. Emmer has a novel idea: actually declare war before fighting one

No member of Congress has moved to put forth a war declaration since 1941.

According to Emmer, the Islamic State has already declared war on the U.S.

WASHINGTON — This week, Rep. Tom Emmer moved to do something the United States Congress has only done 11 times in its history: pass an official declaration of war.

On Wednesday, Emmer introduced a joint resolution to the House of Representatives to officially declare war on the Islamic State, a move he says is in direct response to last week’s terrorist attacks in Paris. “This is an unprovoked act of war against one of our allies,” Emmer said. “The Islamic state has actually declared war on the United States and others.”

The freshman representative from the Sixth District says he wondered immediately after the Paris attacks, in which 130 people were killed by eight ISIS-affiliated terrorists, what the U.S. response would be. On Monday, Emmer says, “I asked leadership what the plan was, and asked why we weren’t considering a declaration of war. No one said it wasn’t on the table.”

Emmer then, simply, put something on the table. His resolution simply reads: “Declaring that a state of war exists between the Islamic State and the Government and the people of the United States and making provision to prosecute the same.”

An exceedingly rare event

No member of Congress has moved to put forth a war declaration since 1941, when Congress approved six declarations of war on the Axis powers, marking the official beginning of U.S. involvement in World War II. The other formal declarations of war came in 1917, on the Central Powers in World War I, in 1898 on Spain, in 1846 on Mexico, and in 1812 on Britain.

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In total, the U.S. has officially declared war on nine different states: Germany (twice), Japan, Austria-Hungary, Hungary, Bulgaria, Romania, Spain, Mexico, and Great Britain.

Since World War II, the U.S. has preferred to conduct its wars via Authorizations for Use of Military Force, laws that permit the president to use military force but are different from formal declarations of war. In Vietnam, the Gulf War, and the post-9/11 wars in Iraq and Afghanistan, AUMFs were utilized.

While AUMF and declarations of war both approve the use of force, there are a couple of important differences between the two. Mainly, declarations of war automatically authorize a broad array of actions presidents can take on the homefront during wartime, from imposing restrictions on trade to using public land for military purposes. That kind of authority isn’t automatic with an AUMF.

Declarations of war have also been applied uniformly to established nation-states, while AUMF have more often been used, as a Congressional Research Service report put it, “for broad authority to use U.S. military force in a specific region of the world in order to defend U.S. interests or friendly states as the President deems appropriate.” So, while the U.S. went to war against Saddam Hussein’s Iraq in 1991 under AUMF authority, that same authority applied to the fight against non-state organization al Qaeda in 2001.

Nothing for ISIS

The current fight against ISIS, which is primarily limited to airstrikes, has no updated AUMF or declaration of war underpinning it. The Obama administration says it has authority to carry out airstrikes based on the 2001 authorization to fight al Qaeda and the 2002 authorization for the Iraq War. Past attempts in Congress to deliver an updated AUMF for the president have fallen flat, and there’s little reason to believe one will succeed now. Republicans are reluctant to give more authority to a president they believe has the wrong strategy in the Middle East, and Democrats are wary of, yet again, authorizing broad military force in the region.

Beyond that, given that declarations of war have always applied to states and not non-state actors like al Qaeda, approving one could send the message that ISIS is a real state, which some in Congress might be reluctant to do. Emmer says we might as well treat it like one. “We have an organization that calls itself a state, occupies land, and by some estimates, has some 10 million people getting up every day under their rule,” he said. “They call themselves a state, we should treat them like a state.”

Even with a 13-year-old law as the foundation of the fight against ISIS, recent U.S. conflicts have been held up with less. The Korean War was not authorized explicitly by Congress, but was legitimized by the United Nations Participation Act of 1945, which permits the U.S. to intervene on the basis of U.N. Security Council resolutions. That law justified use of force in Panama in 1989 and in Bosnia in 1994, both not approved by Congress. Currently, there is no U.N. Security Council resolution against ISIS, though some world leaders are pushing for one.

As it stands today, Congress’ actions might not matter that much: according to the CRS, these days, executives have “welcomed support from the Congress in the form of legislation authorizing him to utilize U.S. military forces in a foreign conflict or engagement in support of U.S. interests, but has not taken the view that he is required to obtain such authorization.”

Emmer’s declaration of war — though he says it has been received favorably by his colleagues — is unlikely to pick up steam. But in a conversation with MinnPost, the congressman said he is seeking to send a message with his resolution. “The founders didn’t intend we have 536 Commanders-in-Chief…We have one Commander-in-Chief,” he said.

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“Members of Congress can certainly be involved and consult, but it is up to the Commander-in-Chief to handle this,” Emmer said. “A declaration of war is simply telling him, Congress is with you. Go defeat this enemy — we’re behind you.”