An intriguing column addresses the original intent of requiring a Congressional Declaration of War, but it does not address what really is the central question: the definition of “war.”
Is “war” simply “combat” which is how it currently seems to be defined? That begs the question: why different words?
Or is “war” the use of all national measures to defeat a strategic opponent, as was the last declared war, WW2, and “combat” simply the insertion of troops with no broader goal than the tactical defeat of a battlefield opponent?
Today it would seem necessary to stop conflating “war” and “combat,” to recognize that “combat” can exist without “war,” but not vice-versa, and that “combat” without “war” is a futile waste of blood & treasure. See Korea, Vietnam, Kuwait, Iraq, Afghanistan…
Or, perhaps, we SHOULD conflate the two and restrict the CINC from entering into any “combat,” the thrust of the column, without a formal Declaration of War, which is the Constitutional requirement.
Perhaps a stronger Constitutional approach would be an avenue through SCOTUS to reach an interpretation of Article 2, Section 2: “The President shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into active service of the United States.” What is the purpose of the clause, “and of the Militia of the several States”? Does it inform the “active service” clause, or is it independent of it? If it is independent, then the president is CINC only in the instance in which “the Army and Navy…. [are] called into active service,” presumably on formal declaration of war. If the “militia” clause only informs the “active service” clause, why the comma separating them – it is not grammatically required. In fact, the comma seems to indicate that the “militia” clause IS independent of the “active service” clause.
A formal interpretation of this sentence would obviate any argument over inserting forces, as it would strictly define the CINC powers under Article 2, hopefully concluding that the president is only the CINC following formal Declaration, which seems the strict interpretation of that sentence.