> And Congress delegated away an authority it is not authorized to
> delegate away under the C., no?
If if did, it did so 200 years ago. Congress allowed our very first engagement overseas to proceed without a declaration of war, our war against the Barbary pirates under Secretary of State and then President Thomas Jefferson. (The Barbary pirates were the enemies of civilization of their time, btw, and Jeffersonians proudly claimed this was a uniquely idealistic, and thus uniquely American, reason for going to war -- something that baser Europeans has been incapable of imagining before us. Plus ca change.).
Jefferson was consciously trying to lay a precedent for going to war without a declaration, and he was successful. And so were all presidents who came after him. Congress never declared war during any of literally dozens of regime changes we perpetrated in Latin America. Nor, just to take the most prominent conflicts of the last half century, during the Korean War, the Vietnam War, the Dominican Republic invasion, the invasion of Grenada, the invasion of Panama, the first Gulf War, the invasion of Haiti, the Bosnian intervention, or the Kosovo War.
So as ringing as it sounds on paper, the Declaration of War clause seems to have fallen into desuetude almost before the ink was dry. We inherited from our British forebears a fear of kings, and a belief that the most important advance won through the British Civil War was legislative control over the purse strings of war. But as soon as we stopped being afraid that we'd get a king in name, we seem to have forgotten why this declaration thing was so important.
To my knowledge, Congress has never in American history insisted on its perogative against the President's wishes. The very few times Congress has formally declared war have been precisely those moments when the two branches were in almost total agreement.
But, to be fair, the substance of the idea, that you shouldn't have a big war without Congress in some way publicly authorizing it, has usually been lived up to in exactly the same way it was lived up to this time. The president gets his party to introduce a resolution that everyone regards as a vote for or against war, and then Congress debates the idea and votes .... for it. And the other substantial idea, that Congress controls the purse strings of war, has also been lived up to. Congress may never have formally declared war on Vietnam, but year after year it debated and approved the crucial monies that were spent there. I don't see how that can be construed as anything other than substantial consent.
BTW, while we're on the subject, I seem to remember that someone ringingly claimed during the constitutional debates that the purpose of the Declaration of War clause was to prevent any future president from going to war the way past kings did simply for "glory or revenge." (Which is not a bad description of why we went to war this time. Too bad the DoW clause wasn't alive to stop it.) Does anyone recognize that phrase and know where it comes from?
Michael