Does any president need a AUMF or DoW *every* time US forces enter combat?

[SSG Snuggle Bunny]

I tend to side with the camp that says the CinC’s role is plenary. If congress doesn’t like where the king’s army is fighting they may impeach the king and/or de-fund the operation. If the people don’t like how the army is being deployed they are obligated to elect better kings (please!). Even Madison admitted “the sword is in the hands of the British King; the purse in the hands of the Parliament. It is so in America, as far as any analogy can exist.”

I don’t see a Declaration of War (DoW) as being desirable in all cases as do the Paulestinians and their ilk. If I understand DoW’s correctly they transfer authorities to the executive branch that aren’t necessarily needed or desireable in anything other than a state of total war, such as comandeering private assets absent due process. Thus a DoW is reserved only for the express purpose of broadening presidential power into traditionally civil, legislative and judicial affairs.

An AUMF appears mostly to be an acknowledgement by congress that a military operation ordered by the executive has been debated and gained a majority of support.

The War Powers Resolution, to my mind, was not an expansion of the president’s war-making powers but an effort to curtail them by a war-weary congress following Viet Nam. I hasten to add I believe the WPR is an infringement of Art II’s separate powers.

That being said, imagine a scenario where a nation declared a Naval Exclusion Zone. Would a US president be hide-bound by this declaration of a foreign power to refrain from ordering US naval assets into the zone if doing so became a de facto state of war? What would the WPR do in such an instance if congress disapproved and would it pass constitutional muster?

[DumbAss Tanker]

MSB, you have a very accurate understanding of things.  A DoW is certainly not a prerequisite to engage in hostilities, its significance is more one of international law and diplomatic relations, and does not for most purpose have a military significance at all as far as engaging in actual combat operations are concerned.  It does enable us to undertake farther-reaching actions in areas like commerce interdiction under international law with fewer consequences, especially where third parties are concerned.  For purposes of Presidential powers, though, a 'State of war' or 'In time of war' tend to be more a factual issue than a legal one, and unless the particular power seems to actually require a DoW, de facto war may trigger it.  Also there are 20-some different flavors of 'State of emergency' or 'Condition of war or emergency' grants of extraordinary powers to the Executive, in most of which the Executive himself is granted to power to make the necessary finding which invokes the power. 

The WPR is of debatable legitimacy as a law, and stopped short of becoming one in an unwritten drug deal between the Legislative and Executive branches, where the former backed off trying to pass it over a probable veto, and the latter agreed to voluntarily follow it rather than either side having to take it to the acid test of the Supreme Court and have one or the other of them lose big.  Even as written, it allows the President some pretty-damn-near-complete freedom of action, but for only a limited period; the only consequences are the ultimate power of the purse after that time if the President decides to flout it, but that ultimately requires further Congressional action to actually de-fund the effort specifically or re-program the money he's using.

The Navy has a historical and continuing mission known as "Freedom of navigation exercises," using warships to pass where, to our understanding of the international law of the sea, they are allowed to go.  We do this since acquiescing to things like 'Naval exclusion zones' that do NOT appear to us to be supported by customary maritime law tends to legitimize them, and we can't have that.  It was such an exercise that was involved in the shoot-down of two Libyan aircraft over the Gulf of Sidra under President Reagan, when Moe the Q somewhat-presumptuously declared a "Line of Death" far outside the normally-accepted international sea boundaries of Libya.  This mission is routinely conducted in off-shore waters of potentially-hostile powers and has rules of engagement of its own, which allow the commander on scene to react as required to protect his force, without any screwing around notifying Congress. 

Now, if there were to be a planned reprisal or punitive attack rather than just defensive reaction during a naval passage, THAT is something for which a President would generally decide to 'voluntarily' advise Congress in advance under the WPR.