September 5, 2013
GARRETT EPPS: Yes, Congress Can Authorize War Without Formally ‘Declaring’ It: The lawfulness of action in Syria doesn’t depend on magic words — lawmakers can consent in any form they choose. When I was a visiting professor at Virginia a while back, I remember a heated discussion on this question. John Hart Ely and I took the position that, just as a contract doesn’t have to say “CONTRACT” at the top in bold Gothic type, so a declaration of war need not read DECLARATION OF WAR at the top so long as it contains the requisite elements. The international-law folks get their panties in a wad over this — form over substance is their stock in trade, after all — but their complaints are constitutionally irrelevant.