Understanding the War Power

Enemies of presidential power are joining forces with critics of President Barack Obama to land a blow against the executive’s Commander-in-Chief authority to use force abroad. On one side, Democratic representative Jerrold Nadler is demanding that President Obama seek congressional approval of a strike in Syria, and on the other side, Republican representative Justin Amash has done the same. One expects Rand Paul to have the same view (as he did on Libya). Washington Post columnist George Will weighed in today with a column also arguing that President Obama would be acting unconstitutionally if he doesn’t obtain congressional consent.

This argument, however, is inconsistent with the constitutional text, which conservatives claim they take more seriously than the president. The president is the “commander-in-chief” and the federal government’s “executive power” is vested in him, though Article II of the Constitution does not define either term. Congress has the powers to raise the military, issue rules for its governance and regulation, and fund it. If these were the only constitutional terms on war, one would have to be left with the view that the Constitution arms both branches and leaves them to battle it out for control over war. That has also been the lesson of American history, where the president and Congress have struggled over the war power, with the president since World War II exercising the initiative.

The critical constitutional provision for Nadler and Amash is Congress’s power to “declare war.” They assume that “declare” means “start,” “authorize,” or “commence.” This commits the sin of the Left’s approach to what they call the “living” Constitution: reading its words as if they have their contemporary meanings, rather than the meanings at the time of their ratification. Reading the provision this way creates problems — for example, what about surprise attacks? The Left’s view of the clause (this is the view that the Left developed to oppose the Vietnam War — it is not particularly Democrat or Republican) requires reading in an unwritten exception for defending the nation from attack, among other things.

But the biggest problem is that this reading of “declare war” reads one common contemporary meaning of “declare war” back into the minds of the 18th-century Framers. For a clue, we should start with the constitutional text first. In Article I, Section 10, the Constitution declares that:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

This provision is telling. Starting a war is not referred to as “declare,” but “engage.” Why not use “declare” in both places if it were to mean the same thing — initiate hostilities? Article I, Section 10 creates exactly the process — Congress must consent before a state can engage in war — between Congress and the states that “declare war” types think should exist between Congress and the president. It even has the exception for self-defense from attacks! But if the Declare War Clause means that the president must get Congress’s permission to start hostilities, it should have said: “The President shall not, without the Consent of Congress, engage the United States in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”

The Constitution must be interpreted harmoniously – the same words should be given the same meaning in the text. We should expect the Framers to have used the same words to mean the same things, or we have to believe that the Framers acted irrationally or without common understanding and purpose. Only a view that interprets “declare” war by looking to 21st-century meanings of the word could reach the conclusion that Congress must give authorization for the strikes in Syria first.

Conservatives who take constitutional meaning more seriously should pay more serious attention to the constitutional history before they come to the view that the Declare War Clause requires Congress to approve before President Obama can launch strikes in Syria. 

After the constitutional text, the next most important places to look are the other authoritative American legal documents of the Framing period. The Articles of Confederation acted as the existing national constitution at the time of the Constitution’s drafting and ratification, and the state constitutions, which were the next most important constitutional documents that created state governments that were in many ways more powerful than the national government at the time.

Looking at these provisions will show that the power to “declare war” could not mean the power to authorize, commence, or start military hostilities. Here is the provision on warmaking from Article IX of the Articles of Confederation:

The United States in congress assembled, shall have the sole and exclusive right and power of determining on peace and war, except in the cases mentioned in the sixth article . . .

Like Article I, Section 10 of the Constitution, Article IX is revealing because it does not use the phrase “declare war” to mean start or begin military hostilities. If the Framers had wanted to grant Congress all of the power to decide on war, they would have used the same phrase as Article IX: “Congress shall have the sole and exclusive right and power of determining on peace and war.” Article IX uses the words “sole and exclusive,” meaning to me that no other institution has any say in making war. The Constitution of 1787 does not use that language — as it does, for example, with the trial of impeachment by the Senate, which the Supreme Court has indeed read to exclude any other branch from participating.

Instead, the Framers gave Congress the power to “declare war,” which is a narrower power. Read as a whole, the Articles of Confederation show that declaring war is thought of as a different power than making war. Article VI of the Articles of Confederation, which Article IX cites, further declares:

No State shall engage in any war without the consent of the united States in congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the united States in congress assembled can be consulted; nor shall any State grant commissions to any ships or vessels of war, nor letters of marque or reprisal, except it be after a declaration of war by the united States in congress assembled, and then only against the kingdom or State and the subjects thereof, against which war has been so declared, and under such regulations as shall be established by the united States in congress assembled, unless such State be infested by pirates, in which case vessels of war may be fitted out for that occasion, and kept so long as the danger shall continue, or until the united States in congress assembled shall determine otherwise.

Article VI here shows that declaring war is about changing a legal status between nations, one necessary so that certain other steps, such as issuing a letter of marque and reprisal, could occur. Article VI does not limit states in responding to hostilities with other types of military force until after declaration of war. It has the exact same understanding of the power to declare war that Article X of the Constitution had — declaring war does not mean engaging in war.

Folks like Nadler, Amash, Paul and their academic supporters argue that the Framers had a substantive goal (reducing warmaking overall) and used a certain process (giving Congress control over making war) — to achieve it. The most prominent constitutional law scholar to hold this view, John Hart Ely, believed that if the president and Congress had to agree on war, then the United States would enter fewer wars and those conflicts would arise only after reason and deliberation: “The point was not to exclude the executive from the decision—if the president’s not on board we’re not going to have much of a war—but rather to ‘clog’ the road to combat by requiring the concurrence of a number of people of various points of view.”

Ely and his side rely on three pieces of evidence from the Framing to support this conclusion. First, during the federal constitutional convention James Madison moved, and the delegates agreed, to change Congress’s power from “make” to “declare” war, leaving to the president the power to repel sudden attacks. Second, James Wilson defended the Constitution in the Pennsylvania ratifying convention by declaring that “this system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress,” because the “important power of declaring war” is vested in Congress. Third, Joseph Story observed in his Commentaries that “the power of declaring war . . . is in its own nature and effects so critical and calamitous, that it requires the utmost deliberation, and the successive review of all the councils of the nation.”

As to the amendment of the draft of the Constitution, it is important to recognize that the journals of the federal convention were kept secret until Madison’s death in 1836. They could not have influenced the bodies that gave the Constitution its legal authority — the state ratifying conventions. All the ratifying conventions could go on was the fact that the draft Constitution gave Congress the power to declare war, where the Articles of Confederation had used a much broader phrase. But even if the secret proceedings at Philadelphia are to be given precedence, it seems clear that the debate on amending Congress’s war powers clause was confused — it took place late in the afternoon on a Friday in a hot, muggy Philadelphia summer — and its result was to narrow Congress’s power over war. Some argue that this should be understood as expressing an intent to recognize the president’s authority to repel sudden attacks, as one delegate said. But this would have been already understood even if the language had gone unamended. 

As for Wilson, it is again worthwhile to look at the larger context of his claim. Looking at the larger discussion, Wilson is discussing the power to make peace, rather than war. He is arguing that the Constitution has a built-in bias against war. Again, I think it depends on what “declare war” means. In my view, Wilson is talking about bringing the country into a state of full, total — or what the Framers called “perfect” — war. That would bring the greatest risk of calamity, and that is what is vested in Congress. But this does not directly address the question of all kinds of hostilities. I do admit that the Wilson quote is the best piece of evidence on the other side, though it is not as compelling to me as the evidence from the constitutional text and other bits of history.

Ely and others also rely on a variety of quotes, some from Jefferson (on how the Constitution’s vesting of power in Congress would tie up the “dogs of war”) and some from Madison, about how the Constitution intentionally gave Congress the power to start wars with the vesting of the Declare War power. The problem with these types of quotes is that they are anachronistic. Jefferson, for example, was not a Framer — he was in Paris at the time of the writing and ratification of the Constitution. Madison’s claim about Congress’s power to declare war was on point, but it came in 1793, in the midst of the Helvidius-Pacificus debates over the Neutrality Proclamation. It could not have expressed the understanding of the ratifiers because it came in the midst of a partisan fight over foreign policy after the Constitution’s ratification. Same goes for Story — he published hisCommentaries on the Constitution decades after the ratification. Story was eight at the time of the Constitution — he was a prodigy, to be sure, but not that much of a prodigy.

  1. BrentB67
    Bereket Kelile

    BrentB67

    Howellis

    Bereket Kelile

    Congress does have the power of the purse and the authority over the size and training of the military. So, there are political tools available to Congress if they are opposed to the president engaging in combat operations. 

    But in the world of arms, as opposed to the world of constitutional arguments, the enemy gets a vote.

    Once the president has unleashed the dogs of war he may not be able to control them, and Congress withholding funds or refusing to increase the size of the army might be a form of national suicide. · 16 minutes ago

    Given the Fed’s penchant for monetizing our debt any fiscal constraints are mostly illusions. · 1 hour ago

    The issue here is with the budget. As I mentioned in the comment above, there have to be requests made for funding and members have to vote on those requests. That means debate in Congress. Monetizing the debt won’t help because you still have a debt limit that Congress has to vote to raise.  · 6 hours ago

    I agree and you are correct on procedure. When was the last time it wasn’t raised.

  2. Peter Robinson
    C

    Absolutely fascinating, John–and you answer about half a dozen questions about which I’ve always wondered.

    Not for the first time, I find myself envying Prof. Yoo’s students at Boalt Hall.

  3. Paul A. Rahe
    C

    John, this looks like a stretch to me. Why bother to give Congress the responsibility for declaring war if the President is empowered to initiate a war? Put in other words, what difference would it make whether a war was declared or not? I am inclined to think that James Wilson, James Madison, and Joseph Story — when they are in accord — know what they are talking about in these matters.

  4. The King Prawn

    So basically you’re saying that the only power Congress has directly tied to the making of war is changing the legal status of the nation in relation to other nations? That sounds to me like a mere token authority if all other activities of war remain with the executive. One man could have a whole and complete (though imperfect) war without ever changing the technical, legal status. I can’t imagine a monarch on earth who would not be envious of such power.

  5. David Williamson

    I think I prefer the UK system, which of course doesn’t have a written constitution, in which Mr Cameron has just handed power of this decision over to Parliament.

  6. Matty Van

    John makes it clear that if we are attacked, we may ‘engage’ in war in self defense without waiting for a delcaration. In other words, if Syria attacks the US first, then of course the president may engage in war without the consent of Congress (but should get that consent as soon as practically possible). The writers of the Constitution weren’t stupid. They weren’t taking away the option of immediate self defense. But they were absolutely against presidential wars. They were not happy when Jefferson ‘engaged’ in one, but TJ, I’m afraid, proved very early that presidential power trumps constitutional restictions.

  7. Mark

    What is your take on the view expressed by Jack Goldsmith at Lawfare under the title “Why Doesn’t President Obama Seek Congressional Approval for Syria“? http://www.lawfareblog.com/2013/08/why-doesnt-president-obama-seek-congressional-approval-for-syria/

    Excerpt:

    I have a pretty broad view of presidential power to use military force abroad without congressional authorization . . ..  close to the past views of the Office of Legal Counsel, the . . . use of military force in Syria is a constitutional stretch that will push presidential war unilateralism beyond where it has gone before.  There are many reasons why it is a stretch even under OLC precedents.  The main ones . . .  are (1) neither U.S. persons nor property are at stake, and no plausible self-defense rationale exists; (2) the main non-self-defense U.S. interest that the [President] has invoked since [Korea] to justify unilateral uses of force – upholding the integrity of the U.N. Charter – appears (argued) to be disserved . . . by a military strike in Syria; and (3) a . . . strike would push the legal envelope further even than Kosovo, the outer bound to date of presidential unilateralism, which at least implicated our most important  treaty organization commitments (NATO). 

  8. Mark

    Could you comment on Prof Ramsey’s view (Originalism Blog) regarding your declare/engage distinction? http://originalismblog.typepad.com/the-originalism-blog/2013/08/war-in-syriamichael-ramsey.html

    Excerpt:

    Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities.  . . . this included not only . . . James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton. 

    How could this be, though, if Congress has only the power to “declare War”, which we may think refers to making a . . . formal announcement? Why can’t the President begin a war . . . without a declaration?

    The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities.  John Locke’s classic Two Treatises of Government from the late 17th century referred to “declar[ing] by word or action.”  Blackstone and Vattel, two of the 18th century legal writers most influential in America, also used “declare” in this way . . .  Thus in 18th century terms initiating an attack was as much “to declare war” as was making a formal announcement;

  9. Bereket Kelile
    The King Prawn: So basically you’re saying that the only power Congress has directly tied to the making of war is changing the legal status of the nation in relation to other nations? That sounds to me like a mere token authority if all other activities of war remain with the executive. One man could have a whole and complete (though imperfect) war without ever changing the technical, legal status. I can’t imagine a monarch on earth who would not be envious of such power. · 31 minutes ago

    Congress does have the power of the purse and the authority over the size and training of the military. So, there are political tools available to Congress if they are opposed to the president engaging in combat operations.

  10. BrentB67

    I have not read anyone articulating a position that the President does not have the right, obligation, or authority to defend the nation from imminent attack.

    There is absolutely nothing imminent or attacking about Syria, or Libya more than a year ago. There is no danger to the U.S.

    If Congress can not muster a majority of both houses to declare war and fund it then it seems a reasonable check and balance against an individual, in this case a President, engaging in wars not supported and funded by a majority.

    This was a nice read and it is a Blessing to get the first account from John Yoo on Ricochet, but nothing here compelled me to think that this or any President has a right to commit American blood and treasure abroad when there is absolutely no imminent threat to the U.S.

  11. Fake John Galt

    The President can wage war because he has an army. Just e glad he does not decide to wage one on you.

  12. Larry3435

    I see no magic in the words “declare war.”  Nor do I see the issue here as being primarily Constitutional.  But I think both common sense and the intent of the founders suggest that the President ought not to engage in military action without the support of the people, as expressed through their representatives.  It is not linguistic analysis but rather history that suggests that to do so is a very bad idea.  Very.  Bad.  Idea.

  13. James Gawron

    John,

    Obviously, from your post I conclude that it would have been optimal if the War Powers Act had been an amendment to the Constitution itself.  Unfortunately, we don’t have that.

    The other way is for the Supreme Court to pass judgement on War Powers.  After the Obamacare Mandate fiasco and the DOMA disaster, I am nauseated by the thought.

    I’ve always thought War Powers as a reasonable “checks and balances” solution.  The President has 60 days.  He can’t drag the country beyond that without congressional over-site.  BHO got a taste of what that’s like as the British Parliament punched a hole in David Cameron’s heart.

    I think it’s his call.  He has the power if he wants to use it.  I didn’t get myself elected President of the United States for two terms, he did.  I ran for resident of the United States.  It’s not a big job but I like it.

    Of course, if I read my military history correctly and VDH can umpire this, it would take about 60 days to get all of the overwhelming forces into proper position 100%.  Like George Herbert Walker Bush.

    Regards,

    Jim

  14. Howellis
    Bereket Kelile

    Congress does have the power of the purse and the authority over the size and training of the military. So, there are political tools available to Congress if they are opposed to the president engaging in combat operations. 

    But in the world of arms, as opposed to the world of constitutional arguments, the enemy gets a vote.

    Once the president has unleashed the dogs of war he may not be able to control them, and Congress withholding funds or refusing to increase the size of the army might be a form of national suicide.

  15. Howellis
    Bereket Kelile

    BrentB67

    Howellis

    But in the world of arms, as opposed to the world of constitutional arguments, the enemy gets a vote.

    Once the president has unleashed the dogs of war he may not be able to control them, and Congress withholding funds or refusing to increase the size of the army might be a form of national suicide. 

    The issue here is with the budget. As I mentioned in the comment above, there have to be requests made for funding and members have to vote on those requests. That means debate in Congress. Monetizing the debt won’t help because you still have a debt limit that Congress has to vote to raise.  

    Imagine this scenario:  The US attacks. Assad launches a whole series of chemical attacks, and Iran starts lobbing SCUDs at Israel and at American bases. 

    It might be too late to withdraw funding without causing irreparable harm.

    Once the attack starts, the war that follows could be a fait accompli regardless of what Congress would have done if it had been asked for permission.

    That’s why, in my opinion, it’s better to discuss the attack before it’s launched, not after.

  16. BrentB67
    Howellis

    Bereket Kelile

    Congress does have the power of the purse and the authority over the size and training of the military. So, there are political tools available to Congress if they are opposed to the president engaging in combat operations. 

    But in the world of arms, as opposed to the world of constitutional arguments, the enemy gets a vote.

    Once the president has unleashed the dogs of war he may not be able to control them, and Congress withholding funds or refusing to increase the size of the army might be a form of national suicide. · 16 minutes ago

    Given the Fed’s penchant for monetizing our debt any fiscal constraints are mostly illusions.

  17. Howellis
    BrentB67

    Howellis

    Bereket Kelile

    Congress does have the power of the purse and the authority over the size and training of the military. So, there are political tools available to Congress if they are opposed to the president engaging in combat operations. 

    But in the world of arms, as opposed to the world of constitutional arguments, the enemy gets a vote.

    Once the president has unleashed the dogs of war he may not be able to control them, and Congress withholding funds or refusing to increase the size of the army might be a form of national suicide. · 16 minutes ago

    Given the Fed’s penchant for monetizing our debt any fiscal constraints are mostly illusions. · 0 minutes ago

    Agreed.

  18. BrentB67

    I agree Howellis. The feckless crap weasels in the House leadership can’t formulate a coherent response one way or the other on whether we should strike at all. I can’t imagine them doing anything budget wise once we take the safety off.

  19. Fredösphere
    James Gawron: John,

    I’ve always thought War Powers as a reasonable “checks and balances” solution.  The President has 60 days. · 6 minutes ago

    Since Rep. Justin Amash has already been mentioned, it may interest you to know he’s been on twitter making legal as well as constitutional arguments against a strike on Syria. He asserts that the much-referenced 60-day blank check for the president in the War Powers Act is a myth. I don’t have an informed opinion, but I’d like to see discussion of WPA here: is it constitutional, do the courts uphold it (2 separate things!) and how might it impose extra constraints on the president?

  20. James Gawron
    Fredösphere

    James Gawron: John,

    I’ve always thought War Powers as a reasonable “checks and balances” solution.  The President has 60 days. · 6 minutes ago

    Since Rep. Justin Amash has already been mentioned, it may interest you to know he’s been on twitter making legal as well as constitutional arguments against a strike on Syria. He asserts that the much-referenced 60-day blank check for the president in the War Powers Act is a myth. I don’t have an informed opinion, but I’d like to see discussion of WPA here: is it constitutional, do the courts uphold it (2 separate things!) and how might it impose extra constraints on the president? · 13 minutes ago

    Fredo,

    Sounds like a plan.

    Regards,

    Jim