Who Has the Power to Declare War? Congress, the President, or No One in Particular

John and I have rather different views on the relationship between Congress and the President as it relates to the control of military operations against foreign nations.  In my view, the traditional account is in fact correct.  The power to declare war lies in the Congress; the power to execute the decision to declare war rests in the President.  The power to declare as I understand is the power to change the state of relations between the United States and a foreign nation, so that the laws of war now apply to them.  The function of the President is then to lead that military effort as the commander-in-chief, not of the United States writ large, but of the Army and the Navy, and the militia when called into the active service of the United States—which it can be only when done pursuant to some Congressional action.  As was made very clear in Federalist Number 69, the President’s power are far more limited than those of a king or even the governor of a state.

This particular point of view is consistent with the text of the provisions as they stand.  Under John’s view, there really is not much that Congress has to do, and nothing that it can do seems to make much difference at the critical moment of transition from peace to war.  To be sure, political restraints kick in later on, but under Yoo’s view, the President could take the initiative and decide to bomb Russia without congressional authorization, which is about as inconsistent with the Founders’ theory of checks and balances as one could imagine.  

This straight-forward analysis is not upset by looking at the parallel provisions in both the articles of Confederation that deal with war and those in other portions to the Constitution.  John is right to note that both of these use the word “engage,” as their operative term.  Thus the Articles of Confederation states in Article VI:  “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, …” Wars between states were not regarded as out of the question with respect to the Constitution either, for Article I, section 10 contains the rather chilling language “Article I, Section 10: No State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

But there is this critical distinction. The word “engage” is sufficiently broad to cover both the decision to declare war and the various decisions on how it should be executed, once declared.  That is the correct verb in both these contexts.  With the Articles of Confederation the emphasis was on how states as sovereign entities relate to each other.  In the US Constitution, because (in an era when state sovereignty meant more than it does today, the Congress of the United States has no control over the division of power within any state as to how that war should be conducted.  What Congress does is tell what the states what they may and may not do. 

The federal Constitution is vitally concerned with how those powers are divided within the federal government.  To it the federal government is not just some black box into which others pour content.  It is the source of that kind of authority, and one can see the obvious safeguard in not letting the President go off on peccadilloes of his own.

Yet that said, John makes one powerful point when he talks about the “first mover” advantage.  The necessity exception is evident insofar as it allows states to act first and talk later when they are subject to imminent peril from without.  That right of actions in conditions of public necessity is not explicit in the federal Constitution, but it is read in as consistent with general international practice on the simple ground that the Constitution is not a suicide pact.  That said, we do not need Congress to change our state of relations with other nations who have by their actions declared war on us.  The absence of that specific provision does not render the declare war clause a nullity.  It just shows how it should be understood as part of the complex tapestry that governs this matter.

There is, however, this lingering question:  can we really use the eighteenth century time tables in the twenty-first century, where events necessarily move much faster than previously were the case?  I have mixed emotions on this point, because not only do events move faster, but Congress can move faster if it is inclined to do so.

In the Libyan case, for example, the entire issue was left brooding for weeks, and yet Congress did not assert itself at all. The President in a bad burst of judgment thought that the source of his legitimacy was the United Nations, which is decidedly not part of the original American constitutional scheme. 

But one could ask whether the changes in the external political environment should be allowed to work a subtle shift in American constitutional practice.  My inclination on that question is no.  But it will be harder and harder to insist that Congress has an essential place in the constitutional scheme unless it insists on it.  It is not likely that courts will ever tiptoe into this arena, so that if the Congress does not stand up for itself, no one else would stand up for it.  On this state of affairs, ironically, we also have the President to blame, for in his effort to delay a firm decision he never did what should have been done. Go to Congress for a candid review and evaluation of the overall situation.

  1. KC Mulville

    The right to engage forces to repel attack is, of course, a situation where time is of the essence. Clearly, the president has a right to start fighting as soon as we think we’re being attacked, and doesn’t need approval.

    But this is a case where the decision to go to war was debated … just not by us. The deliberations took place among foreign governments, who (effectively) decided that it was in their interests that America fight a war. As Mark Steyn noted, we were volunteered by others. And I refuse to believe that by signing the UN Charter, we opened up our military to become the community property of the world.

    I welcome the suggestion that if our Constitution forces us into that corner, then we need to revise and amend it immediately. This situation is ridiculous.

  2. Good Berean

       ”The power to declare war lies in the Congress; the power to execute the decision to declare war rests in the President.  The power to declare as I understand is the power to change the state of relations between the United States and a foreign nation, so that the laws of war now apply to them.”

    Yes, yes and yes. When both branches are aware and engaged in the process with the external threat and in communication with one another, I believe this is how it should work. However, it seems that in reality such is seldom the state of affairs. Either there is  inadequate time, intelligence or opportunity for adequate discussion in order to yield agreement before action is required or desirable (at least from the perspective of the Executive). Under the circumstances during which war has been declared, it seems that all of these factors were present and the proper sequence was followed. However, every President who has taken action without congressional approval has felt it not only right but his duty, and within his power and authority, to do so. At least so far, there has never been an impeachment of the President on these grounds.

     

  3. Douglas

    On this issue, put simply, I think you’re right and John is wrong.

  4. Good Berean

    Now I’ve got that double post bug too, sorry. 

  5. Good Berean
    Good Berean: If I was in Congress I would agree with Richard. If I was the President I would agree with John (and Richard would too! Were he President, that is). · Mar 26 at 4:25pm

  6. Nickolas

    It seems the legal authority of the President to unilaterally initiate offensive military action is the issue. Apparently Presidents have done this in the past, as far back as Jefferson, without a declaration of war and without seeking and obtaining Congressional approval. And they have gotten away with it, so to speak. I am guessing that sets precedent no matter what the Constitution and other laws may say.

    I’m not sure how the chain of command works and under what conditions military officers can refuse to obey the orders of the President, but practically speaking it comes down to if and when the military follows the orders of the President.

    The question in my mind is what are the legal checks and balances on that power and authority and when can military commanders refuse to obey orders?

  7. Good Berean
    Nickolas: The question in my mind is what are the legal checks and balances on that power and authority and when can military commanders refuse to obey orders? · Mar 26 at 4:46pm

    Edited on Mar 26 at 04:47 pm

    The Cosntitution lays out the legal checks and balances. The political process is what puts energy behind the laws. If the President acts and the Congress does not check him, the policy proceeds according to the Executive. If Congress checks him, then there is a process of negotiation (or confrontation) by which the course set by the Executive is modified by according to the powers vested in the Congress.

  8. Nick Stuart

    The power to declare war should be vested in Harry Shearer. 

  9. Bereket Kelile

    That right of actions in conditions of public necessity is not explicit in the federal Constitution, but it is read in as consistent with general international practice on the simple ground that the Constitution is not a suicide pact.

    Since the framers thought that ‘declare’ was a narrower term than ‘make’ is it necessary to interpret this power in such a rigid way? It seems like your justification for the President responding to an attack without a declaration is a corollary of your view that declaring war is synonymous with engaging/commencing/making war. It also seems to me that if you go with the framers’ understanding of the distinction between the terms ‘make’ and ‘declare’ then your justification is not necessary because it’s clear that the President is within his authority to respond to an attack since Congress has the power to declare war, not make war. This would, however, make the President’s military actions a political dispute as opposed to a constitutional one since the Constitution does not say when the President can or cannot use military force. 

  10. Bereket Kelile
    Good Berean The Cosntitution lays out the legal checks and balances. The political process is what puts energy behind the laws. If the President acts and the Congress does not check him, the policy proceeds according to the Executive. If Congress checks him, then there is a process of negotiation (or confrontation) by which the course set by the Executive is modified by according to the powers vested in the Congress. · Mar 26 at 5:42pm

    Good point. I think the Constitution leaves this issue to be debated out as a political dispute. The good thing is that it provides a framework within which to make these decisions to go to war and a set of checks and balances when Congress and the President can’t agree. 

  11. Klaatu

    A question I have is whether the Congress has always deferred to the Executive and waited for a president to ask them to either declare war or authorize the use of force? 

    What would have happened had either house of Congress proactively voted to authorize the use of force in Libya or specifically voted against it?

    How would either of those votes have effected the political calculus?

  12. Nickolas
    Good Berean

    Nickolas: The question in my mind is what are the legal checks and balances on that power and authority and when can military commanders refuse to obey orders? ·

    The Cosntitution lays out the legal checks and balances. The political process is what puts energy behind the laws. If the President acts and the Congress does not check him, the policy proceeds according to the Executive. If Congress checks him, then there is a process of negotiation (or confrontation) by which the course set by the Executive is modified by according to the powers vested in the Congress.

    This explanation yields the authority to initiate offensive (kinetic) military action to the President, leaving Congress as the check.

    I think this is John Yoo’s argument.

  13. Pike Bishop

    To be sure, political restraints kick in later on, but under Yoo’s view, the President could take the initiative and decide to bomb Russia without congressional authorization, which is about as inconsistent with the Founders’ theory of checks and balances as one could imagine. 

    And for those of you who think this hypothetical situation just absolutely could not ever occur – go ask the engineers and designers of Japan’s nuclear plants if they ever thought about a 9.0 earthquake or the tsunami that would result.

  14. Good Berean
    Nickolas

    Good Berean

    Nickolas: The question in my mind is what are the legal checks and balances on that power and authority and when can military commanders refuse to obey orders? ·

    The Cosntitution lays out the legal checks and balances. The political process is what puts energy behind the laws. If the President acts and the Congress does not check him, the policy proceeds according to the Executive. If Congress checks him, then there is a process of negotiation (or confrontation) by which the course set by the Executive is modified by according to the powers vested in the Congress.

    This explanation yields the authority to initiate offensive (kinetic) military action to the President, leaving Congress as the check.

    I think this is John Yoo’s argument. · Mar 26 at 7:27pm

    It is, and it’s a good reason to have the right person in the White House.

  15. Good Berean
    Klaatu: A question I have is whether the Congress has always deferred to the Executive and waited for a president to ask them to either declare war or authorize the use of force? 

    What would have happened had either house of Congress proactively voted to authorize the use of force in Libya or specifically voted against it?

    How would either of those votes have effected the political calculus? · Mar 26 at 7:18pm

    There is a document available here which addresses your first question.

  16. Robert E. Lee
    Richard Epstein:  “Article I, Section 10: No State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

    What does this mean for the individual states?  Could Arizona, for instance, initiate unilateral military action if it considers the incursions of it’s southern border to be an invasion?

  17. Bereket Kelile
    Klaatu: A question I have is whether the Congress has always deferred to the Executive and waited for a president to ask them to either declare war or authorize the use of force? 

    What would have happened had either house of Congress proactively voted to authorize the use of force in Libya or specifically voted against it?

    How would either of those votes have effected the political calculus? · Mar 26 at 7:18pm

    The answer to your first question is yes. However, with the War of 1812 Madison did not ask for a declaration of war per se. He sent a message to Congress but I don’t remember what it was about.

    Your second question would be an interesting political debate, especially if Congress voted against it. I think that’s what they were doing with the War Powers Resolution. 

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