Who Has The Power To Start A War?

Could it really be that the president has the authority to take us to war for whatever reason happens to motivate him on any given day? Is it truly likely that, while the Framers of the United States Constitution denied the president the mundane power to create a post office, they at the same time gave him the power to venture everything—“our lives, our fortunes and our sacred honor”—in armed conflict with other nations? All on his own? We make federal cases (literally) out of the executive branch’s authority to, say, impose a minor FCC user fee, or dismiss a faceless administrative agency employee. But when a president claims the whole of America’s military forces as his personal factotums to do with as he pleases, there’s barely a hitch in our stride.

This year’s military ventures should impel us to reflect on the safeguards the Constitution erects against the danger of a single person wielding such awesome and terrible power. We are now in the second war we have started in as many months. And last year we flirted with war against Denmark—a treaty ally, if that still means anything—for the purpose of eliminating the threat to national security posed by … Greenland. Going forward, there’s loose talk about “taking” Cuba, whatever that might mean. But in all the chest-thumping and martial activity, there’s little enough to suggest we are approaching the question of war with the sobriety, gravity, and attention to the Constitution the subject ought to inspire.

Wars—unlike almost any other matter of state—bring with them the potential for an abrupt and violent end to one of the participants. Not ours, we comfortably imagine. Our military power is such that we assume this potentiality applies only to our enemies. Venezuela, certainly, is no existential threat. Neither is Iran, so long as the war doesn’t metastasize. But wars are unsure and risky things. Malevolent actors may see opportunity where we see only certainty. So there is no guarantee that limited, regional conflicts will remain either limited or regional. And history teaches in bloody detail that when war spreads, it sometimes reaches nations capable of destroying the aggressor.

Now, this is no stalking horse for some oblique challenge to the prudence of this year’s military endeavors. War with Iran is 47 years overdue, and should it topple the government, it would be to the acclaim of both the Iranian and American peoples. The war with Venezuela, which appears to have commenced and ended on the same day, brought the welcome removal and incarceration of one of the most malignant heads of state in the Western hemisphere. These regimes have no claim on our sympathies. But notwithstanding the righteousness of these causes, there are yet considerable risks in going to war—risks that should make us pause long enough to remember who has the authority to commence hostilities.

Some scholars, like Professor John Yoo, think that the decision belongs to the president alone. In a recent article for National Review, he dismissed those who believe the president “must seek a congressional permission slip” before starting a war as “misread[ing] the Constitution’s text, structure, and history.” “When the Framers ratified [sic, drafted] the Constitution,” he wrote, “they would not have understood a declaration of war as necessary to initiate hostilities.”

So let’s see what those sources say about this question. The war-making power, after all, was a matter of some debate when our government was in its infancy—a debate conducted against the backdrop of the British monarchy. As recent subjects of the king, the delegates to the Philadelphia Convention were intimately familiar with his powers. And as close students of history and political affairs, they undoubtedly knew of William Blackstone’s observation that, under that form of government, “the king has … the sole prerogative of making war and peace.”

That’s a dangerous arrangement, as John Jay would later explain in Federalist No. 4, because a monarch often has reasons for going to war that radically differ from his nation’s best interests. He said such heads of state “will often make war when their nations are to get nothing by it, but for the purposes and objects merely personal, such as thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.” This can both subvert justice and create a conflict of interest with the public: “These and a variety of other motives, which affect only the mind of the sovereign, often lead him to engage in wars not sanctified by justice or the voice and interests of his people.”

So when it came time to allocate the war-making power in the Constitution, the British arrangement was a non-starter for most of the Convention delegates. Using the same language as Blackstone, the first full draft of the Constitution placed the whole of the power “to make war” in the legislature, not the executive. Charles Pinkney was concerned about the practicalities of the House sharing in that authority, however. He thought the entire legislature’s proceedings would be too ponderous because it would meet but once a year and the House was “too numerous for such deliberations”; he would give the power to the Senate alone. Pierce Butler, on the other hand, thought the Senate suffered the same defects as the House, so he proposed replicating the British arrangement by giving the president the power “to make war” on the grounds that he would act expeditiously and “will not make war but when the nation will support it.”

James Madison and Elbridge Gerry suggested a compromise: divide the war-making power between the legislative and executive branches. They proposed giving Congress power to “declare” rather than “make” war, which they said would “leav[e] to the Executive the power to repel sudden attacks.” Roger Sherman opposed the change in wording, but agreed that the president should “be able to repel and not to commence war.” The idea of a president with the ability to start a war was scandalous to Mr. Gerry, who said that “he never expected to hear in a republic a motion to empower the Executive alone to declare war.” George Mason also wanted to change “make” to “declare,” while leaving the power vested in the legislature as a whole. He specifically rejected “giving the power of war to the Executive” on the grounds that he was not to be trusted with it. He was instead for “clogging rather than facilitating war.” Oliver Ellsworth agreed, saying he believed it should “be more easy to get out of war, than into it.”

Ultimately, the Convention followed the Madison/Gerry suggestion by dividing the war-making power. And so it is that our Constitution gives Congress alone the power to “declare war,” while giving the president authority over how a war is conducted by making him the “commander in chief of the army and navy of the United States.” Because wars can also be commenced by an enemy, this arrangement allows the president to respond to hostilities initiated by other nations, which meets the delegates’ concern that he should be able to expeditiously “repel sudden attacks.” It also preserves their interest in “clogging” the march to war and preserving the republican ideal of representational government by entrusting to Congress alone the authority to risk its vagaries.

The legislature’s exclusive power to initiate war is also reflected in the Framers’ comments, letters, and essays that later explained the terms of the Constitution they drafted. Pierce Butler, for example, recounted to the South Carolina Legislature in 1788 that his idea to give the war-making power to the president was rejected “as throwing into his hands the influence of a monarch, having an opportunity of involving his country in a war whenever he wished to promote her destruction.”

Alexander Hamilton, in Federalist 69, laid out how the Constitution cabins the president’s authority in matters of war. And he did so by explicitly contrasting that limited authority against the British king’s unbridled power. He noted that although the president’s capacity as commander in chief gives him “authority [that] would be nominally the same with that of the king of Great Britain” (emphasis supplied), it would “in substance [be] much inferior to it.” The factor making the president’s war-making authority substantially inferior is that he can neither declare war nor raise military forces. The Constitution, Hamilton said, gives the president “nothing more than the supreme command and direction of the military and naval forces, as first General and admiral.” Generals and admirals, of course, are not commonly empowered to start wars on their own cognizance. In contrast, the king’s authority “extends to the declaring of war and to the raising and regulating of fleets and armies—all which, by the Constitution under consideration, would appertain to the legislature.”

Madison had occasion to return to this question when President John Adams was jockeying for war with France over Vice-President Jefferson’s staunch opposition (remember that, until 1804, the Vice-President was the presidential contest’s runner-up). In a 1798 letter to Jefferson, Madison recounted how the question of war would have to be resolved in the context of the Constitution’s divided war-making power. “The constitution supposes,” he wrote, “what the History of all Gov[ernmen]ts demonstrates, that the Ex[ecutive] is the branch of power most interested in war, & most prone to it.” And he observed that this supposition led to the power’s division: The Constitution “has accordingly with studied care, vested the question of war in the Legisl[ature]” (emphasis supplied). The alternative, Madison said, would “deposit the peace of the country in that Department which the Constitution distrusts as most ready without cause to renounce it”—meaning “that the people are cheated out of the best ingredients in their Gov[ernmen]t, the safeguards of peace which is the greatest of their blessings.”

The First Barbary War illustrates how the Constitution’s division of war-making power actually works in practice. After years of piracy against American merchants, Tripoli declared war on the United States (in the Barbary custom of cutting down the flagstaff in front of the United States Consulate). A debate arose over whether this was sufficient to authorize the president to go on offense against the enemy in the absence of a congressional declaration of war. President Jefferson (perhaps surprisingly) thought not; Alexander Hamilton disagreed. Reprising the debate in the Philadelphia Convention, Hamilton said the president’s power to employ the nation’s military forces is determined by whether we are in a state of war with the targeted country. Such a condition may arise voluntarily (as when Congress declares war) or involuntarily (as when a foreign nation declares war on us). The limitation on the president’s power, Hamilton said, lies not in preventing him from prosecuting a war initiated by a hostile power, but in preventing him from making the decision the Constitution commits to the legislature. “The plain meaning” of the legislature’s authority to “declare war,” he said, “is that it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to war” (emphases omitted). In contrast, when “a foreign nation declares, or openly and avowedly makes war upon the United States,” a congressional declaration is unnecessary because “they are then by the very fact, already at war” (emphasis omitted).

Many decades later, Justice Joseph Story would recapitulate the founding era’s understanding of the location of the war-declaring power in his Commentaries. “[T]he chief magistrate,” he wrote, “ought not to be clothed with a power so summary, and, at the same time, so full of dangers to the public interest and the public safety.” Echoing Hamilton, he opined that this would “commit the liberties, as well as the rights of the people, to the ambition, or resentment, or caprice, or rashness of a single mind.” For the Framers, he said, those concerns were “decisive in confiding the power [to declare war] to Congress.”

The record of the founding era does not support Prof. Yoo’s hypothesis. And although there certainly have been presidents who have started wars without congressional permission, that is less proof of the Framers’ arrangement of the war-making power than it is ratification of the concerns that drove them to commit to Congress alone the power to commence hostilities.

Finally, there is this. A general consensus holds that the Framers modeled the presidency on George Washington. So the powers granted to the executive branch assume a president with Washington’s stellar character, his seriousness and selflessness, his sobriety and sound judgment. One can debate how far we have fallen from that ideal, but it should be nothing short of arresting that the same people who assumed Washington would be president also thought giving him alone the power to start a war would be too dangerous, too unprincipled, too ripe for abuse.

Mr. Gerry was right—it should be scandalous that a self-governing people have, as a de facto matter, given presidents the unilateral, unreviewable, and unconstitutional power to consume their lives and treasure in pursuit of goals that may or may not be in the nation’s interests. The Framers were too wise to give this power to one man alone. Rejecting that wisdom is a foolishness that belongs to nobody but us and an embarrassingly supine Congress.