In Defense of the President’s War Powers

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Since the founding of the Republic, the President and Congress have battled over how the power to initiate armed conflict on behalf of the United States of America ought to be balanced. Today, these conflicts manifest themselves primarily in political battles over the limitations on executive war powers, such as whether President Obama needs congressional authorization to conduct airstrikes against ISIL in Iraq and Syria. Many agree with syndicated columnist George Will that “the Constitution requires what prudence strongly recommends—congressional authorization” to conduct airstrikes against the Islamic State. Will is one of many pundits, constitutional scholars, and members of Congress who believe that the Constitution grants the President very restrained and limited powers to initiate armed conflict, while others even criticize Congress for failing to formally declare war since the Second World War. Despite good intentions, both views are misguided. The Constitution gives the President the power to initiate military operations short of war without congressional approval and also gives Congress the ability to authorize wars by means other than a formal declaration.

The first view is that the President must seek congressional approval for almost every instance of initiating armed conflict. According to this theory, Article 1, Section 8 of the U.S. Constitution, which gives Congress the power “to declare War,” establishes Congress’ almost sole constitutional power to initiate war on behalf of the United States through explicit congressional authorization. These authorizations, under this view, can take the form of a resolution formally declaring war against another state, an authorization for the use of military force, or other clear congressional approval of military actions or war. All of these serve as de facto declarations of war. Though Article 2, Section 2 of the U.S. Constitution states, “The President shall be Commander in Chief of the Army and Navy of the United States,” this commander-in-chief power, according to constitutional scholar Michael Paulsen, “does not include a power to declare war on another nation, entity, or group” without Congress’ explicit approval. This reading is based on seeing ‘declare’ as meaning “to initiate by word or action a legal condition of war,” and on viewing the location of the clause within the enumerated lawmaking powers of Congress as indicating that the Founders were taking a power historically understood to be an executive power of the English Monarch and instead deliberately putting it in the hand of Congress. Further support is given by section 10 of the same article by pointing out that Congress, not the executive, is the branch responsible for giving a state permission to engage in war, establishing further congressional primacy to initiate war. By using the Constitution’s original text to directly infer the Founder’s intent, this view constructs a conception of war powers in which Congress is the sole institution able to initiate armed conflict on behalf of the United States.

In contrast to that view, I argue that the commander in chief clause of the U.S. Constitution gives the President the power to initiate and conduct limited military operations that do not bring the United States into a state of war without explicit approval from Congress. Limited military operations can be distinguished from a state of war based on the differences in their intensity, duration, and possibility of escalation. Intensity of a conflict represents the concentration of the use of force during that conflict. Duration is simply how long the operation lasts, with longer conflicts more likely to be wars. Finally, the possibility of escalation is how likely it is that a military operation will eventually result in a state of war; for example, the airstrike on the presidential palace in Tripoli by the U.S. Air Force in 1986 in response to the Berlin Discotheque bombing did not lead to a larger conflict, whereas the same strike on the Kremlin would have ended very differently. For these purposes, then, a military action is simply an offensive or defensive act by the U.S. military such as an airstrike or special operations mission that is limited in intensity, duration, and its potential for escalation to a state of war. For example, President Obama’s airstrikes against ISIL should not be classified as putting the U.S. in a state of war because the intensity of the strikes is small (only a few strikes a day), the airstrikes have lasted just a few months, and they are against a non-state actor with little capacity to commit acts of war against the U.S. in retaliation. A state of war, however, is much more expansive and exceeds the bounds of a military action because it is a condition in which the United States is actively fighting against a state or non-state actor for a prolonged period of time in which there is a capacity by both sides to inflict significant casualties on the other side. The Persian Gulf War, for instance, qualifies since it was intense, involving almost a million U.S. troops and a brutal aerial campaign, and created an obvious escalation in hostilities against a state (Iraq), with both U.S. and Iraqi forces having the ability to cause large numbers of casualties.

This distinction exists because the Constitution creates a clear difference between a state of war requiring congressional approval and military actions that the President can undertake unilaterally. Important to note is the reasoning behind how the Founders divided up war powers in the Constitution. The founders both heeded Blackstone’s declaration that “the military power must be trusted in the hands of the” head of state “to protect the weakness of individuals by the united strength of the community” led by the executive and at the same time sought to create an executive that did not have the powers of a king by giving many of a king’s powers to the other branches of government. However, as Alexander Hamilton states in Federalist 70, “the necessity of an energetic Executive” is essential and a “leading character in the definition of good government.” Because of the weaknesses of the Articles of Confederation, a strong executive, especially in foreign affairs, was highly sought after. Hamilton goes on to say in Federalist 74 that “The direction of war implies the direction of the common strength…[which] forms a usual and essential part in the definition of the executive authority” because the President, as commander in chief, lends a confident and steady hand to the conduct of war and foreign affairs by directing the use of American military force and diplomacy abroad. In this context, the framers created an executive with wide war powers that included the ability to initiate limited military actions.

The argument that, regardless of the Constitution creating a strong executive, Congress’ power to declare war includes the power to initiate all conflicts also falls short because of the context in which the clause was drafted. As constitutional scholar John Yoo argues, “When the Constitution was written… a declaration of war served diplomatic notice about a change in legal relations between nations” and “had little to do with launching hostilities,” especially since Great Britain, the inspiration for this power, only declared war once before a conflict began in the century before the Constitution was written, despite fighting several major wars. It was clear to the Founders, then, that Congress’ power to declare war did not mean that all hostilities had to be approved by Congress to commence; however, the legal meaning of declaring war still required that it be done when a state of war existed. Instead, Congress’ role is to declare, either formally or de facto, that a state of war existed and to initiate a state of war, something beyond the scope of executive powers to command the military. At the Constitutional Convention, James Madison even recorded that the Convention deliberately changed the wording of Congress’ war powers from the power “to make war” to “to declare war,” making it clear that declaring war was viewed as a much more limited power than making war since that change transferred many war powers to the executive and left Congress only able to initiate a state of war and fund the armed forces. Since the Constitution, in Article 1, Section 10, explicitly states, “No State shall…engage in war,” the Founders clearly knew how to prevent an institution of government from initiating armed hostilities, and they chose not to do so in the case of the executive.

By creating a strong executive with command over the armed forces and giving Congress power to initiate only wars that were necessary to declare for the purposes of international relations, the Founders formed an executive with the flexibility to respond to foreign threats through unilateral military actions. Military actions fall under the President’s power as commander in chief because of the President’s purview over conducting war and overseeing the country’s foreign relations. Chief Justice John Marshall even remarked in 1800 that “The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations” because the Constitution created an “[executive] department . . . entrusted with the whole foreign intercourse of the nation.” Historical precedent also supports a broad view of presidential war powers because, since the Revolution, the U.S. has used force abroad over 100 times, and many of those instances did not receive congressional approval. Presidents have ordered our armed forces to do everything from preventing genocide in the Balkans to overthrowing corrupt regimes in Central America through unilateral military actions, and Congress funded and supported almost all of them without protest. While practice alone is not sufficient to demonstrate the nature of constitutional powers, it does strongly suggest that a more expansive view of presidential power is correct. It is also important to note how war has changed since the country was founded. In 1800, the U.S. did not have the ability to order limited military strikes halfway around the world or send special operations forces to conduct limited raids in a far away country like America does today. The technological advances of war have made limited military actions that do not constitute a state of war increasingly possible. Through the lens of the Constitution, modern limited military actions are clearly supported by historical precedent and an understanding of the Founder’s conception of the executive branch.

An alternative view critical of Congress sees almost all wars as requiring a formal declaration of war by Congress. Supporters of this view posit that congressional authorization was not sufficient in the Korean or Vietnam Wars and should have instead taken the form of a formal declaration of war. The phrase ‘to declare war’ in the Constitution is given literal meaning, for this view requires a formal declaration of war in any major conflict (i.e. where a state of war exists). Authorizations for the use of military force by Congress are not sufficient, and supporters of this view see wars conducted under these types of congressional authorization as illegitimate.

This view on the nature of Congress’ war powers is misguided because it fails to acknowledge the original understanding of the Constitution and historical precedent. The actions of the Founders while they occupied the White House and positions of power in the first days of the republic can help illuminate their original intent. While in office, President Thomas Jefferson initiated the Barbary War, a conflict in the Mediterranean against Ottoman pirates that terrorized American shipping, without a congressional declaration of war. This war was authorized by Congress both through appropriations and an authorization for the use of force, but not by a formal declaration of war. Earlier, President Adams conducted the so-called Quasi War against France in response to attacks on American shipping from 1798 to 1800. The war was authorized by a series of congressional acts pursuant to the war powers clause and the clause related to letters of marque and reprisal, but Congress never formally declared war. The Supreme Court, however, declared in Bas v. Tingy (1800) that Congress had authorized a “limited partial war” by virtue of its actions. Both examples illustrate that the Founders clearly did not see a formal declaration of war as necessary to go to war. Historically, both Congress and the President have supported this view. Since the Constitution was ratified, the United States has only formally declared war eleven times. This leaves the vast majority of U.S. military engagements as being undeclared wars, and Congress and the President clearly did not see it as necessary to formally declare war in every case. In fact, every conflict since World War 2 has been undeclared, including America’s longest war in Afghanistan, two invasions of Iraq, and interventions everywhere from Vietnam to Haiti or Eastern Europe. Again, while historical precedent is not sufficient to demonstrate the nature of constitutional powers, it does strongly suggest that a formal declaration of war has never been nor ever will be necessary for the United States to go to war.

As turmoil in the beginning of the 21st century has increasingly caused the United States to become embroiled in conflicts around the globe, the proper separation of war powers based on the Constitution has become important to American foreign policy and domestic politics. Congress and the President are both given powers relating to war, but it is ultimately the President who, as the elected leader of the United States, commands our armed forces and is held accountable for the position of the U.S. in the world. The President must maintain his wide powers to conduct military actions in order to protect American interests around the world.

Connor Pfeiffer is a freshman from San Antonio, Texas, majoring in Politics. He can be reached at connorp@princeton.edu.

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