Congress, War, and The Military

Congress, War, and The Military. Article I, section 8, of the U.S. Constitution states that Congress has the power to “provide for the common Defence,” “To declare War,” “To raise and support Armies,” and “To provide and maintain a Navy.” In theory, these enumerated grants of power give Congress extensive (but not unlimited) power over the preparation and use of U.S. military forces. In practice, Congress has found its ability to control the military, and especially its ability to dictate when and where military force will be used, challenged by the executive branch.

Declaration of War.

Congress's role in decisions to go to war has changed dramatically since the early days of the republic. Traditionally, congressional authorization was seen as necessary for any offensive use of military force, but following World War II presidents began to claim that their role as commander in chief gave them independent authority to order U.S. troops into combat. In 1973, Congress tried to reclaim its war powers by passing the War Powers Resolution, but the question of when (or even if) congressional authorization is needed to use force remains a continuing controversy.

The delegates to the constitutional convention clearly intended to lodge the war power with Congress rather than the president. They explicitly rejected a proposal to give the president the power to declare war, and while they designated the president as commander in chief, they saw the position simply as an office and not as an independent source of warmaking authority. The delegates expected that it would be the exclusive province of Congress to decide whether to move the nation from a state of peace to a state of war. Presidents were empowered to send U.S. troops into combat without congressional authorization only to repel sudden attacks on the United States.

The founders' views on the war power largely guided political practice over the next one 150 years. Congress passed formal declarations of war four times: the War of 1812 (1812); the Spanish‐American War (1898); World War I (1917); and World War II (1941). In the case of the Mexican War (1846–1848), Congress did not formally declare war but rather passed a resolution recognizing that a state of war existed. (The Civil War was undeclared because a declaration of war would have recognized the legitimacy of the Confederate government.) On other occasions, Congress authorized, or refused to authorize, the president to use force in situations short of full‐scale war. Moreover, in the 150 years before World War II, presidents repeatedly acknowledged the need for Congress to authorize offensive military actions.

Of course, the original intent of the founders was not always followed in practice. The U.S. military on occasion—the exact number is a matter of some dispute—used force without congressional sanction. Yet most of these incidents involved relatively inconsequential attacks on nonstate actors such as brigands and pirates, and they frequently occurred without the benefit of either congressional or presidential authorization. When presidents did violate congressional prerogatives, they typically drew sharp criticism. In 1848, the House of Representatives censured President James K. Polk for “unnecessarily and unconstitutionally” provoking war with Mexico.

The willingness of presidents to order the use of force against sovereign states on their own authority grew after World War II. When North Korea invaded South Korea in June 1950, President Harry S. Truman decided against asking Congress to declare war because he thought his critics might filibuster the resolution and thereby dilute its symbolic effect. Over the next four decades, presidents used Truman's precedent to argue that the commander‐in‐chief clause empowers them to send U.S. troops into combat without congressional authorization. In August 1964, Congress passed with only two dissenting votes the Tonkin Gulf Resolution, which approved President Lyndon B. Johnson's de cision to use force to prevent further Communist ag gression in South Vietnam. Although legal scholars differ over whether the resolution constituted an adequate legal basis for American military involvement in the Vietnam War, Johnson and Richard M. Nixon both argued that they had full authority to prosecute the war without congressional authorization. Congress repealed the resolution in January 1971, but American involvement in Vietnam continued.

The experience in Vietnam soured many in Congress on the wisdom of giving presidents wide berth to send U.S. troops into combat. In 1973 Congress passed, over President Nixon's veto, the War Powers Resolution. The resolution stipulates (among other things) that the president can send troops into situations of imminent or actual hostilities for no more than sixty days (ninety days in some circumstances) unless Congress authorizes the deployment.

During its first two decades in operation, the War Powers Resolution failed to check the president's use of force. Every president but Jimmy Carter and Bill Clinton denied its constitutionality, and successive administrations exploited ambiguities in the law to prevent the sixty‐day clock from starting. President Ronald Reagan did sign a 1983 bill that gave him authority to keep U.S. troops in Lebanon for eighteen months, but in doing so he repeated the claim that the War Powers Resolution is unconstitutional. (No court has ruled on the constitutionality issue.) The resolution did not figure in the invasions of Grenada in 1983 and Panama in 1989, the intervention in Haiti in 1994, or the peacekeeping missions in Somalia in 1992 or Bosnia in 1995.

In the case of the Persian Gulf War of 1991, President George Bush refused to invoke the War Powers Resolution, and he argued that he did not need congressional authorization to order U.S. troops to liberate Kuwait. Public opinion, however, eventually forced Bush to seek the approval of Congress. The authorizing resolution, which did not mention the War Powers Resolution, passed in the Senate with five votes to spare.

The circumstances in which presidents can initiate the use of military force without congressional authorization remain an open constitutional question. The federal courts have generally declined to hear lawsuits challenging the president's right to use military force, either on the grounds that such suits raise political and not legal questions or that it is up to Congress and not the courts to preserve congressional prerogatives. The net effect of the courts' reluctance to settle the issue has been to diminish the war powers of Congress and to enhance those of the president.

Conduct and Termination of War.

Congress has no direct constitutional authority over the conduct of war. The founders expected that once the United States was at war, the command and direction of the military would fall to the president, pursuant to his role as commander in chief. Indeed, to make clear that the president and not Congress would direct military operations, the delegates to the Constitutional Convention voted to substitute the phrase “to declare War” for the phrase “to make War” in the initial draft of the Constitution.

The Constitution fails to say which branch of government has the power to make peace, and there is no evidence that the delegates to the convention discussed the matter. As a matter of custom, presidents are not required to gain congressional approval for a peace settlement. President Nixon, for example, handled U.S. withdrawal from the Vietnam War through an executive agreement that was not submitted to Congress. In theory, Congress can use its appropriations power to terminate American participation in a war, though no such cases exist. Any formal peace treaty is not binding, of course, until the Senate gives its “advice and consent” by a two‐thirds majority.

Deployment of Troops.

The executive power and commander‐in‐chief clauses of the Constitution give the president broad authority to deploy troops overseas where combat is not anticipated. Congress itself recognized this authority when it passed the War Powers Resolution. Unlike the case of imminent or actual hostilities, the resolution places no time limits on presidential decisions to send U.S. troops overseas during peacetime, even if those troops are equipped for combat. Thus, President Clinton did not need congressional authorization for his decision in 1995 to send U.S. troops to Bosnia as peacekeepers. The one undecided constitutional question is whether Congress can, through its appropriations power, bar the president from deploying troops to a specific country or theater of operations. The federal courts have never decided the issue, and legal scholars are divided on the matter.

Military Alliances.

U.S. participation in formal military alliances is handled through treaties, which under the U.S. Constitution must be approved by two‐thirds of the Senate. Despite frequent claims that U.S. alliance commitments render Congress's war power obsolete, no alliance in which the United States is involved requires the automatic commitment of troops once war begins. Instead, most treaties of alliance follow the precedent set by the North Atlantic Treaty of 1949, which states that the signatories will take the actions they deem necessary under the treaty “in accordance with their respective constitutional processes.”

On occasion, and especially in the 1950s and 1960s, presidents have used executive agreements to commit the United States to defend other countries against aggression. Such agreements are not submitted for congressional approval, and in most cases the commitment was initially kept secret. These commitments are of dubious constitutional validity.

Appropriations Power.

Article 1, section 9, of the U.S. Constitution stipulates that “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” This appropriations power, in conjunction with the more specific constitutional charges to “raise and support Armies” and “provide and maintain a Navy,” gives Congress tremendous say over the budgets, structures, and duties of the armed forces. The Constitution forbids Congress from making defense appropriations more than two years in advance, and by custom appropriations laws are passed annually. In addition to using the appropriations power to determine how much the armed services may spend, Congress can use the appropriations power to bar the armed services from undertaking specified programs or operations. The Supreme Court has never struck down any use of the appropriations power as an unconstitutional infringement on executive authority, which is why it stands as Congress's foremost instrument for shaping military policy.

The funding of defense programs follows a twin‐track process on Capitol Hill. First, defense programs must be authorized, a process spearheaded in the Senate by the Armed Services Committee and in the House by the National Security Committee. Second, the funds for defense programs must be appropriated, a process spearheaded in each house by the Appropriations Committee. In theory, the authorizers focus on policy issues and the appropriators on budgetary issues, but in practice the line between the two is heavily blurred. The authorization requirement is rooted in congressional rules rather than the Constitution, and thus Congress may, if it so chooses, dispense with the requirement that defense programs be authorized before any money for them is appropriated.

The tremendous size of the U.S. military establishment means that as a practical matter Congress writes its defense authorization and appropriations bills in close consultation with the executive branch. By both tradition and law, the executive branch has some flexibility to reprogram the monies appropriated by Congress across defense accounts, as well as to spend funds to meet unanticipated military contingencies. At times, presidents have used their reprogramming authority and contingency funds to frustrate congressional efforts to dictate military policy.

Oversight.

Oversight of the U.S. military is a long‐standing congressional power that dates back to the House of Representatives' inquiry into Gen. Arthur St. Clair's disastrous defeat at the hands of the Wabash Indians in 1791. Most oversight activities are conducted by standing committees such as the Senate Armed Services Committee and the House National Security Committee. Special congressional panels, such as one convened to investigate the Iran‐Contra Affair, may also be convened to hold hearings on matters of special interest.

The Constitution gives Congress wide powers over the American military. In many respects, though, Congress finds its ability to exercise these powers frustrated by what Alexander Hamilton in Federalist No. 70 called the president's inherent advantages of “decision, activity, secrecy, and dispatch.” The ability of Congress to override these inherent advantages depends ultimately on the wisdom and the political popularity of what the president seeks to accomplish.
[See also Commander in Chief, President As; Constitutional and Political Basis of War and the Military; Supreme Court, War, and the Military.]

Bibliography

A. D. Sofaer , War, Foreign Affairs, and Constitutional Power: The Origins, 1976.
F. D. Wormuth and and E. B. Firmage , To Chain the Dog of War: The War Power of Congress in History and Law, 1986; 2nd ed., 1989.
M. J. Glennon , Constitutional Diplomacy, 1990.
W. C. Banks and and P. Raven‐Hansen , National Security Law and the Power of the Purse, 1994.
J. M. Lindsay , Congress and the Politics of U.S. Foreign Policy, 1994.
L. Fisher , Presidential War, 1995.

James M. Lindsay