War Powers

War Powers involve the power to deploy U.S. troops abroad in hostile situations. Two constitutional provisions are central: Article I, section 8, clause 11, which gives Congress the power to “declare war”; and Article II, section 2, clause 1, which designates the president as commander in chief of the armed forces.82

United States troops have been deployed abroad in five declared wars: the War of 1812, the Mexican War (1846–1848), the Spanish‐American War (1898), World War I (1917–1918), and World War II (1941–1945). In addition to these, more than 150 military actions of varying dimensions have been undertaken without a declaration of war. In Bas v. Tingy (1800), the Supreme Court accepted that Congress can authorize limited hostile engagements without a congressional declaration of war. Later precedent supports presidential use of troops for defensive purposes. In the Prize Cases (1863), a sharply divided Court upheld President Abraham Lincoln's blockade of southern ports at the start of the Civil War. Moreover, presidents have successfully asserted power to deploy troops to protect Americans' lives and property.

In the twentieth century, the principal question has become the extent to which the president, without a declaration of war, can use troops in a nondefensive situation to further the nation's interests. In several instances, presidents have used troops without advance legislative authorization, including the Korean War (1950); the American incursion into the Dominican Republic (1965); the Vietnam War (the 1960s); the rescue of the crew of an American vessel, the Mayaguez (1975); the attempted rescue of hostages in Iran (1980); actions in Lebanon (1983) and Grenada (1983); the bombing of targets in Libya (1986); actions to protect oil tankers in the Persian Gulf from attack (1987); the overthrow of General Manuel Noriega in Panama (1989); the buildup of American forces in Saudi Arabia (1990) leading to war with Iraq (1991); and the invasion of Iraq to topple the regime of Saddam Hussein (2003). In both Iraq wars, the presidents did secure prior congressional approval before commencing hostilities. The chief legislative initiative in this area is the War Powers Act of 1973, which was passed over President Richard Nixon's veto. It requires the president to consult with Congress about possible troop deployment, and it limits use of troops to sixty days without specific legislative authorization. No president has conceded the validity of the act, and in many circumstances presidents since Nixon have argued that the act's requirements do not apply to specific situations.

Increasingly, this area is dominated by a struggle between a vision of presidential dominance and an insistence on checks and balances involving Congress as a key actor. Courts have tended to avoid the issue, treating the question as inappropriate for judicial resolution under the political question doctrine.

See also Inherent Powers; Presidential Emergency Powers; Separation of Powers; War.

Thomas O. Sargentich