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Constitutional and Political Basis of War and the Military

Constitutional and Political Basis of War and the Military. When the framers met in Philadelphia to draft the U.S. Constitution, they were aware that existing models of government placed the war power squarely in the hands of the king. John Locke, William Blackstone, and other writers on government regarded the power to go to war as a monarchical prerogative. But when America declared its independence from England, all executive powers were placed in the Continental Congress. The first national constitution, the Articles of Confederation, also concentrated all powers of government in a legislative branch.

By the time the Constitution was completed in Philadelphia, many of the executive prerogatives envisioned by Locke and Blackstone had been vested in Congress, such as the power to declare war, to raise and regulate fleets and armies, and the power over foreign commerce. Unlike Blackstone's model, the president had no power to issue letters of marque and reprisal (authorizing private citizens to undertake military actions). That power was reserved to Congress. Other powers, including treaties and the power to appoint ambassadors, were shared with the Senate.

The reason for breaking decisively with Locke and Blackstone is clearly explained in the debates at Philadelphia, the ratification debates in the states, and The Federalist Papers written by Alexander Hamilton, John Jay, and James Madison. James Wilson told his colleagues in Philadelphia that it was incorrect to consider “the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of a Legislative nature. Among others that of war & peace &c.” In Federalist No. 69, Hamilton pointed out that the British king “is the sole possessor of the power of making treaties,” whereas the U.S. Constitution shared that power with the Senate. The power of the king, he said, “extends to the declaring of war and to the raising and regulating of fleets and armies,” powers now entrusted to Congress. Madison later remarked: “The constitution supposes, what the History of all Govts demonstrates, that the Ex[ecutive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ative].”

The framers empowered the president to be commander in chief, but that title relates to responsibilities authorized by Congress. The language in the Constitution reads: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Congress, not the president, does the calling. Article 1 gives to Congress the power to provide “for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel invasions.”

The debates at the Philadelphia convention include a revealing discussion of Congress's power to declare war. The early draft empowered Congress to “make war.” Charles Pinckney, who expected Congress to meet only once a year, objected that legislative proceedings “were too slow” for the safety of the country in an emergency. Madison and Elbridge Gerry recommended that “declare” be substituted for “make,” leaving to the president “the power to repel sudden attacks.” Their motion carried.

The president's authority was carefully constrained. The power to repel sudden attacks represented an emergency measure that allowed the president, when Congress was not in session, to take actions necessary to repel sudden attacks either against the mainland of the United States or against American troops abroad. It did not authorize the president to take the country into full‐scale war or mount an offensive attack against another nation.

Remarks on the Madison‐Gerry amendment clarify the framers' intent. In support of the amendment, Roger Sherman said that the president should be able “to repel and not to commence war.” George Mason spoke “ag[ain]st giving the power of the war to the Executive, because not [safely] to be trusted with it… He was for clogging rather than facilitating war.” At the Pennsylvania ratification convention, James Wilson expressed the prevailing sentiment that the system of checks and balances “will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.”

Madison insisted that the power of commander in chief be kept separate from the power to take the nation to war: “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government, analogous to that which separates the sword from the purse, or the power of executing from the power of enacting laws.”

Early Precedents.

Presidential use of force during the first few decades conformed closely to the expectations of the framers that the decision to take the country to war was lodged solely in Congress. Whether involving military actions against Indian tribes, the Whiskey Rebellion, or the Undeclared Naval War with France from 1798 to 1800, presidential actions were based on authority granted by statute. Two decisions by the Supreme Court in 1800 (Bas v. Tingy) and 1801 (Talbot v. Seeman) recognized that Congress could authorize hostilities either by a formal declaration of war or by a statute that authorized an undeclared war. In the second case, Chief Justice John Marshall wrote for the Court: “The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry.” The Barbary Wars during the administrations of Thomas Jefferson and James Madison were repeatedly authorized by Congress. The War of 1812 against England was declared by Congress.

The power of the president as commander in chief is at its low point when there is no standing army and Congress must act to raise troops. But when a standing army exists, ready to move at the president's command, the balance of power can shift decisively. The capacity of the president to put the nation at war is illustrated by the actions of President James K. Polk in 1846, when he ordered Gen. Zachary Taylor to occupy disputed territory on the Texas‐Mexico border. The order provoked a clash between American and Mexican soldiers, prompting Polk to tell Congress a few weeks later that “war exists.” After a few days of debate, Congress declared war against Mexico, recognizing that “a state of war exists.” In 1848 the House of Representatives censured Polk's actions as a war “unnecessarily and unconstitutionally begun by the President of the United States.”

One of the members of the House who voted for this censure was Abraham Lincoln, who some years later would exercise military force during the Civil War without first obtaining authority from Congress. In April 1861, with Congress in recess, he issued proclamations calling forth the state militia, suspending the writ of habeas corpus, and placing a blockade on the rebellious states. However, Lincoln never claimed that he had full authority to act as he did. He conceded to Congress that he had probably overstepped the constitutional boundaries established for the president and thus needed congressional sanction. Legislators debated this issue at length, eventually passing legislation “approving, legalizing, and making valid all the acts, proclamations, and orders of the President, etc., as if they had been issued and done under the previous express authority and direction of the Congress of the United States.” Presidents have used force unilaterally a number of times, but the actions were relatively small in scope and duration.

Aside from Polk's initiatives in Mexico and Lincoln's emergency actions during the Civil War, the power of war remained in the hands of Congress during the nineteenth century, and the first half of the twentieth. The Spanish‐American War of 1898, World War I, and World War II were all formally declared by Congress.

The UN Charter and Korea.

In June 1950, President Harry S. Truman ordered U.S. troops to Korea without first requesting congressional authority. For legal footing he cited resolutions passed by the United Nations Security Council, but the history of the UN Charter and its implementing legislation demonstrates that UN machinery is not a legal substitute for congressional action. If it were, the president and the Senate, through treaty action, could strip from the House of Representatives its constitutional role in deciding questions of war.

In adopting the Charter, all parties in the executive and legislative branches understood that the decision to use military force through the United Nations required prior approval from both Houses of Congress. In response to any threat to the peace, breach of the peace, or act of aggression, the Security Council may decide under Article 41 of the Charter to recommend “measures not involving the use of armed force.” If those measures prove inadequate, Article 43 provides that all members of the United Nations shall undertake to make available to the Security Council, “on its call and in accordance with a special agreement or agreements,” armed forces and other assistance. These agreements spell out the numbers and types of forces, their degree of readiness and general location, and the nature of the facilities and assistance to be provided. Article 43 further states that the special agreements shall be ratified by each nation “in accordance with their respective constitutional processes.”

The meaning of constitutional processes within the U.S. system was defined by Congress when it passed the UN Participation Act of 1945. The statute clearly provides that special agreements “shall be subject to the approval of the Congress by appropriate Act or joint resolution.” The legislative history of the Participation Act underscores the need to protect congressional interests by obtaining legislative approval in advance.

Notwithstanding the UN Charter and the Participation Act, President Truman acted militarily in Korea without ever coming to Congress for approval. He circumvented Congress by never entering into special agreements with the Security Council. The very procedural safeguard carefully enacted into law to protect the constitutional prerogatives of Congress thus amounted to nothing. No special agreement has ever been entered into under the UN Charter, although there have been many UN military actions.

From the War Powers Resolution to Bosnia.

In an effort to restore its powers over war and peace, Congress enacted the War Powers Resolution of 1973. The pur‐pose was to provide for the “collective judgment” of both Congress and the president before U.S. troops are sent into combat. Because of ambiguities in the statute and Congress's failure to protect its institutional interests, presidents from Gerald Ford to Bill Clinton have taken a range of military actions with little involvement by Congress.

Military actions in the years immediately after the War Powers Resolution were modest, ranging from President Ford's evacuation of Americans and foreign nationals in Southeast Asia to efforts by President Jimmy Carter to rescue American hostages in Iran. Congressional efforts to restrict the Reagan administration's assistance to the Contras in Nicaragua caused a major clash between executive and legislative branches, beginning in 1982. Although the administration testified repeatedly that it was complying with these statutory directives, executive branch officials actively solicited funds from private parties and from foreign governments to assist the Contras. When these activities surfaced in November 1986, as the Iran‐Contra Affair, Congress passed several statutes to tighten controls over covert operations.

Another confrontation occurred in 1990 when President Bush claimed that he could take offensive action against Iraq, after its invasion of Kuwait, without authorization from Congress. The Bush administration regarded a UN Security Council resolution of 29 November 1990 as sufficient legal basis. On 8 January 1991, President Bush decided to ask Congress to pass legislation supporting his policy in the Persian Gulf. A day later, however, when reporters asked him whether he needed a resolution from Congress, he replied: “I don’t think I need it… I feel that I have the authority to fully implement the United Nations resolution.” A potential constitutional crisis was averted when Congress debated, and passed, legislation authorizing the military action against Iraq.

President Clinton repeatedly insisted that he could use military force against other nations without seeking authority from Congress. While threatening to invade Haiti in 1994, he encouraged the UN Security Council to adopt a resolution “inviting” all states, particularly those in the region of Haiti, to use “all necessary means” to remove the military leadership in that island. By a vote of 100 to zero, the Senate passed a “sense of the Senate” amendment stating that the Security Council resolution “does not constitute authorization for the deployment of United States Armed Forces in Haiti under the Constitution of the United States or pursuant to the War Powers Resolution.”

A few weeks later, Clinton “welcomed” the support of Congress for an invasion of Haiti, adding: “Like my predecessors of both parties, I have not agreed that I was constitutionally mandated to get it.” In a televised address in September, he told the American public that he was prepared to use military force to invade Haiti, referring to the Security Council resolution as authority, and stating his willingness to lead a multilateral force “to carry out the will of the United Nations.” Several votes by the House and the Senate to deny funds for the contemplated military action failed. An invasion became unnecessary when former president Jimmy Carter negotiated an agreement in which the military leaders agreed to step down to permit the return of ousted President Jean‐Bertrand Aristide. Both Houses of Congress resolved that “the President should have sought and welcomed Congressional approval before deploying United States Forces to Haiti.”

President Clinton also used air strikes against the Bosnian Serbs and sent 20,000 ground troops to Bosnia‐Herzegovina without obtaining authority from Congress. In 1993, he acted in concert with the United Nations and NATO to authorize humanitarian airdrops of food, helped to enforce the no‐fly zone (a ban on unauthorized flights) over Bosnia‐Herzegovina, and supported an arms embargo on that region. The next year, while contemplating air strikes in Bosnia, he looked not to Congress for authority but solely to the Security Council and to NATO. In response to a reporter's question whether he had decided to use air strikes to retaliate against shellings in Sarajevo, Clinton referred to UN and NATO authority. At no time did he acknowledge a need to obtain congressional authorization.

In late February 1994, U.S. jets shot down four Serbian bombers over Bosnia. The United Nation and NATO, not Congress, became the authorizing bodies. Other air strikes occurred throughout 1994 and 1995. At the end of August 1995, after NATO aircraft had carried out the war's biggest air raid, Clinton announced that the bombing attacks “were authorized by the United Nations.” In proposing the introduction of U.S. ground troops into Bosnia, he welcomed the “support” of Congress without conceding that he needed its authority. Congress passed several nonbinding resolutions to withhold funds for ground troops to Bosnia unless the president first obtained legislative approval, but never employed binding statutory language. In the end, President Clinton dispatched the troops to Bosnia.

Presidential war power has expanded dramatically since 1950 because of a combination of factors: presidents pressing their powers to the limit and the passivity and acquiescence of Congress. The courts have tended to remain above the fray when members of Congress have objected that presidents have violated the War Powers Resolution or the Constitution. Federal judges have regularly told legislators that if they want to check the president, they must exercise the considerable powers within their arsenal. They should not expect courts to do Congress's job for it. That message is well stated and soundly based, but legislators have consistently failed to protect their institutional prerogatives.

Members of Congress continue to use the power of the purse to direct the president in foreign affairs and war, but increasingly seem to lack the institutional self‐confidence to function as a coequal branch. In 1973, Congress succeeded in invoking its power of the purse to end the Vietnam War, but only after escalating financial costs and military casualties tore the country apart. At various points legislators could have used the purse to constrain or terminate the war, but generally allowed the president to define the scope of hostilities. Only sustained public opinion forced Congress to vote for a cutoff in funds. Efforts to use the power of the purse to prevent military operations in Haiti and Bosnia came to naught.

Arguments about presidential war power that would have been astonishing fifty years ago are now routinely accepted as plausible, credible, and well within the bounds of reason. The political and constitutional costs are heavy. Instead of the two branches working in concert to create a program that has broad public support and understanding, presidents unilaterally offer various forms of economic and military assistance to other countries, consigning legislators to the backseat. In this era of executive hegemony it may take a major crisis to restore respect for the constitutional allocation of war‐making authority, and the principle of checks and balances.
[See also Civil‐Military Relations; Commander in Chief, President as; Congress, War, and the Military; Supreme Court, War, and the Military.]

Bibliography

Thomas M. Franck, ed., The Tethered Presidency: Congressional Restraints on Executive Power, 1981.
Francis D. Wormuth and and Edwin B. Firmage , To Chain the Dog of War: The War Powers of Congress in History and Law, 1989.
Michael J. Glennon , Constitutional Diplomacy, 1990.
Harold Hongju Koh , The National Security Constitution: Sharing Power After the Iran‐Contra Affair, 1990.
Louis Henkin, ed., Foreign Affairs and the Constitution, 1990.
Theodore Draper , A Very Thin Line: The Iran‐Contra Affairs, 1991.
John Hart Ely , War and Responsibility, 1993.
William C. Banks and and Peter Raven‐Hansen , National Security Law and the Power of the Purse, 1994.
Gary M. Stern and Morton H. Halperin, eds., The U.S. Constitution and the Power to Go to War, 1994.
Louis Fisher , Presidential War Power, 1995.
David Gray Adler and Larry N. George, eds., The Constitution and the Conduct of American Foreign Policy, 1996.

Louis Fisher

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