Congressional War Powers
CONGRESSIONAL WAR POWERS
The Constitution assigns the power to declare war solely to the Congress, one of the wisest of the many checks and balances built into the American political system. Throughout American history, however, Presidents have committed acts of war without congressional authorization. The question of where to assign the power to initiate and conduct war was thoroughly debated during the framing of the Constitution. The outcome of that debate was a document that clearly did not give the President unlimited war powers but in fact separated the power to conduct war from the power to initiate war.
The Constitution grants Congress the power to issue a declaration of war and to "grant letters of Marque and reprisal." There is no question that the original intent of the Framers of the Constitution was to vest in the Congress the complete power to decide on war or peace, with the sole exception that the President could respond to sudden attack on the United States without congressional authorization. During the constitutional convention of 1787, the debates centered on an original draft of the war power providing that "the legislature of the United States shall have the power … to make war." One member of the convention, charles pinckney, opposed giving this power to Congress, claiming that its proceedings would be too slow; pierce butler said that he was "voting for vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it." Butler's motion received no second, however.
james madison and elbridge gerry, meanwhile, were not satisfied with the original wording, that the legislature be given the power to make war. They moved to substitute "declare" for "make," "leaving to the Executive the power to repel sudden attacks." The meaning of this motion, which eventually was carried by a vote of seven states to two, was clear. The power to initiate war was left to Congress, with the reservation from Congress to the President to repel a sudden attack on the United States. As thomas jefferson explained in 1789, "We have already given … one effectual check to the dog of war by transferring the power of letting him loose, from the executive to the legislative body, from those who are to spend to those who are to pay."
Acts of war, acts of reprisal, and acts of self-defense—all have been taken by past Presidents, but seldom without a rationalization of the legal implications of their actions that reflected recognition of the necessity of congressional authorization of all presidential acts of war except self-defense. At a time of national crisis, notably during the civil war, the President has acted illegally and depended on Congress to ratify his action after the fact. In the latter half of the twentieth century, however, a major change in the concept of the war power began to be propounded. Beginning with the korean war and the vietnam war, some presidents, congressmen, and publicists claimed for the executive the power to initiate war without the consent of Congress.
Covert war, as we have come to know it, grew out of the United States' experiences in world war ii. Two factors have combined to encourage covert action and covert war. First, nuclear weapons—forces of utter destruction—have deterred more overt and massive forms of violence. Second, the intensity of the ideological and geopolitical struggle between the United States and the Soviet Union nevertheless assured that violence, albeit covert, would continue. Shortly after World War II, in January 1946, President harry s. truman issued a directive establishing the Central Intelligence Group, the precursor of the Central Intelligence Agency. Previously, no nonmilitary covert operations group had existed in the United States during peacetime. Later intelligence groups would build on this meager institutional foundation, often without questioning either the appropriateness of its methods or the basic assumptions behind its organization.
The Constitution commits the entire power to decide for war or peace to Congress, not the President, with the exception noted above—in the event of sudden attack. No action of covert war is likely to fit within that narrow exception. The commander-in-chief clause gives that President no additional power to commit forces of the United Stater to war or acts of war when the nation is at peace. Only Congress is empowered to change this condition.
The Constitution's grant to Congress of the power to grant "letters of Marque and reprisal" covers most of what we think of as covert war. Originally a letter of marque merely authorized crossing into a foreign state to obtain redress for wrongs inflicted by a foreigner, and a letter of reprisal permitted the use of force to secure compensation for an unlawful taking of property or goods within the territorial jurisdiction of the sovereign. When combined, a letter of marque and reprisal permitted a particular person to seize property or even foreign citizens who refused to redress injuries they caused. By the eighteenth century, letters of marque had evolved into means of legitimating acts of war against other sovereign states by private parties. Likewise, reprisals developed into public acts of war against another state or citizens of another state in retaliation for an injury for which the state is held responsible. Under international law a reprisal is legal only if the acts are responsive and proportional to previous hostile acts of another state and the reprisal is first preceded by unsuccessful attempts at a peaceful resolution.
The war clause in its completeness, then, grants to Congress all power to decide on war, including both public and private or covert war, declared or undeclared. The Constitution grants no power to the President to wage private war against states with whom the nation is at peace by hiring modern mercenaries, pirates, or privateers without the express authorization of Congress. Nor does the President or the National Security Council have the authority to privatize the conduct of American foreign policy in the sale of arms or transfer of money. Absent a direct attack on the United States, a decision to go to war is constitutional only when it is publicly arrived at by congressional debate.
Edwin B. Firmage
Lobel, Jules 1986 Covert War and Congressional Authority: Hidden War and Forgotten Power. University of Pennsylvania Law Review 134:1035–1110.
Wormuth, Francis D. and Firmage, Edwin B. 1989 To Chain the Dog of War: The Power of Congress in History and Law, 2nd ed. Urbana: University of Illinois Press.