The War Power

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THE WAR POWER

The constitutional boundaries of the war power are determined only marginally by court decisions. The principal forces that define military activities are nonjudicial: presidential decisions to initiate force, congressional decisions to acquiesce or resist, and public pressure for and against military actions. The momentous decision to commit the nation’s blood and deplete its treasury takes place almost exclusively outside the courts. This pattern is evident throughout U.S. history.

The framers of the U.S. Constitution studied models of government in Europe that placed the war power securely in the hands of the monarch. Breaking decisively with that tradition, they deliberately transferred the power to initiate war from the executive to the legislature. As the framers were completing their labors at the constitutional convention, Thomas Jefferson wrote to his friend, James Madison: “We have already given in example 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.”¹

The overriding principles endorsed by the framers were collective judgment, shared power in foreign affairs, and “the cardinal tenet of republican ideology that the conjoined wisdom of many is superior to that of one.”² However, those values have been challenged, especially in the years following World War II, by some scholars who would vest in the President an independent power to commit forces into hostilities.³

In deciding on the allocation of the war power, the framers reviewed—and rejected—the models of John Locke and William Blackstone. Locke’s Second Treatise on Civil Government (1690) spoke of three branches of government: legislative, executive, and “federative.” For Locke, the federative power (what we call foreign policy today) was “always almost united” with the executive. Separating the executive and federative powers, he warned, would invite “disorder and ruin.”⁴

A similar model appears in Blackstone’s Commentaries (1771). He defined the king’s prerogative as “those rights and capacities which the king enjoys alone,” which today’s advocates of presidential power regard as “inherent” executive powers. The king had the right to make war or peace, make treaties, issue letters of marque and reprisal (authorizing private citizens to undertake military actions), and he was vested with “the sole power of raising and regulating fleets and armies.”⁵ Those powers are either vested entirely with Congress under Article I or shared between the President and the Senate, as with treaty-making.

When America declared its independence from England in 1776, the framers vested all executive powers in the Continental Congress. They did not provide for a separate executive. The ninth article of the first national constitution, the Articles of Confederation, provided: “The United States, in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war.” The single exception to that principle lay in the sixth article, which allowed states to engage in war if invaded by enemies or when threatened with invasion by Indian tribes.

The debates at the Philadelphia convention underscore the framers’ intention that monarchical war prerogatives would have no home in America. On June 1, 1787, Charles Pinckney said he was for “a vigorous Executive but was afraid the Executive powers of [the existing] Congress might extend to peace & war &c which would render the Executive a Monarchy, of the worst kind, towit an elective one.” John Rutledge wanted the executive power placed in a single person, “tho’ he was not for giving him the power of war and peace.” James Wilson also preferred a single executive, but “did not 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.”⁶

Edmund Randolph worried about executive power, calling it “the foetus of monarchy.” The delegates to the Philadelphia convention, he said, had “no motive to be governed by the British Government as our prototype.” Wilson agreed that the British model “was inapplicable to the situation of this Country; the extent of which was so great, and the manners so republican, that nothing but a great confederated Republic would do for it.” James Madison later remarked: “The constitution supposes, what the History of all Govts demonstrates, that the Ex. 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.”⁷

Fear that the President would lead the nation into war “in order to achieve personal glory” figured prominently in the framers’ thinking.⁸ In Federalist No. 4, John Jay cautioned that “absolute monarchs will often make war when their nations are to get nothing by it, but for purposes and objects merely personal, such as a thirst for military glory, revenge for personal affronts, ambition, or private compacts to aggrandize or support their particular families or partisans.”

Although the President was made Commander in Chief, it was left to Congress to raise and regulate fleets and armies. The extent of the break with Locke and Blackstone is set forth clearly in The Federalist Papers. In Federalist No. 69, Hamilton explained that the President has “concurrent power with a branch of the legislature in the formation of treaties,” whereas the British king “is the sole possessor of the power of making treaties.” The royal prerogative in foreign affairs was deliberately shared with Congress, he noted. Hamilton contrasted the distribution of war powers in England and in the American Constitution. The power of the King “extends to the declaring of war and to the raising and regulating of fleets and armies.”

The framers recognized that in emergency situations, the President might have to use military force to repel sudden attacks without first obtaining authority from Congress. The early draft of what became the Declare War Clause empowered Congress to “make war.” Charles Pinckney objected that legislative proceedings “were too slow” for the safety of the country in an emergency since he expected Congress to meet but once a year. Madison and Elbridge Gerry moved to insert “declare” for “make,” leaving to the President “the power to repel sudden attacks.” Their motion carried 7 to 2. After Rufus King explained that “make” war might be understood to “conduct” war, which was “an Executive function,” Connecticut changed its vote, and the final tally was 8 to 1.⁹

The President’s war power here was defensive, not offensive. Reactions to the Madison-Gerry amendment reinforce the narrow grant of authority to the President. Pierce Butler wanted to give the President the power to make war, arguing that he “will have all the requisite qualities, and will not make war but when the Nation will support it.” Roger Sherman objected: “The Executive shd. be able to repel and not to commence war.” Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” George Mason spoke “agst giving the power of war to the Executive, because not safely to be trusted with it …. He was for clogging rather than facilitating war.”

Similar statements were made at the state ratifying conventions. In Pennsylvania, 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.”¹⁰ In North Carolina, James Iredell pointed out that the king of Great Britain had the power to raise fleets and armies and to declare war, whereas the U.S. Constitution vested those powers “in other hands.”¹¹ In South Carolina, Charles Pinckney assured his colleagues that the President’s powers “did not permit him to declare war.”¹²

The title “Commander in Chief” implies the duty to repel sudden attacks, but beyond that responsibility, the President had to await congressional authority. The title also represents an important method for preserving civilian supremacy over the military. The person leading the armed forces would be the civilian President, not a military officer. Attorney General Edward Bates explained in 1861 that the President is Commander in Chief not because he is “skilled in the art of war” but to keep the army “subordinate to the civil power.”¹³

The constitutional framework adopted by the framers is clear in its basic principles. The authority to initiate war lay with Congress. The President could act unilaterally only in one area: to repel sudden attacks. Over the next two centuries, however, a number of incidents were invoked by Presidents and their supporters to expand the President’s potential for making war over the formal power of Congress for declaring war.

Precedents from 1789 to Lincoln

Presidential use of force during the first few decades after the Philadelphia Convention conformed closely to the expectations of the framers. The decision to go to war or mount offensive actions rested solely with Congress. Presidents accepted that principle for all wars—declared or undeclared.

The first exercise of the Commander in Chief clause involved actions by President Washington against certain Indian tribes, actions explicitly authorized by Congress. On September 29, 1789, Congress passed legislation “for the purpose of protecting the inhabitants of the frontiers of the United States from the hostile incursions of the Indians.” To provide that protection, Congress authorized the President “to call into service from time to time, such part of the militia of the states respectively, as he may judge necessary for the purpose aforesaid.”¹⁴ In 1790 and again in 1791, Congress passed new authorizations to protect the inhabitants in the frontiers.¹⁵

The executive branch understood that its unilateral military operations against Indians were limited to defensive actions. Secretary of War Henry Knox wrote to Governor William Blount on October 9, 1792: “The Congress which possess the powers of declaring War will assemble on the 5th of next Month—Until their judgments shall be made known it seems essential to confine all your operations to defensive measures.”¹⁶ Writing in 1793, President Washington said that any offensive operations against the Creek Nation must await congressional action.¹⁷

The Whiskey Rebellion of 1794 marks the first time a President called out the militia to suppress a domestic insurrection. President Washington acted expressly under the authority delegated to him by Congress. Legislation in 1792 provided that whenever the United States was invaded or in imminent danger of external or internal threats, the President could call forth the state militias to repel invasions and suppress insurrections.¹⁸ The statute introduced a novel check on presidential power. If federal laws were obstructed in any state, the President would have to be first notified of that fact by an Associate Justice of the Supreme Court or by a federal district judge. Only then could the President call forth the militia.¹⁹ In 1794, Justice James Wilson certified to President Washington that a rebellion in western Pennsylvania had rendered ordinary legal means insufficient to execute national law.²⁰ Washington called forth the militias of four states to put down the rebellion.

It is sometimes argued that Congress has the power to declare war but that the President may engage in undeclared wars. In a major legal defense of the Vietnam War, the State Department in 1966 remarked: “Since the Constitution was adopted there have been at least 125 instances in which the President has ordered the armed forces to take action or maintain positions abroad without obtaining prior congressional authorization, starting with the ‘undeclared war’ with France (1798–1800).”²¹ The reference to the war against France is false. Congress debated the prospect of war openly and enacted a number of bills to put the country on a war footing.

President John Adams never believed that he could, on his own authority, go to war against France. He asked Congress to prepare the country for war by passing “effectual measures of defense.”²² Congress enacted several dozen measures to prepare for war. During legislative debates in 1798, Congressman Edward Livingston (D-N.Y.) considered the country “now in a state of war; and let no man flatter himself that the vote which has been given is not a declaration of war.”²³

The Quasi-War with France underscored the prerogatives of Congress over war and the deployment of military force. In 1800 and 1801, the Supreme Court recognized that Congress could authorize hostilities either by a formal declaration of war or by statutes that authorized an undeclared war, as had been done against France. In the first case, Justice Samuel Chase noted: “Congress is empowered to declare a general war, or congress may wage a limited war; limited in place, in objects, and in time.” 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.”²⁴

Recent studies by the Justice Department and statements made during congressional debate in 1994 imply that President Thomas Jefferson took military measures against the Barbary powers without seeking the approval or authority of Congress.²⁵ In fact, in at least 11 statutes, Congress explicitly authorized military action by Presidents Jefferson and Madison.²⁶ Jefferson informed Congress that he had sent a small squadron of frigates to the Mediterranean to protect against attacks from the Pasha of Tripoli, but then asked Congress for further guidance, explaining that he was “[u]‌nauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense…. ” It was up to Congress to authorize “measures of offense also.”²⁷

No doubt Jefferson’s message to Congress omitted many details of what happened in the Mediterranean.²⁸ The essential legal point is that he went to Congress to seek statutory authority. He did not claim an independent and exclusive power to go to war. In 1805, when conflicts arose between the United States and Spain, Jefferson spoke plainly about constitutional principles: “Congress alone is constitutionally invested with the power of changing our condition from peace to war….”²⁹

After two decades of congressionally authorized military actions against Indians, internal rebellions, France, and the Barbary pirates, Congress declared its first war in 1812. Much like President Adams had done in the Quasi-War with France, President Madison submitted a message to Congress on November 5, 1811, alerting it to a number of hostile and discriminatory actions by England that required Congress to prepare for war.³⁰ The commitment to war was to be done by statute, not presidential fiat. Congress responded by raising additional military forces, organizing a volunteer military corps, and augmenting the navy.³¹ Madison’s message to Congress on June 1, 1812, identified other “injuries and indignities” committed by England. Although these practices amounted to what Madison called “a state of war against the United States,” he deferred to Congress on whether to declare war, “a solemn question which the Constitution wisely confides to the legislative department of the Government.”³² Congress declared war on June 18, 1812.

The power of the Commander in Chief is at its low point when there is no standing army; the President cannot deploy troops until Congress raises them. But when a standing army does exist, ready to move at the President’s command, the balance of power can shift decisively. The capacity of the President to plunge the nation into war is illustrated by President James Polk’s decision in 1846 to order General Zachary Taylor to occupy disputed territory on the Texas-Mexico border. The order provoked a clash between American and Mexican soldiers, allowing Polk to tell Congress on April 11 that “war exists.”³³ Although Polk took the decisive initiative, he never argued that he could independently take the country to war. He knew he had to come to Congress to seek authority. Congress declared war on May 13.

Polk’s action was censured by the House of Representatives in 1848 on the ground that the war had been “unnecessarily and unconstitutionally begun by the President of the United States.”³⁴ One of the members voting for the censure was Abraham Lincoln, who later wrote to a friend:

Allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel an invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose—and you allow him to make war at pleasure…. This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing the oppression upon us.³⁵

Lincoln’s decision to censure Polk may seem hypocritical, for during his own years as President, he exercised 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, there are crucial differences between Polk’s and Lincoln’s actions. Polk’s initiatives helped precipitate war with a foreign nation. Lincoln confronted a genuine internal emergency of civil war. Polk had some discretion over his actions. Lincoln was compelled to use force to put down an internal rebellion. Even so, Lincoln had genuine doubts about the legality of his actions, particularly the suspension of the writ of habeas corpus. When Congress returned, he explained that his actions, “whether strictly legal or not, were ventured upon under what appeared to be a popular demand and a public necessity, trusting then, as now, that Congress would readily ratify them.” He conceded that he had probably exercised “the constitutional competency of Congress.”³⁶ Through those words he acknowledged that he had used not only his own Article II powers but also those of Congress under Article I. Congress debated Lincoln’s actions and gave retroactive effect to them on the explicit assumption that initially he had acted illegally.³⁷

Lincoln’s suspension of the writ of habeas corpus was opposed by Chief Justice Roger Taney, sitting as circuit judge. Taney ruled that since the President had no power under the Constitution to suspend the writ, the prisoner in question, John Merryman, should be set free. When Taney attempted to serve a paper at the prison to free Merryman, prison officials refused to let Taney’s marshal perform his duty. Avoiding a direct confrontation with Lincoln, which the judiciary could not afford, Taney merely noted: “I have exercised all the power which the constitution and laws confer upon me, but that power has been resisted by a force too strong for me to overcome.”³⁸ It was left to Congress to determine Lincoln’s authority, which it did by passing the Habeas Corpus Act of 1863.

In the Prize Cases of 1863, the Supreme Court spoke clearly about the President’s authority to conduct defensive but not offensive actions. Justice Grier said that President Lincoln had authority to take military action in a civil war “without waiting for Congress to baptize it with a name,” but carefully stated that the President “has no power to initiate or declare a war either against a foreign nation or a domestic state.”³⁹ The executive branch took exactly the same position in that case. During oral argument, Richard Henry Dana, Jr., representing the United States, said that Lincoln’s action in responding to the Civil War had nothing to do with “the right to initiate a war, as a voluntary act of sovereignty. That is vested only in Congress.”⁴⁰

Presidential Power Expands

Aside from Polk’s deceitful initiatives in Mexico and Lincoln’s emergency actions during the Civil War, the power of war in the nineteenth century and throughout the early twentieth century remained basically in the hands of Congress. Presidents recognized the rule of legislative supremacy in matters of going to war. Congress declared war against Spain in 1898 and again in World War I and World War II.

In 1936, the Supreme Court issued its opinion in United States v. Curtiss-Wright Corp., a decision that did much to elevate the President as an independent force in foreign affairs. The Court was asked to decide whether Congress could delegate more broadly when legislating for international affairs. The issue presented to the Court was never the existence of independent presidential power. But the author of Curtiss-Wright, Justice George Sutherland, decided to use a delegation case to discover inherent powers for the President. He claimed that the exercise of presidential power does not depend solely on an act of Congress because of the “very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations.”⁴¹ The magic term “sole organ” suggests that when it comes to foreign policy, the President is the exclusive policymaker. Of course, that is the British model of Locke and Blackstone that the framers had expressly repudiated.

Sutherland’s language seems to carry special weight because John Marshall used the term “sole organ” in a speech in 1800 while serving in the House of Representatives. In fact, Sutherland wrenched Marshall’s statement from context to imply a position Marshall never advanced. The full context of the debate in 1800 makes clear that Marshall argued that foreign policy is formulated and announced through a collective effort by the executive and legislative branches (by treaty or by statute), and only after that point did the President emerge as the “sole organ” in implementing national policy. It was here that Marshall said that the President “is the sole organ of the nation in its external relations and its sole representative with foreign nations.”⁴² The President merely announced policy and carried it out; he did not make it.⁴³

Even though Sutherland’s opinion is filled with historical and conceptual errors, Curtiss-Wright became a popular citation for Court decisions upholding presidential power in foreign affairs.⁴⁴ The case is frequently cited to support not only broad delegations of legislative power to the President but even the existence of independent, implied, and inherent powers for the President.⁴⁵

Shortly after Curtiss-Wright, President Franklin D. Roosevelt took steps to lead the country from a state of neutrality to one of war. In June 1940, when France requested additional assistance from the United States, he pledged continuing assistance but cautioned: “I know that you will understand that these statements carry with them no implication of military commitments. Only the Congress can make such commitments.”⁴⁶ When Prime Minister Winston Churchill pressed Roosevelt for used destroyers, Roosevelt announced on September 3, 1940, an agreement to exchange 50 “over-age” destroyers with Britain in return for the right to use bases on British islands in the Atlantic and the Caribbean.⁴⁷ Attorney General Robert Jackson defended the constitutionality of the agreement, relying in part on Sutherland’s opinion in Curtiss-Wright.⁴⁸ However, Roosevelt acted in full compliance with a congressional statute that prohibited the transfer of naval vessels to another country unless the Chief of Naval Operations certified that the material “is not essential to the defense of the United States.”⁴⁹ The Chief of Naval Operations, Admiral H.R. Stark, issued that certification.⁵⁰

The Korean Conflict

The constitutional meaning of the war power changed abruptly in June 1950 when President Harry Truman took the initiative to involve the nation in war in Korea. He acted solely on his interpretation of presidential power, seeking no authority from Congress. The legality of his action has been debated ever since. What is not debatable is the fact that the President, for the first time, had committed U.S. troops abroad to a major conflict on what he considered to be adequate unilateral executive authority. He acted without a declaration of war or specific authorization from Congress. Unlike Lincoln, he did not express uncertainty about the legality of his actions and seek retroactive authority from Congress.

For legal footing, Truman cited resolutions passed by the United Nations Security Council. But how could the U.N. machinery serve as a legal substitute for congressional action? The history of the United Nations makes it clear that all parties in the legislative and executive branches understood that the decision to use military force through the U.N. required prior approval from both houses of Congress.⁵¹ Much of the Senate debate in 1945 centered on whether American troops could be sent to the United Nations solely by presidential action or required congressional consent. In the midst of this debate, President Truman wired a note to Senator Kenneth McKellar (D-Tenn.), making this pledge: “When any such agreement or agreements are negotiated it will be my purpose to ask the Congress for appropriate legislation to approve them.”⁵² With that understanding, the Senate approved the U.N. Charter by a vote of 89 to 2.

Having approved the Charter, Congress now had to pass additional legislation to implement it and determine the precise constitutional mechanisms for the use of force. The U.N. Charter called for each nation to ratify agreements to lend military support “in accordance with their respective constitutional processes.” The specific procedures for the United States are included in Section 6 of the United Nations Participation Act of 1945. Without the slightest ambiguity, the statute requires that the agreements “shall be subject to the approval of the Congress by appropriate Act or joint resolution.”⁵³ Statutory language could not be more clear.

With those safeguards in place to protect congressional prerogatives, how could Truman act unilaterally in ordering U.S. air and sea forces to assist South Korea? The short answer is that he ignored the special agreements that were the vehicle for ensuring congressional approval in advance of any military action by the President. Congressional reaction to Truman’s usurpation of the war power was largely passive. Rather than express outrage, some members offered the weak and historically inaccurate justification that “history will show that on more than 100 occasions in the life of this Republic” the President had ordered American troops to do certain things without seeking congressional consent.⁵⁴ Those precedents for unilateral presidential action do not come close to the magnitude of the Korean War. As Edward S. Corwin noted, the list consists largely of “fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like.”⁵⁵

Truman was eventually checked, but by the Supreme Court rather than by Congress. In the midst of a nationwide strike in 1952, President Truman ordered the seizure of the steel mills to help prosecute the war in Korea. He decided to forgo the statutory option available to him: a cooling-off period of 80 days. That procedure had been included in the Taft-Hartley Act of 1947, a measure enacted over Truman’s veto.

The legality of his action was immediately challenged by some members of Congress, who pointed out that in 1951, Congress had specifically considered granting a President seizure authority and chose to reject that course.⁵⁶ Newspapers from around the country published editorials that condemned Truman’s theory of inherent and emergency power. The editorials ripped him for acting in a manner they regarded as arbitrary, dictatorial, dangerous, destructive, high-handed, and unauthorized by law.⁵⁷

At a news conference, reporters asked Truman whether he could also seize newspapers and radio stations. He replied: “Under similar circumstances the President of the United States has to act for whatever is for the best of the country. That’s the answer to your question.”⁵⁸ His broad definition of executive power was so offensive to the public that he began to backtrack, acknowledging various legal and constitutional limits that operate on the President. He pointed out that Congress could act legislatively to check his action.⁵⁹ Congress refused to bite. Truman had gotten himself out on a limb, and Congress felt no obligation to either rescue him or saw him down. He continued to dangle.

The steel companies took the matter to court, where the Justice Department presented a remarkable argument that the judiciary had no power to constrain the President. According to the Justice Department, only two checks operated on the President’s emergency power: impeachment and the ballot box.⁶⁰ In response, District Judge David A. Pine wrote a blistering opinion that repudiated this theory of inherent presidential power. In holding Truman’s seizure of the steel mills to be unconstitutional, Pine admitted that a nationwide strike could do extensive damage to the country, but believed that a strike “would be less injurious to the public than the injury which would flow from a timorous judicial recognition that there is some basis for this claim to unlimited and unrestrained Executive power, which would be implicit in a failure to grant the injunction.”⁶¹