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

Only Congress has the constitutional power to declare war (Article 1, Section 8). Except for foreign aggression or invasion, which the President can repel on his own authority as commander in chief, the framers of the Constitution expected that decisions about peace or war would be made by Congress. But of the more than 220 situations in which the armed forces have been used (half of them involving fighting for more than 30 days), only 5 have involved declarations of war: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.

Because of the constitutional separation of war powers, there has been much disagreement and friction between the executive and legislative branches.

Thomas Jefferson believed that giving Congress the power to declare war was “an effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the legislative, from those who are to spend to those who are to pay.” Congress must appropriate all money necessary to raise and equip American armed forces and to send them into battle.

Twice in the 19th century, Congress pressed reluctant Presidents into war. In 1812 congressional “war hawks” favored war with Great Britain, despite President James Madison's reservations, and in 1898 Congress pushed a dubious President William McKinley into war with Spain. A more divided Congress endorsed President James K. Polk's call for war with Mexico in 1846. After a long and difficult period of neutrality, Congress supported Wood-row Wilson's call for the United States to enter World War 1. It took the Japanese bombing of Pearl Harbor on December 7, 1941, for Congress to declare war on Japan and Germany during World War II. Since 1941 there have been no formal declarations of war.

Cases in which the President has used the armed forces on his own authority, without congressional authorization, have included actions against pirates or bandits threatening U.S. foreign commerce, such as President Thomas Jefferson's use of the navy against the Barbary pirates in the Mediterranean Sea in the early 1800s. They have included rescue missions involving the lives and property of Americans, such as President Jimmy Carter's unsuccessful attempt to rescue diplomats held hostage by Iran in 1979. Presidents have ordered retaliatory actions, such as the bombing raid against Libya in 1986, which followed Libyan terrorist attacks against U.S. service personnel in Germany.

Presidents have ordered the military to protect U.S. freedom of the seas, as John Adams did when he ordered U.S. forces into an undeclared naval war with France. They have used the military to temporarily occupy other nations, including Haiti (1915–34), Nicaragua (1912–25), and Cuba (1906–9). Presidents have used force to overthrow unfriendly regimes, such as Ronald Reagan's invasion of Grenada in 1983. They have supported friendly regimes against civil insurrections, such as the use of military advisers in El Salvador in the 1980s. They have used hundreds of thousands of troops to aid friendly nations against external aggression (South Korea in 1950, South Vietnam in 1964, and Kuwait in 1990).

Presidents claim that they can make war on their own constitutional authority as commander in chief. They argue that their duty to see that the laws are faithfully executed gives them an “international police power” to see that other nations pay their debts, protect U.S. lives and property, and abide by international law. In addition, the President executes treaty commitments, and certain treaties require the United States to guarantee the security of other nations. Presidents argue that they can use the armed forces in these cases without waiting for congressional approval. They also argue that their oath of office, the executive power, and the commander in chief clause of the Constitution all provide them with the authority to make decisions about peace and war in all other circumstances.

During the cold war, beginning in the late 1940s and lasting through the 1980s, when a “balance of terror” seemed to require that the United States and Soviet Union each have the ability to retaliate against a nuclear attack by the other side, Presidents argued that it was unrealistic to assume that Congress could participate in the decision to use nuclear weapons. Presidents argued that only if they had the power to retaliate without waiting for Congress to agree would the other side respect U.S. retaliatory power. In the 1940s Congress embraced a bipartisan foreign policy, in which the two parties came together to support the national interest, and generally deferred to the President in foreign and military affairs. In 1964, when President Lyndon Johnson asked Congress to enact the Gulf of Tonkin Resolution— permitting him to use U.S. armed forces in retaliation for North Vietnam's alleged assaults on U.S. ships—only two senators dissented. Congress adopted the Gulf of Tonkin Resolution, which Johnson considered a declaration of war. Congressional and public dissatisfaction with the course of the Vietnam War, however, disrupted the bipartisan foreign policy and strained relations between the executive and legislative branches.

Presidential war making becomes controversial if it leads to protracted hostilities, large numbers of dead and wounded, and large expenditures. The President risks splitting his own party, and may be forced to withdraw attempts to win renomination and reelection (as Harry Truman did during the Korean War and Lyndon Johnson did during the Vietnam War). On the other hand, a President who wins a quick and decisive military engagement will find his popularity soaring. This happened to Ronald Reagan after the invasion of Grenada and to George Bush after the invasion of Panama and the defeat of Iraqi forces in Kuwait.

If Congress wishes to oppose the President, it can do so in several ways. It can revoke any resolutions supporting the President (as Congress did in 1970 when it revoked the Gulf of Tonkin Resolution). Congress can cut off appropriations for Presidential war making. During the Vietnam War, it barred troops from engaging in operations in Thailand and Laos (1969) and from using ground forces in Cambodia (1970) and bombing Cambodia (1973). But usually, Congress votes for appropriations requested by the President as well as other authority (such as drafting troops). It does so, in spite of any doubts, because most members do not want to be vulnerable to charges in an election year that they voted to deny weapons and supplies to troops fighting the enemy.

The federal courts almost always find Presidential war making to be constitutional. Cases brought by soldiers drafted to fight in Presidentially ordered combat are usually decided in favor of the President, on the grounds that his power as commander in chief allows him to send troops into combat. The courts have never ruled that Presidential war making was unconstitutional.

Despite the steady shift of war powers from Congress to the Presidency, Congress as a representative body still serves as an extension of public opinion. Recalling the lessons of the unpopular Vietnam War, Presidents seek to achieve national unity by winning congressional support for their foreign and military policies. (1964); Johnson, Lyndon B.; Lincoln, Abraham; Persian Gulf debate (1991); Separation of powers; War Powers Resolution (1973)

See also Commander in chief; Cuban Missile Crisis; Gulf of Tonkin Resolution

Sources

• Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas: 1995). Arthur M. Schlesinger, Jr., The Imperial Presidency (Boston: Houghton Mifflin, 1973)

Since the United States was created, Congress and the president have been in conflict over which branch of government has the power to make war. Though the Constitution gives the balance of war power to the legislative branch, the executive branch has steadily enlarged its authority for more than a century.

In 1787, the framers of the Constitution were eager to reject the English precedent granting the king authority over most matters of foreign policy, including military decisions. Consequently, they gave to Congress the key powers of declaring war and raising and regulating the various armed forces. The president received the strictly defensive, emergency power to "repel sudden attacks" and the title Commander in Chief, which entailed leading armies only after Congress had formed them and committed America to war.

In the decades after the Constitution was ratified, presidents mostly deferred to the legislative branch in military affairs. For example, even though George Washington's campaigns against various Indian tribes were considered defensive, Congress nevertheless repeatedly authorized his use of force on the frontier. Though James Madison asked Congress to declare what became known as the War of 1812, he did not take action for several weeks while the House and Senate debated.

President James K. Polk was the first executive to assume significant war power for himself, during the Mexican-American War (1846–1848). After negotiations with Mexico to purchase parts of California and New Mexico failed, Polk opted to take the land by force. He sent American troops to disputed territory along the Texas-Mexico border and later told Congress that America had been invaded and that "war exists." Though Congress eventually made a declaration, it censured Polk two years later on the grounds that the war had been "unnecessarily and unconstitutionally begun."

In the early twentieth century, presidents began to conceive of their defensive war powers more broadly, as a mandate to protect American interests wherever they were threatened. The new rationale served the United States' increasingly imperial foreign policy by justifying a series of far-flung military commitments. In 1903, for example, Theodore Roosevelt was having difficulty buying the rights to what would become the Panama Canal Zone from Colombia, which then controlled Panama. To make the transaction easier, he both financed and provided troop support for a Panamanian revolution, knowing that a nominally independent but quiescent Panama would grant cheap access to the canal zone. Woodrow Wilson sent troops to Mexico (1914), Haiti (1915), and the Dominican Republic (1916) out of a general determination to dominate the hemisphere and export American values. Though Congress gave subsequent approval to some of these invasions, they were initiated by presidents claiming expansive, unprecedented war power.

In 1936, the Supreme Court's decision in United States v. Curtiss-Wright Corporation helped legitimize growing conceptions of executive authority. The Court ruled that Congress could give the president more discretion in foreign affairs than would be appropriate in domestic matters. Moreover, it gave the president the authority to make diplomatic policy independently on the grounds that the president is the "sole organ of the federal government in the field of international relations." The judiciary has since cited Curtiss-Wright in numerous decisions upholding presidential war power.

Since World War II, presidents have made several large-scale military commitments and many smaller ones without congressional authorization. They tend to cite their own authority as commander in chief and often claim to be acting pursuant to United Nations resolutions or mutual treaties (such as NATO or SEATO). Harry Truman cited two UN Security Council resolutions to justify involvement in the Korean War (1950–1953). He failed to notify Congress until after he committed troops, and his administration chose not to seek congressional support. Several days after Truman sent forces to Korea, he claimed that the United States was not at war and defined the military effort as a "police action."

Truman's behavior inspired few objections at first, but as the war became a stalemate, opposition grew. In 1951 he sent forces to Europe, and after a long debate, the Senate passed a non-binding resolution reclaiming the power to approve troop assignments in advance. In 1952 Truman seized steel plants whose workers threatened to strike in order to maintain Korean War production, but the Supreme Court ruled that the move overstepped executive authority. Nevertheless, presidential war power continued to grow.

After two apparent North Vietnamese attacks on American destroyers in the Gulf of Tonkin in 1964, Lyndon Johnson sought congressional approval to retaliate. (In fact, reports on one of the North Vietnamese attacks relied on questionable sonar readings, and there is considerable evidence that it never happened.) Both houses responded immediately with the Gulf of Tonkin Resolution, which allowed the use of force "to repel any armed attack" and "to prevent further aggression." Though the resolution was clearly limited in scope, the American troop commitment grew from 18,000 to 125,000 within a year. It would soon exceed 500,000.

As with Korea, Congress tried to exert its war power only after the fact, when the Vietnam War had become a disaster. In 1969 the Senate passed a non-binding resolution urging executive and legislative cooperation. In 1973 Congress finally passed a binding measure, the War Powers Resolution, requiring the president to get legislative approval before sending troops into long-term combat.

Recent presidents, however, have taken advantage of several loopholes in the War Powers Act, most notably a clause that allows presidentially declared wars lasting 60 days or less. Ronald Reagan's interventions in Lebanon (1982) and Libya (1986) lacked congressional approval, and while George H. W. Bush received authorization for the Persian Gulf War (1991), he ordered the invasion of Panama (1989) while Congress was out of session. Bill Clinton acted unilaterally in Iraq (1993, 1998), Haiti (1994), and Bosnia (1995). Congress gave limited approval to the war in Afghanistan in 2001. On September 12, the day after the attacks on the World Trade Center and the Pentagon, a joint resolution supported "the determination of the President, in close consultation with Congress, to bring to justice and punish the perpetrators of these attacks as well as their sponsors."

Recent arguments in favor of presidential war power claim that the framers did not anticipate modern warfare, which occurs in a fast-moving global context and depends on speed and secrecy. Advocates of congressional authority maintain that the decision to commit the country to war should not belong to a single person, but they have yet to make the case consistently or vigorously enough to reverse the long historical trend.

Bibliography

Fisher, Louis. Presidential War Power. Lawrence: University Press of Kansas, 1995.

Hess, Gary R. Presidential Decisions for War: Korea, Vietnam, and the Persian Gulf. Baltimore: Johns Hopkins University Press, 2001.

Javits, Jacob K. Who Makes War: The President Versus Congress. New York: Morrow, 1973.

Lehman, John F. Making War: The 200-Year-Old Battle Between the President and Congress over How America Goes to War. New York: Scribners, 1992.

Westerfield, Donald L. War Powers: The President, the Congress, and the Question of War. Westport, Conn.: Praeger, 1996.