A Constitutional Overview of the Duty to Defend and the Power to Wage Successful War
There never was a good war or a bad peace.*
—BENJAMIN FRANKLIN
When the British colonies won their independence in the American Revolutionary War, the new country entered the world stage in a state of chaotic and competitive uncertainty. Out of that chaos came the Articles of Confederation, an impractical interworking of what appeared to be the first central government between the newly freed and tenuously united thirteen states. As a loose confederation of individually sovereign states, most of the military power remained with the states themselves,1 thereby leaving the national government unable to defend the new nation. Within six years, it became apparent that the Articles had placed the nation close to chaos.
There were no provisions under the Articles for an executive to enforce the law or for a national court system to interpret the law. There simply existed a toothless legislative body composed of delegates from the thirteen states.2 While the Articles supported the notion of a Continental Army and provided for a unified nation for dealing with the European powers, it was largely illusory.3 The states normally would not volunteer their militias unless it served their individual interests.4 As well, the use of monopolies, cartels, and tariffs isolated the states from one another economically, and that drove up prices and drove down supply. And, of course, the moral, legal, and constitutional problem of slavery was waiting to explode.
Facing threats from domestic sources, including the infamous Shays’ Rebellion, and foreign threats from European powers, the central government concluded that change was needed.5 Thus, there evolved a demand for a stronger federal government, one with a unified central base which could raise and maintain an army, provide for the defense of the nation, and keep commerce among the states regular. That demand led to the drafting and later adoption of the U.S. Constitution in 1789.
The Allocation of War Powers Under the Constitution
When the Framers of the Constitution initially crafted this country’s governing document, they intentionally designed the government to operate in a manner that made it difficult to declare war and to utilize extended military force. Realizing the all-too-familiar truisms of war between the countries of Europe made blood spill often over the jealousy of kings,* the Framers were focused on restricting war to only the gravest of national threats of violence. The Founding Fathers were aware that the sole reason for the existence of government was to make sure that our natural rights were preserved and that freedom reigned supreme. It followed then that there was a need for an adequate and reliable military to protect the nation from its foreign enemies. Cognizant of the immense power a national army instills in a central government, the Framers made sure to reserve the power of financing this military machine to the people (through the Congress)6 and to divvy up the military powers among the different branches of government. Specifically, the power to finance the armies and to declare war was separated from the power of commanding the army, and that was separated from the power of adjudicating individuals as enemies of the state.
Article I, section 8, of the U.S. Constitution sets forth the proper procedure for the declaration of war and is commonly known as the War Powers Clause. The provision states: “Congress shall have Power To . . . declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”7 In addition, Congress exclusively holds the authority to “raise and support Armies” and to “provide and maintain a Navy.”8 The Constitution is explicit in its requirement that Congress alone is the branch permitted to declare a war on behalf of the United States against another country or group.
Under the Constitution, without a declaration from Congress, the president may not, under any circumstances (unless repelling an invasion), use military force or wage war against another entity on behalf of the United States. Unfortunately, presidents have not held this view in the modern era. In 230 years, there have been only eleven official declarations of war issued by the U.S. Congress.9 At this writing, the last explicit declaration of war was issued against Germany in World War II.10 Constitutionally, this is entirely perplexing as there have been numerous conflicts that most Americans would consider to be wars since World War II, such as the Korean War, the Vietnam War, the Gulf War, the Afghanistan War, the Iraq War, the Libyan War—to cite but a few examples burned, no doubt, into the public’s consciousness.
Although lower courts have held some instances of presidential action without congressional authorization unconstitutional,11 the Supreme Court has never intervened to stop a war that the president has initiated without a declaration of war from Congress. Having little guidance on this from the Court, Congress took matters into its own hands with the War Powers Resolution of 1973,12 discussed in chapter 9.
Moreover, a congressional declaration of war was explicitly placed into the Constitution as a check on presidential power. The Framers were careful to place this burden on the representatives of the American people in Congress, not in the potential despotic, tyrannical hands of one man: The president. Yet with the modern acquiescence of Congress to the demands of the executive branch in matters of war, we have seen a shift of accountability. Professors Alfred and Steven Blumrosen wrote:
The declarations of war in the first half of the twentieth century made clear that Congress was taking full responsibility for its decision. Each member was recorded as voting for or against the war and could be judged by their constituents for that act. In contrast, the AUMF [Authorization for Use of Military Force] authorizes the President to make the decision and, thus, absolves Congress of that responsibility and relieves its members of accountability. For more than half a century, Congress has allowed the President to do the work of taking the nation to war, instead of following the Constitution.13
Congress should not have the ability to shift the blame of war to the president. Likewise, the president should not be able to usurp a constitutionally mandated prerogative of Congress, even with Congress’s consent. The severe implications of war deserve ample time, debate, consideration, and consensus by the federal government. The Framers were right to place this task solely upon the legislative branch. Only in the houses of Congress can the American people be represented in the appropriate deliberation to launch the country into all-out war against another country or some non-state entity. This was not to be a country under the will of a military dictator; rather, it was to be a republic of the people and “the genius of the people must be consulted.”14
Article II, section 2, of the U.S. Constitution empowers the president as “Commander in Chief of the Army and Navy of the United States.”15 Early presidents, including George Washington, John Adams, Thomas Jefferson, and James Madison, correctly understood the structure of the Constitution and its explicit requirement of congressional authorization for military offensives. “No early President felt free to wage war merely because another nation had declared war on the United States. Each understood that to wage war was to declare it, a power the Constitution granted Congress, and not the President.”16
Furthermore, those who would argue that both the president and Congress share the ability to wage war on behalf of the United States are incorrect: “To say that the Congress may issue formal declarations of war but that the President may nonetheless start a war at his discretion is to endorse mutually incompatible propositions.”17 More recent presidents have exercised their commander in chief powers to send troops to foreign countries, even in peacetime, without the permission or approval of Congress.18 The Court, in its infinite wisdom, has only sparingly analyzed the lawfulness of doing so, holding that there are problems in terms of who would have standing to sue.*
Defensive measures, such as repelling an invasion, however, construct a much different scenario for the president. The Supreme Court has held that the president “has no power to initiate or declare war,” but if there were an invasion, “the President is not only authorized but bound to resist by force . . . without waiting for any special legislative authority.”19 It was important to the Founders, James Madison in particular, that the president must have the power to repel sudden attacks. Insomuch as the president may repel an invasion or suppress sudden aggression, his authority concludes thus, in the absence of congressional authorization for offensive action. “[T]hose who are to conduct a war cannot be proper judges of ‘whether a war ought to be commenced, continued, or concluded.’ ”20
Although the president may not unilaterally wage war on another country, organization, or entity without authorization from Congress, the courts have granted the president much leeway in his capacity as commander in chief to deploy troops abroad. The Johnson and Nixon administrations used the power to commit troops without the consent of Congress to a variety of conflicts. For example, in 1964 Congress issued broad war-making authority for the Vietnam conflict to then President Lyndon B. Johnson with the passage of the Gulf of Tonkin Resolution. When Congress repealed the authorization in 1971, several lawsuits were filed to enjoin President Nixon from continuing the war in Vietnam. The courts refused to rule upon the merits of these cases, leaving the president full reign to continue war unilaterally in Southeast Asia.21 Regrettably, this marks just a small fraction of unconstitutional power expansion on the part of the executive branch. Discussed in later sections, several American presidents—some even considered to be American heroes—have openly attacked civil liberties and disregarded the Constitution.
* Benjamin Franklin to Josiah Quincy, September 11, 1783, in The Friend of Peace, ed. Noah Worcester (1827), 304.
* Hamilton discussed this in the Federalist Papers. “[Some wars] take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals. . . . Men of class . . . assuming the pretext of some public motive, have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification.” See Alexander Hamilton, Federalist No. 6, Library of Congress, http://thomas.loc.gov/home/histdox/fed_06.html.
* During the Yugoslavia conflict, a congressman attempted to sue then President Bill Clinton for not complying with the War Powers Resolution and the provision of war in the Constitution. A district court judge dismissed the suit because of a lack of standing. The Circuit Court of Appeals affirmed the decision. Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000); Erwin Chemerinsky, Constitutional Law: Principles and Policies, ed. Vicki Been et al., 4th ed. (New York: Aspen Publishers, 2011), 290 n19.