War Powers Clause
Encyclopedia
Article I, Section 8, Clause 11 of the United States Constitution
, sometimes referred to as the War Powers Clause, vests in the Congress
the power to declare war
, in the following wording:
A number of wars have been declared under the United States Constitution, although there is some controversy as to the exact number as there is controversy over what format a declaration of war must be issued in. The US constitution is mum on the topic.
under the Constitution: the War of 1812
, the Mexican-American War, the Spanish-American War
, World War I
, and World War II
.
In his message to Congress on May 11, 1846, the President explained that Texas was about to become one of the United States of America. Mexico threatened to invade Texas. The President amassed troops in the area of Corpus Christi. Texas became a state. US troops moved into an area in which the new international boundary was disputed. Mexican troops moved into the same area. The two forces clashed. The President claimed "after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced and that the two nations are now at war." Some in Congress wondered if this were so, including Abraham Lincoln
. He wrote in a letter to his law partner:
Then-congress member Lincoln moved for a Resolution issuing the President interrogatories (questions) so the Congress could determine for itself the exact "spot" of the conflict and whether the Congress believed it to be inside the United States.
Regardless, the Congress did, by roll-call vote, declare war.
House Roll Call Vote, Senate Roll Call Vote,
Published Declaration of War, 1,
Published Declaration of War, 2
If it was true that the war was ongoing, because the President had to repel a sudden attack, this was contemplated by the framers of the Constitution, in Philadelphia, during August of the summer of 1787, when the wording of the proposed Constitution was being finalized, the draft read that Congress could "make war." This was changed to "declare war" specifically in order to allow the President to defend the country from sudden attacks. "Mr. Madison
and Mr. Gerry
moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks." That the President took decisive action to defend the country does not relieve the Congress of its Art. I obligation to vote on whether to declare and continue the war.
American Presidents often have not sought formal declarations of war, instead maintaining that they have the constitutional authority, as commander in chief (Article Two
, Section Two) to use the military for "police action
s". According to historian Thomas Woods
, "Ever since the Korean War
, Article II, Section 2 of the Constitution — which refers to the president as the 'Commander in Chief of the Army and Navy of the United States' — has been interpreted to mean that the president may act with an essentially free hand in foreign affairs, or at the very least that he may send men into battle without consulting Congress." Some have argued this could pass as offensive actions, though historically police actions fell mostly under the purview of protecting embassies, U.S. citizens overseas, and shipping such as the Quasi War.
The Korean War
was the first modern example of the U.S. being taken to war without a formal declaration, and this has been repeated in every armed conflict since. Beginning with the Vietnam War
, however, Congress has given other various forms of authorizations to do so. Some debate continues as to the appropriateness of these, as well as the tendency of the Executive Branch to engage in the origination of such a push, its marketing, and even propagandizing or related activities to generate such support.
Thus in light of the speculation concerning the Gulf of Tonkin Incident
and the possible abuse of the authorization that followed, in 1973 Congress passed the War Powers Resolution
, which requires the President to obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities with a full disclosure of facts in the process. Its constitutionality has never been settled, and some Presidents have criticized it as an unconstitutional encroachment upon the President. In 2007, University of Virginia
professor Larry J. Sabato proposed a constitutional amendment
in his book A More Perfect Constitution
that would settle the issue by spelling out the exact powers of each branch in the constitution itself. One counter-argument is that the Constitution is a "living document" which has survived for over 200 years because not everything is "spelled out." In the area of the War Powers Clause, the flexibility provided by the requirement for a Congressional statute permitting war (a declaration of war) and constitutional interpretation could be sufficient. The President could defend the country, but not - by him or her self - use the military offensively. This would not require a Constitutional amendment or a statute like the War Powers Resolution; it has been with us since 1787.
Some legal scholars maintain that offensive, non-police military actions, while a Quorum
can still be convened (see Continuity of Government
), taken without a formal Congressional declaration of war is unconstitutional since no amendment with two-thirds majority of states has changed the original intent to make the War Powers Resolution legally binding. However, the Supreme Court has never ruled directly on the matter and to date no counter-resolutions have come to a vote. This Separation of Powers
effect of stalemate thus creates a "functional", if not unanimous, governmental opinion and outcome on the matter.
and the intent of the American founders, there was only one delegate who suggested giving the Executive the power to take offensive military action: Pierce Butler
of South Carolina. He suggested the President should be able to, but in practice would have the character not to do so without mass support. Elbridge Gerry
, a delegate from Massachusetts, summed up the majority viewpoint saying he "never expected to hear in a republic a motion to empower the Executive alone to declare war." George Mason
, Thomas Jefferson
, and others voiced similar sentiments.
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
, sometimes referred to as the War Powers Clause, vests in the Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
the power to declare war
War
War is a state of organized, armed, and often prolonged conflict carried on between states, nations, or other parties typified by extreme aggression, social disruption, and usually high mortality. War should be understood as an actual, intentional and widespread armed conflict between political...
, in the following wording:
- [Congress shall have Power...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
A number of wars have been declared under the United States Constitution, although there is some controversy as to the exact number as there is controversy over what format a declaration of war must be issued in. The US constitution is mum on the topic.
History and usage
Five wars have been declaredDeclaration of war by the United States
A declaration of war is a formal declaration issued by a national government indicating that a state of war exists between that nation and another. For the United States, Article One, Section Eight of the Constitution says "Congress shall have power to ... declare War"...
under the Constitution: the War of 1812
War of 1812
The War of 1812 was a military conflict fought between the forces of the United States of America and those of the British Empire. The Americans declared war in 1812 for several reasons, including trade restrictions because of Britain's ongoing war with France, impressment of American merchant...
, the Mexican-American War, the Spanish-American War
Spanish-American War
The Spanish–American War was a conflict in 1898 between Spain and the United States, effectively the result of American intervention in the ongoing Cuban War of Independence...
, World War I
World War I
World War I , which was predominantly called the World War or the Great War from its occurrence until 1939, and the First World War or World War I thereafter, was a major war centred in Europe that began on 28 July 1914 and lasted until 11 November 1918...
, and World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
.
In his message to Congress on May 11, 1846, the President explained that Texas was about to become one of the United States of America. Mexico threatened to invade Texas. The President amassed troops in the area of Corpus Christi. Texas became a state. US troops moved into an area in which the new international boundary was disputed. Mexican troops moved into the same area. The two forces clashed. The President claimed "after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced and that the two nations are now at war." Some in Congress wondered if this were so, including Abraham Lincoln
Abraham Lincoln
Abraham Lincoln was the 16th President of the United States, serving from March 1861 until his assassination in April 1865. He successfully led his country through a great constitutional, military and moral crisis – the American Civil War – preserving the Union, while ending slavery, and...
. He wrote in a letter to his law partner:
- “Let me first state what I understand to be your position. It is, that if it shall become necessary, to repel invasion, the President may, without violation of the Constitution, cross the line and invade the territory of another country; and that whether such necessity exists in any given case, the President is to be the sole judge. .. But…: 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 allow him to make war at pleasure…. If, to-day, he should choose to say he thinks it necessary to invade Canada, to prevent the British from invading us, how could you stop him? You may say to him, ‘I see no probability of the British invading us’ but he will say to you ‘be silent; I see it, if you don't.’
- “The provision of the Constitution giving the war-making power to Congress, was dictated, as I understand it, by the following reasons. Kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. 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 this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.”
Then-congress member Lincoln moved for a Resolution issuing the President interrogatories (questions) so the Congress could determine for itself the exact "spot" of the conflict and whether the Congress believed it to be inside the United States.
Regardless, the Congress did, by roll-call vote, declare war.
House Roll Call Vote, Senate Roll Call Vote,
Published Declaration of War, 1,
Published Declaration of War, 2
If it was true that the war was ongoing, because the President had to repel a sudden attack, this was contemplated by the framers of the Constitution, in Philadelphia, during August of the summer of 1787, when the wording of the proposed Constitution was being finalized, the draft read that Congress could "make war." This was changed to "declare war" specifically in order to allow the President to defend the country from sudden attacks. "Mr. Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
and Mr. Gerry
Elbridge Gerry
Elbridge Thomas Gerry was an American statesman and diplomat. As a Democratic-Republican he was selected as the fifth Vice President of the United States , serving under James Madison, until his death a year and a half into his term...
moved to insert "declare," striking out "make" war; leaving to the Executive the power to repel sudden attacks." That the President took decisive action to defend the country does not relieve the Congress of its Art. I obligation to vote on whether to declare and continue the war.
American Presidents often have not sought formal declarations of war, instead maintaining that they have the constitutional authority, as commander in chief (Article Two
Article Two of the United States Constitution
Article Two of the United States Constitution creates the executive branch of the government, consisting of the President and other executive officers.-Clause 1: Executive power:...
, Section Two) to use the military for "police action
Police action
Police action in military/security studies and international relations is a euphemism for a military action undertaken without a formal declaration of war.Since World War II, formal declarations of war have been rare...
s". According to historian Thomas Woods
Thomas Woods
Thomas E. "Tom" Woods, Jr. is an American historian, economist, political analyst, and New York Times-bestselling author. He has written extensively on the subjects of American history, contemporary politics, and economic theory...
, "Ever since the Korean War
Korean War
The Korean War was a conventional war between South Korea, supported by the United Nations, and North Korea, supported by the People's Republic of China , with military material aid from the Soviet Union...
, Article II, Section 2 of the Constitution — which refers to the president as the 'Commander in Chief of the Army and Navy of the United States' — has been interpreted to mean that the president may act with an essentially free hand in foreign affairs, or at the very least that he may send men into battle without consulting Congress." Some have argued this could pass as offensive actions, though historically police actions fell mostly under the purview of protecting embassies, U.S. citizens overseas, and shipping such as the Quasi War.
The Korean War
Korean War
The Korean War was a conventional war between South Korea, supported by the United Nations, and North Korea, supported by the People's Republic of China , with military material aid from the Soviet Union...
was the first modern example of the U.S. being taken to war without a formal declaration, and this has been repeated in every armed conflict since. Beginning with the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
, however, Congress has given other various forms of authorizations to do so. Some debate continues as to the appropriateness of these, as well as the tendency of the Executive Branch to engage in the origination of such a push, its marketing, and even propagandizing or related activities to generate such support.
Thus in light of the speculation concerning the Gulf of Tonkin Incident
Gulf of Tonkin Incident
The Gulf of Tonkin Incident, or the USS Maddox Incident, are the names given to two incidents, one fabricated, involving North Vietnam and the United States in the waters of the Gulf of Tonkin...
and the possible abuse of the authorization that followed, in 1973 Congress passed the War Powers Resolution
War Powers Resolution
The War Powers Resolution of 1973 is a federal law intended to check the power of the President in committing the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the...
, which requires the President to obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities with a full disclosure of facts in the process. Its constitutionality has never been settled, and some Presidents have criticized it as an unconstitutional encroachment upon the President. In 2007, University of Virginia
University of Virginia
The University of Virginia is a public research university located in Charlottesville, Virginia, United States, founded by Thomas Jefferson...
professor Larry J. Sabato proposed a constitutional amendment
Constitutional amendment
A constitutional amendment is a formal change to the text of the written constitution of a nation or state.Most constitutions require that amendments cannot be enacted unless they have passed a special procedure that is more stringent than that required of ordinary legislation...
in his book A More Perfect Constitution
A More Perfect Constitution
A More Perfect Constitution is a non-fiction book by American political scientist Larry J. Sabato, published in 2007. In it, Sabato calls for a new constitutional convention to update the United States Constitution....
that would settle the issue by spelling out the exact powers of each branch in the constitution itself. One counter-argument is that the Constitution is a "living document" which has survived for over 200 years because not everything is "spelled out." In the area of the War Powers Clause, the flexibility provided by the requirement for a Congressional statute permitting war (a declaration of war) and constitutional interpretation could be sufficient. The President could defend the country, but not - by him or her self - use the military offensively. This would not require a Constitutional amendment or a statute like the War Powers Resolution; it has been with us since 1787.
Some legal scholars maintain that offensive, non-police military actions, while a Quorum
Quorum
A quorum is the minimum number of members of a deliberative assembly necessary to conduct the business of that group...
can still be convened (see Continuity of Government
Continuity of government
Continuity of government is the principle of establishing defined procedures that allow a government to continue its essential operations in case of nuclear war or other catastrophic event....
), taken without a formal Congressional declaration of war is unconstitutional since no amendment with two-thirds majority of states has changed the original intent to make the War Powers Resolution legally binding. However, the Supreme Court has never ruled directly on the matter and to date no counter-resolutions have come to a vote. This Separation of Powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
effect of stalemate thus creates a "functional", if not unanimous, governmental opinion and outcome on the matter.
Constitutional convention debate
As to the Philadelphia ConventionPhiladelphia Convention
The Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...
and the intent of the American founders, there was only one delegate who suggested giving the Executive the power to take offensive military action: Pierce Butler
Pierce Butler
Pierce Butler was a soldier, planter, and statesman, recognized as one of United States' Founding Fathers. He represented South Carolina in the Continental Congress, the 1787 Constitutional Convention, and the U.S. Senate...
of South Carolina. He suggested the President should be able to, but in practice would have the character not to do so without mass support. Elbridge Gerry
Elbridge Gerry
Elbridge Thomas Gerry was an American statesman and diplomat. As a Democratic-Republican he was selected as the fifth Vice President of the United States , serving under James Madison, until his death a year and a half into his term...
, a delegate from Massachusetts, summed up the majority viewpoint saying he "never expected to hear in a republic a motion to empower the Executive alone to declare war." George Mason
George Mason
George Mason IV was an American Patriot, statesman and a delegate from Virginia to the U.S. Constitutional Convention...
, Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
, and others voiced similar sentiments.
Supreme Court cases
- Youngstown Sheet & Tube Co. v. SawyerYoungstown Sheet & Tube Co. v. SawyerYoungstown Sheet & Tube Co. v. Sawyer, , also commonly referred to as The Steel Seizure Case, was a United States Supreme Court decision that limited the power of the President of the United States to seize private property in the absence of either specifically enumerated authority under Article...
(1952) - Hamdan v. RumsfeldHamdan v. RumsfeldHamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
(2006)
See also
- Commander-in-ChiefCommander-in-ChiefA commander-in-chief is the commander of a nation's military forces or significant element of those forces. In the latter case, the force element may be defined as those forces within a particular region or those forces which are associated by function. As a practical term it refers to the military...
- The Imperial PresidencyThe Imperial PresidencyThe Imperial Presidency by Arthur M. Schlesinger, Jr. was written in 1973.This book details the history of the Presidency of the United States from its conception by the Constitutional Founders, through the late twentieth century...
- Unitary executive theoryUnitary executive theoryThe unitary executive theory is a theory of American constitutional law holding that the President controls the entire executive branch. The doctrine is based upon Article Two of the United States Constitution, which vests "the executive power" of the United States in the President.Although that...
- War Powers Resolution (War Powers Act of 1973)War Powers ResolutionThe War Powers Resolution of 1973 is a federal law intended to check the power of the President in committing the United States to an armed conflict without the consent of Congress. The resolution was adopted in the form of a United States Congress joint resolution; this provides that the...
Further reading
- Fisher, Louis (2004) Presidential War Power, 2d Rev. Edition. University Press of Kansas
- Hendrickson, Ryan C. The Clinton Wars: Congress, the Constitution and War Powers. Vanderbilt University Press, 2002
- Lawson, Gary, "Delegation and Original Meaning" (October 2, 2001). Virginia Law Review, Vol. 88, April 2002
- Madison, JamesJames MadisonJames Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
. Federalist No. 45, The Federalist Papers - Woods, ThomasThomas WoodsThomas E. "Tom" Woods, Jr. is an American historian, economist, political analyst, and New York Times-bestselling author. He has written extensively on the subjects of American history, contemporary politics, and economic theory...
. Presidential War Powers, LewRockwell.comLewRockwell.comLewRockwell.com is a 501 libertarian web magazine operated by Burton Blumert , Lew Rockwell , Eric Garris , and others associated with the Center for Libertarian Studies ; its motto is "anti-state, anti-war, pro-market"... - Yoo, John C.John YooJohn Choon Yoo is an American attorney, law professor, and author. As a former official in the United States Department of Justice during the George W...
, "War and the Constitutional Text" . University of Chicago Law Review, Vol. 69, No. 4, Fall 2002 - 2 Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed. 1937).