An Originalist Approach to the War Powers of Congress and the Executive

On January 20, 2017, Donald J. Trump was sworn in as the 45th President of the United States. Trump’s election to the Presidency is unique for several reasons; chief among them that he is the first President in American history never to have held public office or commanded an army prior to his inauguration. Nevertheless, President Trump has strong views on foreign policy, and has made several public statements suggesting a ready willingness to instigate military conflicts. In a September, 2016 speech, President Trump stated that “with Iran, when they circle our beautiful destroyers with their little boats, and they make gestures at our people, that they shouldn’t be allowed to make, they will be shot out of the water.”[1] He has also consistently promised to wage war on the Islamic State in Iraq and the Levant; at the Second Presidential Debate on October 9, 2016, Trump said that “I will knock the hell out of ISIS. We’re going to defeat ISIS […] I will tell you, I will take care of ISIS.” [2] More specifically, President Trump has shown a broad conception of his executive power by promising that “we’re going to convene my top generals and give them a simple instruction. They will have 30 days to submit to the Oval Office a plan for soundly and quickly defeating ISIS.” [3]

Trump’s claim of presidential authority to unilaterally initiate military conflicts is not new. On the contrary, it has been par over the last 70 years of American history. This trend started with the Korean War (1950-1953), in which President Harry Truman initiated American military mobilization by citing United Nations Security Council Resolutions 82 and 84, rather than congressional approval, as his source of legitimacy. As the executive branch took a more proactive role in military affairs, the legislative branch’s authority waned. Congress has not officially declared war since World War II, despite participating in, by some measures, over a hundred military conflicts,[4] five of which are normally described as wars in common parlance: the Korean War, the Vietnam War (1961-1973), the Gulf War (1991), the War in Afghanistan (2001-2014) and the Iraq War (2003-2010).

Against this rising tide of executive authority, Congress did take one strong stand; on November 7, 1973, Congress passed the War Powers Resolution into law, overriding the veto of President Richard M. Nixon with a 75-18 vote in the Senate and a 284-135 vote in the House.[5] The Resolution forcefully claimed that “the intent of the framers of the Constitution of the United States [was] that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities,” [6] an intention that, if true, had been infrequently followed in recent decades. The Resolution granted the President authority to introduce armed forces into hostilities or “situations where imminent involvement in hostilities is clearly indicated by the circumstances” under only three circumstances: “(1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces.” [7] It further required that, even if one or more of these three conditions is satisfied, “The President in every possible instance shall consult with Congress” before introducing armed forces into hostilities or situations where hostilities are imminent. [8] Since passage of the War Powers Resolution, presidents have largely either ignored it or explicitly deemed it unconstitutional. The three presidents after Nixon—Gerald Ford, Jimmy Carter and Ronald Reagan—all instigated hostilities without complying with the Resolution, rendering it moot.[9] Most recently, President Barack Obama claimed that the War Powers Resolution did not apply to military actions in Libya because there were no ground troops involved. [10] Judging by President Trump’s public statements, he too is unlikely to pay much heed to its stipulations. In sum, the War Powers Resolution has proven more of a political nuisance than a prohibition for presidents seeking to initiate military conflicts.

Clearly, war powers are a contested and contentious issue. The Constitution is the final arbiter in deciding what powers belong to which branches of government, but advocates of both sweeping executive authority and limited executive authority have cited various provisions of the Constitution as proof of their claims. In seeking clarification of these matters, it is perhaps wise to look to original intent of the Founding Fathers. The Republican Party certainly thinks so; its 2016 Platform “affirm[s] that all legislation, regulation, and official actions must conform to the Constitution’s original meaning as understood at the time the language was adopted.” [11] Given that the Republican Party now controls the Presidency, the House, and the Senate, foreign policy will theoretically be debated from a mainly originalist perspective. Constitutional debates on war powers from an originalist perspective could force a critical reexamination of the trend towards allowing the executive authority to initiate war—particularly since a close reading of the constitutional text, and the stated intentions of those who framed and ratified it, reveals that American presidents of the last century have claimed more authority in foreign affairs than the Constitution has ever properly granted them.

Article I, Section 8 of the Constitution delegates at least eight powers to Congress that relate to the declaration and execution of war, plus the Necessary and Proper clause, which affirm its ability to act on said powers:

“The Congress shall have Power […] To provide for the common Defence and general Welfare of the United States […]
To define and punish Piracies […] and Offences against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States […and]
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” [12]

Meanwhile, Article I, Section 9, which sets limitations on legislative authority, places no obvious restriction on Congress’ war power, and Article I, Section 10 specifies that “No State shall, without the Consent of Congress, […] keep Troops, or Ships of War in time of Peace […] or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.”[13] Article IV, Section 4, meanwhile, states clearly that Congress, and not the executive, should take the lead on handling civil war and rebellion if it all possible: “The United States […] shall protect each of [the States] against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.” [14] So this much is clear; Congress alone, and not the executive, has the power to declare war, to levy and fund military forces, and to claim authority over state militias, and it is the preferred branch to handle “domestic violence.” The other provisions granting war powers to Congress come into some tension with the powers delegated to the executive branch.

These executive powers are not as numerous as their legislative counterparts, nor so clearly defined. The very nature of the executive entails an inherent responsibility to national defense; the President is always actively in office, in contrast to Congress, which goes in and out of session. Congress has never disputed this power, and the War Powers Resolution granted the President authority to react unilaterally if the nation is attacked. It is the power of offensive or deliberated military action that has been in dispute. There are four constitutional provisions commonly cited as proof that the constitution grants the President broad power to start a military conflict of his own volition.

First comes the vague provision of Article II, Section 1 that “The executive Power shall be vested in a President,” [15] which, in the context of the Constitution as a whole is probably best interpreted as stating that the President executes those laws which the legislative branch prescribes. Alexander Hamilton wrote in Federalist Paper 72 that “[t]he actual conduct of foreign negotiations, […] the arrangement of the army and navy, the directions of the operations of war […] and other matters of a like nature” fall “peculiarly within the province of the executive department,” [16] but notably absent from his list is the power to instigate war. In the context of war powers, these executive powers listed by Hamilton would fit the thesis that Congress passes a declaration of war, as it would any other valid law, and the executive carries out the war in pursuance of executing the will of Congress. In his Pacificus-Helvidius debates with Hamilton, James Madison expounded on the President’s obligation to follow Congress’ lead:

“A declaration that there shall be war, is not an execution of laws: it does not suppose pre-existing laws to be executed: it is not, in any respect, an act merely executive. It is, on the contrary, one of the most deliberate acts that can be performed; and when performed, has the effect of repealing all the laws operating in a state of peace, so far as they are inconsistent with a state of war; and of enacting, as a rule for the executive, a new code adapted to the relation between the society and its foreign enemy.” [17]

There is next the Oath of Office, which Article II, Section 2 mandates the incoming President take before entering office: “‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’” Presumably, this oath suggests that the President does have real power to “preserve, protect and defend” the United States. However, all three of these verbs imply purely defensive power; authority to order offensive action against another country could apply to preservation, protection or defense only if it were a first strike to prevent an imminent attack—and even that is a generous reading of a vague oath which does not include any explicitly enumerated powers.

Last is the clause cited perhaps most frequently as granting the President broad military authority: the Commander in Chief clause. Article II, Section 2 states that “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” [18] The common reading of this clause is that the President has authority over all military commanders, and is, in effect, the highest ranking general and admiral in addition to his other duties. Hamilton, who held a much broader view of executive power than Madison or Thomas Jefferson did,[19] wrote in Federalist Paper 69 that the Commander-in-Chief power “would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy,” while the powers of “the DECLARING of war and to the RAISING and REGULATING of fleets and armies, […] by the Constitution under consideration, would appertain to the legislature.” [20] That the Commander-in-Chief power applies only to “supreme command and direction of the military and naval forces” would seem to suggest that the President has no authority to instigate military hostilities in peacetime, just as a general himself would have no authority to initiate war without permission from the civilian government.

Regardless of one’s interpretation of the Commander-in-Chief powers, it would also require a narrow view of Congress’ power to declare war for one to grant the President the power to initiate military conflicts. John Yoo, who served as Deputy Assistant Attorney General in the Office of Legal Counsel during the George W. Bush administration, has espoused such a view, claiming that declarations of war are only relevant to international law. In a 2005 interview, Yoo explained that:

“Declarations of war do not serve a purpose in the balance of powers between the president and Congress in wartime. They can play a role, under international law, in defining the nation’s legal status vis-à-vis an enemy, but this purpose has faded with the rise of wars of self-defense or those under international approval (where no declaration would be needed). War declarations do not play an important role in the domestic process of deciding on war.”

Supporters of Yoo’s narrow view of the War Declarations’ purpose will often point to the fact that, during the ratification debates of 1787, the framers of the Constitution contemplated delegating to Congress the power to “make war,” but opted instead to grant them the power to “declare war.” But a closer look at the debate regarding the use of “to make” or “to declare” shows that “to declare” was included for only two purposes: to leave the President authority to defend the nation from attack, and to clarify that once war is declared, the executive would conduct it. The transcripts of the August 17, 1787 debates recorded that “Mr. [James] Madison and Mr. [Elbridge] Gerry moved to insert ‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel sudden attacks.” [21] Further clarifying matters, Gerry assuaged Roger Sherman’s concern that “The Executive [should] be able to repel and not to commence war” by responding that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” [22] This clearly indicates that “to declare” was not intended to only apply to international law, but also to include the power to “commence war.” The second purpose of changing “to make war” to “to declare war” was to clarify that, after Congress declares a war, the President has the authority to conduct it. Footnote 29 of the August 17, 1787 debates notes that “On the remark by Mr. [Rufus] King that ‘make’ war might be understood to ‘conduct’ it which was an Executive function, Mr. [Oliver Ellsworth] gave up his objection, and the vote of [Connecticut] was changed to-ay[e].” [23]

Both purposes of changing “make” to “declare,” allowing the President to repel attacks without Congressional authority and giving him the ultimate authority of conducting a conflict legitimized by Congress, make no infringement on Congress’ sole authority to initiate military hostilities. Indeed, the debates clarify that the framers had no intention of granting the executive the power to initiate military hostilities. The founders repeatedly echoed this intention; George Washington, a soldier before a politician, wrote during his first term as President that “The Constitution vests the power of declaring War with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorised such a measure.” [24] President Thomas Jefferson agreed: “Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.” [25] James Madison wrote, as Helvidius, that “[t]hose who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced, continued, or concluded. They are barred from the latter functions by a great principle in free government.” [26] And even Hamilton, with his relatively expansive view of executive power, wrote in 1801 that “Congress shall have the power to declare war, the plain meaning of which is, that it is the peculiar and exclusive duty of Congress, when the nation is at peace, to change that state into a state of war.” [27] For these men, declaring war was not just a formality, and executive power did not encompass the authority to commence military hostilities.

These original intents are at odds with Yoo’s position that “[w]ar declarations do not play an important role in the domestic process of deciding on war.” It is clear that, at the very least, such influential figures as Ellsworth, Gerry, Hamilton, Jefferson, Madison, Sherman, and Washington had no intention of permitting the executive to initiate a military conflict without Congressional approval. And yet, over the last 75 years the United States has participated in dozens of military conflicts, [28] five of which are commonly described as wars,[29] without once even voting to officially declare war.

Yoo explains these phenomena by stating that the purpose of declaring war “has faded with the rise of wars of self-defense or those under international approval (where no declaration would be needed).” [30] But Congress’ first declaration of war was for the War of 1812—a superfluous action in Yoo’s eyes, since it was a defensive conflict where the United States was invaded by the United Kingdom. [31] Likewise in World War II, where President Franklin D. Roosevelt gave a public address asking Congress to declare war on Japan the day after the Pearl Harbor attacks. [32] President Roosevelt’s address to Congress ended with this telling request: “I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, 1941, a state of war has existed between the United States and the Japanese Empire.” [33] Roosevelt believed that war had already begun, but he still thought it necessary that Congress be the body to make the authoritative decision on the matter—even after the nation came under attack. Presidents once saw Congress’ declaration of war as necessary, even when the nation was already attacked by a foreign enemy.

Others have posited that, if the regime of a state is illegitimate, there is no need to declare war on said state. The conflicts in Vietnam and Korea were against communist forces, which the United States government saw as illegitimate, and the conflicts in Kuwait, Iraq and Afghanistan were fought against the dictator Saddam Hussein and the Taliban terrorist organization—again, entities seen as illegitimate. But Congress had declared war on regimes seen as illegitimate before; in President Woodrow Wilson’s 1917 War Message to Congress, on the eve of World War I, he said that Germany was not a “self-governed nation,” and that:

“We have no quarrel with the German people […i]t was not upon their impulse that their Government acted in entering this war. It was not with their previous knowledge or approval. It was a war determined upon as wars used to be determined upon in the old, unhappy days when peoples were nowhere consulted by their rulers and wars were provoked and waged in the interest of dynasties or of little groups of ambitious men who were accustomed to use their fellow men as pawns.” [34]

So the view that the President need not seek congressional approval for fights against illegitimate regimes, or in defensive, provoked conflicts, is a new one. But new as it may be, it is getting older by the year; Congress declared war 11 times in five separate conflicts in the 130 years from the War of 1812 to World War II,[35] but has made no war declaration in the 75 years since, despite ample opportunity. Congress did approve some of these conflicts, like the Vietnam War and the Iraq War, with authorizing resolutions prior to military engagement. But in cases such as the Korean War or Libya Intervention of 2011, the President acted unilaterally, without congressional approval.

This brings up one final, critical, piece of historical context; the United States’ armed forces barely resemble those used at the founding of the nation. An 18th Century military was simply not capable of offensive actions like those in Korea or Libya, not only because of the obvious technological differences, but also because the regular army maintained in peacetime was miniscule. The Founders were deeply phobic of standing armies; Thomas Jefferson argued that “There are instruments so dangerous to the rights of the nation and which place them so totally at the mercy of their governors that those governors, whether legislative or executive, should be restrained from keeping such instruments on foot but in well-defined cases. Such an instrument is a standing army.” [36] In a letter to Madison describing his views on the proposed constitution, Jefferson wrote: “I will now add what I do not like. First the omission of a bill of rights providing clearly and without the aid of sophisms for freedom of religion, freedom of the press, protection against standing armies [and other freedoms].” [37] Madison himself said that “A standing military force, with an overgrown Executive will not long be safe companions to liberty.” [38] Hamilton wrote in Federalist Paper 8 that a standing army “enhances the importance of the soldier, and proportionably degrades the condition of the citizen.” [39] Elbridge Gerry said at the debate over the proposed amendment which would eventually be ratified into the Second Amendment: “What, sir, is the use of a militia? It is to prevent the establishment of a standing army, the bane of liberty.” [40] Later, at the Constitutional Convection of 1787, Gerry gave perhaps the most colorful attack on standing armies ever spoken: “A standing army is like a standing member. It’s an excellent assurance of domestic tranquility, but a dangerous temptation to foreign adventure.” [41]

For a time, our nation’s military forces kept true to the Founders’ views on standing armies, and the vast majority of American infantry force was kept in the state militias. Over 90 percent of American infantrymen serving in the War of 1812 were state militiamen, not regular federal troops. [42] Such a system places another significant check on presidential power, as “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” [43] The power to call the militia into service is expressly delegated to Congress via Article I, Section 8: “The Congress shall have Power […to] provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” [44] So in the historical context of the founding, even if a president did want to initiate a military conflict without congressional approval, he would command such a meager force as to be practically impotent—a check that has since been lost. In President Dwight D. Eisenhower’s farewell address, the former Supreme Allied Commander noted that “[o]ur military organization today bears little relation to that known by any of my predecessors in peacetime.” [45] Perhaps this change helps explain some of the executive branch’s increased willingness to act unilaterally over the past half-century.

Regardless of cause, however, the historical trend over the history of the United States has clearly shifted towards increased executive initiative in war, and decreased, if not deceased, reliance on Congress to instigate military conflicts. This trend in war power allocation should not be confused with constitutional principle, as any faithful reading of the framers’ intentions reveals that if the War Powers Resolution errs, it errs not in claiming too much legislative power, but in claiming too little. Now is as good a time as any for Congress to reclaim its duties. The record of the Founders’ intentions is far too clear, adamant and unanimous for us to ignore their pleas.

[1] Johnson, Jenna. “Trump: Iranian boats that make improper ‘gestures’ will be ‘shot out of the water’.” The Washington Post, September 9, 2016. https://www.washingtonpost.com/news/post-politics/wp/2016/09/09/trump-iranian-boats-that-make-improper-gestures-will-be-shot-out-of-the-water/?utm_term=.e03a59c4121e.

[2] “Transcript of the Second Debate.” The New York Times, October 10, 2016. http://www.nytimes.com/2016/10/10/us/politics/transcript-second-debate.html.

[3] Shapiro, Ari, and Tom Bowman. “Looking Ahead To The War Against ISIS In 2017.” All Things Considered NPR (December 27, 2016). http://www.npr.org/2016/12/27/507142765/looking-ahead-to-the-war-against-isis-in-2017.

[4] Bogart, Brian. “US Conflicts Abroad Since World War II America Declassified.” Institute for Policy Research and Development. http://iprd.org.uk/wp-content/plugins/downloads-manager/upload/US%20Conflicts%20Abroad%20Since%20World%20War%20II%20Chronicling%20the%20Official%20History%20of%20US%20Conflict%20Dependence.pdf.

[5] H.J. Res. 542; Pub. L. 93-148 (1973); 87 Stat. 555; 50 U.S.C. 1541-1548. Passed over Presidential veto Nov. 7, 1973

[6] War Powers Resolution Sec. 2. (A)

[7] War Powers Resolution Sec. 2. (C)

[8] War Powers Resolution, Sec. 3.

[9] Murphy, Walter, James E. Fleming, Sotirios A. Barber, and Stephen Macedo. American Constitutional Interpretation. 5thth ed. St. Paul, MN: Foundation Press, 2014. 457-458

[10] Savage, Charlie, and Mark Landler. “White House Defends Continuing U.S. Role in Libya Operation.” White House Defends Continuing U.S. Role in Libya Operation, June 15, 2011. http://www.nytimes.com/2011/06/16/us/politics/16powers.html.

[11] “The 2016 Republican Party Platform.” (July 16, 2016): 9-10. https://www.gop.com/the-2016-republican-party-platform/.

[12] Art I Sec 8

[13] Art I Sec 10

[14] Art IV Sec 4

[15] Art II Sec 1

[16] Hamilton Federalist 72

[17] Madison, letters of Helvidius number 1 http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s15.html

[18] Art II sec 2

[19] Hamilton saw President Washington’s unilateral declaration of neutrality in the French Revolution as acceptable, while Madison and Jefferson thought the President needed to consult Congress before making such a decision.

[20] Hamilton, Federalist 69

[21] Madison Debates, 17 August 1787, http://avalon.law.yale.edu/18th_century/debates_817.asp#29

[22] ibid

[23] ibid, footnote 29

[24] Washington to William Moultree, 28 August 1793

[25] (Jefferson to Congress, 6 December 1805) http://founders.archives.gov/documents/Jefferson/99-01-02-2779

[26] Madison, Letters of Helvidius number 1 http://press-pubs.uchicago.edu/founders/documents/a2_2_2-3s15.html

[27] Alexander Hamilton, c. 1801

[28] Bogart, Brian. “US Conflicts Abroad Since World War II America Declassified.” Institute for Policy Research and Development. http://iprd.org.uk/wp-content/plugins/downloads-manager/upload/US%20Conflicts%20Abroad%20Since%20World%20War%20II%20Chronicling%20the%20Official%20History%20of%20US%20Conflict%20Dependence.pdf.

[29] The Korean War (1950-1953) the Vietnam War (1961-1973), the Gulf War (1991), the War in Afghanistan (2001-2014) and the Iraq War (2003-2010).

[30] Yoo, John. “An interview with John Yoo.” University of Chicago Press (2005). http://www.press.uchicago.edu/Misc/Chicago/960315in.html.

[31] Official Declarations of War by Congress, http://www.senate.gov/pagelayout/history/h_multi_sections_and_teasers/WarDeclarationsbyCongress.htm

[32] Franklin D. Roosevelt: “Address to Congress Requesting a Declaration of War with Japan,” December 8, 1941. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=16053.

[33] ibid

[34] Wilson, Woodrow. “Wilson’s War Message to Congress.” Washington, D.C. 2 Apr. 1917. Web. 2015. <http://wwi.lib.byu.edu/index.php/Wilson%27s_War_Message_to_Congress&gt;.

[35] The War of 1812, The Mexican War (1846), the Spanish War (1898), World War I (Germany and Austria-Hungary, 1917), and World War II (Japan, Germany and Italy in 1941 and Bulgaria, Hungary, and Rumania in 1942)

[36] Thomas Jefferson, Letter to David Humphreys (1789)

[37] Thomas Jefferson to James Madison, 20th December 1787. Papers 12:440

[38] James Madison, Speech before Constitutional Convention (6/29/1787).

[39] Hamilton, Federalist 8

[40] House of Representatives, Amendment to the Constitution, 17, 20, Aug. 1789

[41] Gerry, Constitutional Convention, 1787

[42] Mahon, John K. and Romana Danysh INFANTRY Part I: Regular Army, p. 23. Office of the Chief of Military History, United States Army, Washington, D.C., 1972, Library of Congress Catalog Card Number: 74-610219.

[43] Art II sec 2

[44] Art I sec 8

[45] Public Papers of the Presidents, Dwight D. Eisenhower, 1960, p. 1035- 1040 http://coursesa.matrix.msu.edu/~hst306/documents/indust.html

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