The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This is the fourth in a series of posts about my new book, Contested Ground: How to Understand the Limits of Presidential Power. The last two posts have been about domestic policy. Today, I'm going to gift gears to talk about the war power. This is one of the most fraught topics in constitutional law, with lives literally at stake. I'm keenly aware that some people have dedicated years to studying the President's role in foreign affairs and the use of force. What follows is my best effort to make sense of the debate.
The Constitution contains five provisions granting military powers to Congress, and two provisions (or at least, arguably two) granting military powers to the President. The most important grant to Congress seems to be the power to declare war, which suggests by implication that only Congress can start a war. Like most other issues about the war power, however, the scope of the power to declare war is contested. Some, like my colleague John Yoo, consider it an archaic process that had lost relevance even by the time of the Framing. Others argue for a broader understanding of what it meant to declare war.
The clearest grant to the President is the Commander-in-Chief clause. I had always assumed that this was a broad grant of discretion to the President in deploying the military, subject only to whatever restrictions flow from the specific powers granted to Congress—most notably, Congress's power to declare war. In researching the book, however, I was surprised to learn that the title of "command in chief" was not a special mark of distinction conferred on the President, but instead was a standard designation for military commanders. The clause seems more designed to ensure civilian control of the military than to confer broad discretion on the President over the use of force.
That leaves the Vesting Clause. The argument there is that the "executive power" was generally understood to include control over the use of force, including the power to go to war. In England, that power was vested in the King. I'm prepared to believe that the President has some ability to initiate the use of force, at least in cases of attack by another country. But I'm doubtful that the President's power extends to the point of starting a war. To some extent, I rely on a "dog that didn't bark" theory. If the Constitution was understood to give the President unilateral power to start wars, you would think that this would have been a topic of discussion during the Constitutional Convention and the ratification debates.
I also find a bit of post-enactment history particularly telling. This episode involved military conflict with a Creek tribe. Congress had authorized the use of the militia to support the regular army in defending the frontier. It seemed to assume that the President needed no special authority to use the regular army itself for defensive purposes. In an episode involving the Wabash Indians, Washington apparently read his authority as extending to attacks in reprisal for Indian marauders. This was criticized by at least one Senator as beginning a war without a congressional declaration.
Washington may have thought that reprisals were encompassed within the authority to defend the frontier, but he apparently did not think he was authorized to conduct purely offensive operations. There was pressure on Washington to take the offensive. He responded that he had been preparing for offensive measures against the Creeks whenever Congress gave the word: "The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject, and authorized such a measure." Apparently, he did not have in mind a formal declaration of war, which was never issued, but Congress did vote to support the offensive measures Washington advocated. Thus, Washington seemed very clear about who had the power to start an offensive war. And it wasn't him.
Since I'm not an originalist, the Founding-era history isn't decisive for me. Whatever may have been the intentions of the Framers, later history has much to say about the President's power to go to war. Unfortunately, the lessons of that history are controversial. There has been a lot of variation in how the President and Congress have interacted regarding the decision to use military force. I won't try to cover all that history in this setting. Nothing about the war power is uncontroversial. For me, at least, the general outline of the history is that Presidents have used military force on small scales, often for short periods, in order to protect American citizens and property. However, except in response to attack, Presidents have not felt free to take the country to war without congressional authorization in some form.
The major exception in modern times is the Korean War. It seems clear that Congress would have supported Truman's decision to use troops. Truman and his advisors feared, however, that a formal declaration of war would escalate the conflict. Truman's legal theory was based on the U.N. Charter. He argued that entering Korea was not an act of war under the Charter, since it was at the behest of the Security Council, and that Congress had implicitly consented by joining the U.N. At least given the U.N.'s failure to achieve the kind of robust role envisioned by its founders, I find it hard to believe that Truman's argument would carry much weight today.
The biggest debate over the war power since then involved the Vietnam War. As a student, I was convinced that the war was unconstitutional because Congress failed to declare war. I now think, however, that the Bay of Tonkin resolution combined with other congressional support for the war was sufficient to legitimize our military presence.
I don't expect there will ever to be a consensus about presidential deployment of the military. The issues are too fraught. This is an area where my "Contested Ground" title seems especially appropriate. In the absence of judicial intervention to set boundaries, the issue will be settled by the political branches and ultimately by public opinion. It seems to me, however, that the War Powers Act is roughly consistent with what we know about the original understanding and with the evolving practice. Constitutional law can help shape decision making but cannot ultimately control outcomes.
For the final post in this series, I'll be discussing impeachment, the ultimate check on the presidential actions.