Breakdown: Does the President have the Power to Declare War?
I listened to President Obama’s speech yesterday, and the part that struck me the most was his statement that, though he had the authority to issue the military strike against Syria, he had decided to ask Congress for permission instead. This begs the question - who controls the military? Can the President declare war? Why or why not?
Well, let’s break it down.
Just who’s in charge here - Congress or The President?
The framers of the Constitution meant for Congress to have more power than the President. In the Federalist Papers (articles written by the framers of the Constitution to allay fears and convince people the Constitution was a good idea), Madison wrote “..it is not possible to give to each department an equal power of self defense. In republican government, the legislative authority necessarily predominates”.
Article I Section 8 of the Constitution, “The Powers of Congress”, spells out seventeen explicit powers of the legislative branch over society, the economy, foreign affairs, and the military, while Article II, Section 2, which details the power of the executive, gives only three relatively vague (though significant) powers: to command the military, make treaties and appoint ambassadors, and to fill up vacancies in the Senate during a recess.
While each branch of the government is meant to have its own place and powers, the framers of the Constitution meant for the legislature to be the predominant branch of government.
Okay..so Congress is meant to be more powerful. So who can declare war?
Congress. The President does not, because the Constitution says he doesn’t.
Others must have worried about the executive taking control of the military, because once again the framers of the constitution had to quell fears of executive dominance. In Federalist Paper 61, Hamilton writes, “the President will have only the occasional command of such part of the militia of the nation as by legislative provision which may be called into the actual service of the union…the declaring of war and to the raising and regulating of fleets and armies..all appertain to the legislature”.
In Section 8, Congress’s power over the military is mentioned five times: the power to call forth the Militia, declare war, raise and support Armies, provide and maintain a Navy, and to organize, arm, and discipline the militia. The executive’s power is only mentioned once, that the President “shall be the Commander in Chief of the Army and Navy of the United States, and of the Militia of the States…when called into the actual Service of the United States”. Though command of the military is an enormous power, it is only given to the executive when Congress has called the military to service.
Alright! Done Deal. What’s the problem?
The problem is that presidents have been finding workarounds to this since the country began. In most cases, they just blatantly disregard this provision. Presidents have been engaging in hostilities, committing troops, and utilizing the military and then running to Congress to back them up very nearly since the country began.
- President Lincoln suspended habeus corpus, approved naval blockades, extenuated military enlistment, and augmented the size of the army and navy, without asking Congress before any permission.
- The Korean War was not formally declared.
- Neither was the Vietnam War.
- Ronal Reagan invaded Grenada without Congress’s permission.
- George Bush senior deployed troops to Somalia.
- Bill Clinton committed troops to NATo’s action in Yugoslavia in ‘99.
You get the point. The provision that’s meant to keep the executive branch from effectively controlling the military is little more than a joke. Presidents since Abraham Lincoln have claimed that their role as Commander in Chief gives them the right to do what they feel is necessary to protect the United States. Whether they are correct or not is a question for scholars of the Constitution.
But What About the War Powers Act?
Good question. In 1973, Congress got sick of its inability to keep the president from doing what he liked with the military, and passed the War Powers Act. Fun fact: President Nixon vetoed it, but Congress was united enough to overcome his veto with a greater-than-two-thirds majority vote.The War Powers Act requires the president to inform Congress before committing troops abroad in military action. If he does, he has 60 days, with the option of a 30 day extension, to get them out (sound familiar?). In order for the campaign to continue, war must be formally declared by - you guessed it - Congress. The War Powers Act concedes that the President is going to use military force without Congress’s former consent, for good or for ill. But it constrains his ability to do so by giving him a very small window before he must seek Congress’s approval for further action.
So..he does have the authority?
Whether the President has the authority to commit military forces is a tricky question, but history has shown time and time again that he does have the ability.
The War Powers Act tacitly gives POTUSes permission to utilize military force, if only by acknowledging that they’ll do so anyway and constraining them after the fact. "Declaring war" is just a formality, and not particularly important. The most important question is, "Does the President have the ability to authorize military action?", and for better or worse the answer to that question is "yes".
As I mentioned before, whether he should have this ability is a tough question. Strict interpretation of the Constitution would lead to an answer of “no”. Recognizing that the world is complicated, Congress is a mess, and sometimes the executive may have to act quickly to ensure the safety of the United States might lead to an answer of “…maybe”.
Alright, so what about Syria?
The strike against Syria falls into a grey zone. He may not be putting “boots on the ground”, but he is still committing troops and forces to combat operations. Precedent shows that Obama’s statement during his speech was also in the grey zone between right and wrong: though he may have the ability to commit the military without Congress’s approval as other presidents have done, whether he has the authority is a question of Constitutional interpretation.
Just because presidents have always extended the power of their office doesn’t make it right. The checks and balances meant to keep the United States government in equilibrium have become so strained it is a wonder they still work at all (if, indeed, they still do).
Though Obama may have the ability to begin military action without Congress’s consent, as a Constitutional scholar he ought to know that he probably shouldn’t. His choice to go to Congress with the question of military action - though he refused to say he wouldn’t go ahead and authorize military action if Congress voted against him - shows that hey, maybe he realizes this. The Constitution has been stretched and skewed from its original balance of powers continuously for hundreds of years. If power continues to flow inexorably into the hands of the executive, I don’t know exactly where it will lead us, but I’m confident it won’t be to a good place.
The Constitution of the United States.
Rossiter, Clinton, ed. The Federalist Papers. New York: First Signet Classic, 2003.
Kernell, Samuel; Jacobson, Gary C.; Kousser, Thad. The Logic of American Politics.