What power does the Constitution give the President in the area of war

Article I, Section 8 The Congress shall have Power To lay and collect Taxes, Duties, Imposts, and Excises... To provide for the common Defence and general Welfare of the United States... To Declare War... To raise and support Armies... To provide and maintain a Navy To make Rules for the Government and Regulation of the land and naval Forces.

Article II, Section 2

The President shall be Commander in Chief of the Army and Navy of the United States

Introduction

The U.S. Constitution divides war powers between the executive and legislative branches. Article 1, Section 8, gives Congress the power to declare war, "raise and support armies," maintain the navy, and establish rules and regulations for both. Article II, Section 2 gives the president unspecified powers as "Commander in Chief." Many scholars argue that the drafters placed primary offensive war power with Congress because they did not trust the executive branch, based on their own experiences with the English monarch. Today, people generally agree that the President's powers as Commander in Chief permit him to respond to sudden attacks and give him some defensive war powers; however, there is widespread disagreement about what else the President can do in exercising these powers. Some argue that the Constitution gives the President inherent war powers, which give him authority not spelled out in the Constitution to launch offensive operations, even though the Constitution appears to give such power to Congress. Whenever the U.S. military has become engaged in combat or war, issues about the appropriate exercise and division of power between the two branches have been raised. These debates have been played out daily in our newspapers since the September 11 attacks. What balance of powers should exist between the President and Congress with respect to war? Do the exigencies of modern society and modern warfare call for ways of thinking about these powers in ways that may have "astonished" the framers of the Constitution?1Does it make a difference how these powers are exercised when the individual rights of citizens as opposed to suspected foreign enemies are affected? The starters for this topic will help you consider the exercise of war powers and examine the arguments about appropriate division of power between Congress and the President.

Starter 1: Checkout

Starter 2: Youngstown Sheet & Tube Company v. Sawyer

Starter 3: The Federalilst No. 4, John Jay

Download

Editor's Note:

The following is a summary of the first session of the Congressional Study Group on Foreign Relations and National Security, a program for congressional staff focused on critically engaging the legal and policy factors that define the role that Congress plays in various aspects of U.S. foreign relations and national security policy.

On Feb. 28, 2020, the Congressional Study Group on Foreign Relations and National Security convened in person in the U.S. Capitol building to discuss the president’s war powers under Article II of the Constitution. As underscored by the U.S. airstrike that killed Iranian military commander Qassem Soleimani, the executive branch maintains that the president has broad authority to use military force overseas without congressional authorization. But what is the actual scope of this authority? And what can Congress do if it is used irresponsibly?

At this session, the study group was joined by two outside experts: Stephen Pomper, the Senior Director for Policy at the International Crisis Group and a former senior official at the National Security Council and State Department; and Professor Rebecca Ingber of the Boston University School of Law, who is also a former State Department attorney. The study group coordinator, Scott R. Anderson of the Brookings Institution, also made some substantive remarks. Prior to the session, the study group was referred to several short pieces of background reading, including:

In addition, Anderson circulated a handout (download here) providing information on relevant legal authorities, including the scope of authority claimed by the executive branch and relevant statutes like the War Powers Resolution.

Pomper began the conversation by discussing the scope of the president’s war powers and Congress’s effort to regulate them through the 1973 War Powers Resolution. Noting that the executive branch generally maintains that the president has the authority to engage in at least limited warfare without congressional authorization, he identified the War Powers Resolution as the main congressional effort to set limits on this authority, but observed that it had been rendered ineffective by several ambiguities in the law and subsequent executive branch interpretations. He then identified a range of possible statutory changes that might improve the law’s effectiveness, including a clearer definition of hostilities, a narrower definition of emergency circumstances in which the executive branch can use force without congressional authorization, a more limited timeframe for such uses of force, and an appropriations cut-off where the executive branch exceeds these limits.

Ingber went on to identify some other tools in Congress’s toolkit that might be used to regulate the use of presidential war powers. Congress, she noted, has extensive control over the structure of federal agencies and may be able to influence decision-making around war powers issues by creating (or abolishing) offices with relevant areas of responsibility, or adjusting the influence of certain offices through the provision of specific authorities and funding. In particular, Congress can make individual officials responsible for making relevant determinations or certifications or delivering certain products, allowing them to incorporate a greater degree of career civil servant input by making assignments to lower ranking officials while promoting more inter- and intra-agency discussion by making assignments to more senior officials.

Anderson briefly closed with two more technical issues that have posed a problem in the war powers context: INS v. Chadha’s apparent invalidation of the legislative veto and the court’s resistance to adjudicating war powers questions. In place of the legislative veto that was originally built into the War Powers Resolution, he argued, Congress could use sunset provisions and expedited procedures to re-assert some control over war authorizations and other delegations that, post-Chadha, Congress might not be able to reign in unless it can override a presidential veto. On justiciability, he also noted that, while the courts have often declined to reach the merits of war powers cases on mootness, ripeness, and political question doctrine grounds, recent Supreme Court decisions suggest that the courts have an obligation to reach the merits where the president is acting contrary to a clear statutory directive. Hence, Congress may be able to enhance the justiciability of such disputes simply by enacting clearer statutory limits that are not subject to flexible interpretation. In addition, Congress could ensure a plaintiff has the standing necessary to bring suit by creating private causes of action or even empowering itself to bring suit over executive branch actions that are contrary to statute and intrude on its own constitutional authorities.

From there, the study group moved into open discussion. Topics included the shift away from the original role for Congress in war-and-peace decisions envisioned by the Framers; the role played by recent Authorizations for Use of Military Force in expanding presidential control over use of force decisions; and recent debates over the use of expedited procedures associated with the War Powers Resolution in relation to Iran and Yemen.

Visit the Congressional Study Group on Foreign Relations and National Security landing page to access notes and information on other sessions.

Dear Educators,

The Education and Public Programs Team at the Nixon Library is pleased to remind you that the National Archives and Records Administration (NARA) continues to be an excellent source for entertaining and historical content! Simply follow the links below for additional information.

“...to fulfill the intent of the framers of the Constitution...and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities."

Joint Resolution of November 7, 1973, Public Law 93-148, 87 STAT 555, Concerning the War Powers of Congress and the President; 11/7/1973; NAID 7455197

The War Powers Resolution of 1973 (also known as the War Powers Act) "is a congressional resolution designed to limit the U.S. president’s ability to initiate or escalate military actions abroad.” As part of our system of governmental “checks and balances,” the law aims to check the executive branch’s power when committing U.S. military forces to an armed conflict without the consent of the U.S. Congress. It stipulates the president must notify Congress within 48 hours of military action and prohibits armed forces from remaining for more than 60 days.

The Constitution divides war powers between Congress and the president. Only Congress can declare war and appropriate military funding, yet the president is commander in chief of the armed forces.

Photograph of Action Viewed from the USS Maddox During the Gulf of Tonkin Incident; 8/2/1964; NAID 594290

Nevertheless, heavy U.S. military involvement in the prolonged Korean and Vietnam conflicts of the 1950s and 1960s without congressional declarations of war blurred the lines between presidential and congressional power regarding the approval and conduct of war.

President Richard Nixon Points to a Map of Cambodia during a Vietnam War Press Conference; 4/30/1970; NAID 194674

Congressional frustrations peaked during President Nixon’s administration when secret bombings of Cambodia during the Vietnam War were ordered without congressional consent. Congress passed the War Powers Resolution of 1973, intending to limit the President’s authority to wage war and reasserted its authority over foreign wars.

President Nixon vetoed the bill. However, Congress overrode his veto, and the resolution became law following the U.S. withdrawal from Vietnam in early 1973.

Since the War Powers Resolution of 1973, sitting Presidents have submitted over 132 reports to Congress. These include the airlift and evacuation operations carried out in Cambodia(1975), committing forces to Beirut, Lebanon (1982/83), the Persian Gulf War (1991), and beyond. Challenges to the resolution include Ronald Reagan's deployment of troops to El Salvador in 1981, the continued bombing of Kosovo during Bill Clinton's administration in 1999, and military action initiated against Libya by Barack Obama in 2011.

Photograph of President George H. W. Bush Enjoying Thanksgiving Dinner with Troops; 11/22/1990; NAID 186423

The War Powers Resolution has been controversial since its inception. The executive branch continuously cites the need for greater flexibility in militarily protecting U.S. interests abroad, while the legislative branch states its need to maintain its check on presidential power.

Using DocsTeach, the National Archives’ online tool for teaching activities through primary resources, we invite you to explore the War Powers Resolution’s complete transcript here. Additionally, the National Archives has assembled a comprehensive lesson on how the United States conducts its wars. Have your students investigate how the constitutional powers to initiate war exercised by the legislative and executive branches of the Federal Government at several critical moments in American history.

Please feel free to contact us at NixonEducat if you have any questions.

Stayed tuned for regular updates from the Nixon Library Education and Public Programs Team.

Sincerely,

The Nixon Library Education and Public Programs Team