The war power

By David Adler

The decision to go to war represents the most solemn decision any government will make, since it risks the blood, treasure and future of the nation. Those grave consequences, alone, are reason enough for Americans to understand how the Constitution governs the exercise of this awesome authority before they go marching off to war. 

The war power, John Quincy Adams observed, is “strictly constitutional.” The framers of the Constitution vested in Congress the sole and exclusive authority to initiate military hostilities, including full-blown, total war, as well as lesser acts of armed force, on behalf of the American people. 

This sweeping power, located in Article I, section 8, provides, “Congress shall have power to declare war.” The War Clause grants to Congress the authority to formally declare war on a foreign nation, or rather to simply authorize military hostilities against an adversary, whether a country or terrorist organization. As Justice William Paterson wrote for the Supreme Court in 1806, in United States v. Smith, it is the “exclusive province of Congress to change a state of peace into a state of war.” 

Without exception, the court has held that it is for Congress, not the president, to initiate military acts. The framers did not vest in the president the authority to intervene in foreign wars, or to choose between war and peace, or to identify and commence hostilities against an enemy of the American people. Nor did they empower the president to initiate force abroad on the basis of his own assessments of U.S. security interests. These choices belong to Congress, under its exclusive authority to change a state of peace into a state of war.

The framers’ decision to grant the war power to Congress, and not the president, represented a dramatic departure from the English practice, and that of other nations around the world, which vested the authority in the national executive. Why did the Constitutional Convention reject the practice of executive war making?

Delegates to the convention had two principal reasons for granting the war power to Congress. First, they lived in dread fear of a strong executive, based on their reading of history and their own experience under King George, whom they viewed as a tyrant. History revealed that across the centuries, kings and despots and tyrants had often taken their people to war without merit, but rather in service of their own personal, political and financial interests. The framers, to a man, were opposed, as James Wilson of Pennsylvania explained, to giving “one man” the power to rush America into war.

Second, the framers were committed to the principle of collective decision making in foreign, as in domestic affairs, and embraced the process of discussion and debate from the nation’s representatives, assembled in Congress, on the relative merits of commencing war before risking the future of the nation.

It is truly remarkable that the framers, drawn from the four corners of the nation and in possession of different views and values on many different issues, would agree unanimously that Congress, not the president, should decide to take the country to war. There is in the convention’s history no comparable unanimity on an issue of any significance.

Many reading this far will want to call for a pause, and say, quite correctly: Well, the president, according to Article II, section 2, of the Constitution, “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.” What presidential power, they may ask, is derived from the Commander in Chief Clause of the Constitution?

The convention did not create this title; rather, they borrowed it from the English, who introduced it in 1639 in one of their wars with the Scots. This title was conferred on the ranking military official in any theater of battle. It did not include the authority to initiate war or to make foreign policy on behalf of England. This official was always subordinate to a superior official — the ministry, Parliament and the king.

The Continental Congress adopted this title with full knowledge of its history and practice when it named George Washington to be “first General and Admiral” and commander in chief in June 1775. It required of Washington the duty to “punctually” observe all instructions imposed by Congress, and to respond to any and all questions raised by members. In this capacity, Washington was very much subordinate to Congress.

This history and practice was thoroughly familiar to the framers of the Constitution when they wrote Article II. The president was given no authority to initiate war; that power had been granted to Congress in the War Clause. The president, as commander in chief, as Alexander Hamilton explained in No. 69 of the Federalist Papers, would essentially wear two hats.

First, when Congress declared war, or otherwise authorized military hostilities, the president would be expected to wage war, although always subordinate to instructions and directions from Congress. Second, if the nation were attacked, then the president would be expected to repel the invasion, leaving to Congress the policy question of what to do next. Congress might declare war on the offending nation, authorizing the president to attack the invading forces, for example, or it might sue for peace. The point is that Congress would determine the policy to be implemented.

The framers’ constitutional design to govern the war power largely held until 1950 when President Harry Truman asserted, for the first time in our history, executive authority to take the nation to war in Korea. Since then, virtually every president of both parties has asserted the war power. This practice has corrupted the Constitution. Next week, we discuss the reasoning behind this assertion of unilateral presidential power to make war.



