The nation rightfully gets concerned whenever the President orders military force to be used anywhere in the world. Congress almost always waves the War Powers Resolution to challenge the President’s authority. The opposing political party invariably decries an overreach of Presidential authority. What is the reality of Presidential Power?
Article II, Section 2 of the US Constitution states that the “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; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any subject relating to the Duties of their respective Offices…”[1]
Article I, Section 8 states that “The Congress shall have Power … To declare war…”.[2]
Neither of these powers is qualified. The President is the one-and-only Commander in Chief. On the other hand, only Congress can declare war. The United States military takes its orders from the civilian leadership, but from whom?
If we look up the definition of commander in chief, we find essentially “officer in supreme command of a nation’s military” – which is what the Constitution says. If we check the etymology of the term, we find that George Washington was called the commander in chief already in 1778.[3] By the very nature of a military, there can only be one supreme commander.
On the other hand, maintaining a military costs money. Funding a military at war takes big money. The President is limited to the budget he is granted by Congress. A peace time military budget cannot sustain a prolonged conflict. Clearly, the Congress’ power to declare war is tied to the power of the purse.
The framers’ view
The founding generation considered a standing military as a threat to liberty. During the heat of debate between small and large states suffrage in the legislature on 29 Jun 1787, James Madison expressed the point.
In time of actual war, great discretionary powers are constantly given to the Executive magistrate. Constant apprehension of war has the same tendency to render the head too large for the body. A standing military force, with an overgrown Executive, will not long be safe companions to liberty. The means of defence against foreign danger have been always the instruments of tyranny at home. Among the Romans it was a standing maxim, to excite a war whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending, have enslaved, the people.[4]
After considering an Executive composed of multiple persons, the delegates to the Constitutional Convention decided unanimously on a single Executive (President) on 17 Jul 1787 (the day after the “great compromise”).[5] Article X from the Committee of Detail on 6 Aug 1787 made him the Commander in Chief.[6]
The pivotal day on clarifying the line between the powers of the President and Congress was 17 Aug 1787.[7] When the discussion started, the existing Article stated that Congress had the power “to make war”.[8] Charles Pinckney thought that the House was too large and slow. He thought that the Senate should have the power. Pierce Butler then claimed that the Senate suffered the same problems and that the power to make war should be vested in the Executive. At this point, Madison and Elbridge Gerry moved to change “make” to “declare”.
Mr. MADISON and Mr. GERRY moved to insert “declare,” striking out “make” war; leaving to the Executive the power to repel sudden attacks.
Mr. SHERMAN thought it stood very well. The Executive should be able to repel, and not to commence, war. “Make” is better than declare, the latter narrowing the power too much.[9]
Gerry later scolded Butler that he
“never expected to hear, in a republic, a motion to empower the Executive alone to declare war.”
Oliver Ellsworth then noted:
“There is a material difference between the cases of making war and making peace. It should be more easy to get out of war than into it. War also is a simple and overt declaration, peace attended with intricate and secret negotiations.”
Madison further clarified the framers’ view of war in Federalist 45 when explaining the balance between national and state power. They clearly understood that liberty and prosperity were dependent upon peace and security.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government.[10]
Oliver Ellsworth’s observation was perhaps the most important of all. Clearly the framers understood that peace was essential to liberty. As a consequence,
- In a republic, no one man should be able to get the nation into a war.
- Congress would deliberate and be slow to declare war.
- A declaration of war would require adequate funding.
- The President had to have the power to repel sudden attacks.
- He would be the supreme commander of the military.
- His use of the military was therefore restrained by legislative funding.
This seems pretty straight forward. What could go wrong?
Undeclared Wars
The first undeclared war for the United States was the Quasi-war during John Adams Presidency. The United States owed France money after the Revolutionary War. This debt became a source of conflict after the French Revolution. The new French government believed the US owed them; the US considered the debt to be owed to French monarchy that had been overthrown. In addition, the Third Congress had set funds aside to aid the French citizens of Saint Domingue that showed up on our shores after the Haitian slave revolt of 1794.[11] They considered the funding as settling the debt.[12] The French responded with privateering against US merchant ships. The result was two years of naval battles where the United States Navy proved to be a formidable power, capturing 85 French ships. Congress never declared war, but they authorized the President to use military force by legislation.[13]
So, we see it didn’t take long for the gap between Presidential and Congressional power to be exposed in the real world. Gaps like this exist in the Constitution by design. In keeping with Aristotle’s guidance,[14] James Wilson and James Madison both believed that a written constitution should be abstract and general.[15]
Here now, is the true key to understanding the Constitution. The Bill of Rights indeed protects the people from the national government, but the governmental structure defined by the Constitution depends upon the judgement (good, virtuous, or bad) of the government’s officers.
Since World War II, we have witnessed Presidents take offensive military actions without a declaration of war. This leaves us to ask whether the President is exceeding his powers as Commander in Chief, or if Congress prefers to avoid a declaration of war for political reasons. Those political reasons can either be internal or external (international). As we have seen, the framers understood that a nation at war loses liberty and prosperity. Not declaring war for internal political reasons when military action is undertaken elevates factional interests to the detriment of the whole. On the other hand, avoiding a declaration of war for international reasons may be prudent to avoid escalation.
Technology
The framers would be the first to acknowledge that they could not anticipate the future. The Quasi-war and the hostilities on the western frontier compelled them to abandon the desire for not having a standing military. They knew they would need a Navy during the Convention, but the frontier forced them to go beyond relying on the militia, creating the First American Regiment.[16]
More compelling than the western frontier, today’s military technology compels a standing military. Modern aviation eliminates the aquatic defense formerly afforded by oceans that separate continents. Any organization with ICBM technology can inflict death and destruction on any nation on the planet in a matter of hours. Repelling an attack today may require “bullet to bullet” accuracy to knock down offensive weaponry. Basic defense has gotten very expensive.
Deterrence has become a necessary extension to repelling attack. One of the under-appreciated aspects of the Constitution is that it makes the President both the Commander in Chief of the military and the primary for international negotiations. This allows the President to truly “speak softly and carry a big stick”.[17] But the President cannot effect deterrence without adequate funding from Congress. The Cold War was successfully concluded by the policy of Mutually Assured Destruction (MAD).[18] As much as we all might like a better situation, there is no putting the genie back in the bottle. We have the technology to destroy cities with the press of a button.
The War Powers Resolution
The War Powers Resolution was passed in 1973, overriding the veto of President Richard Nixon.[19] It requires the President to notify Congress of military action within 48 hours and restricts actions to 60 days without congressional authorization. It has never been challenged in court, but it should be clear that it is unconstitutional in its current form. Such a law could only be constitutional if it went through the Article V amendment process. It did not, and Congress has no constitutional authority to second guess the Commander-in-Chief. Philip Bobbitt is just one who has written about its unconstitutionality.[20] Most administrations and even members of Congress have acknowledged its unconstitutionality.[21]
That said, the framers fully intended to prevent the Commander in Chief from getting us into endless war. Since the Korean (non)War, Congress has enabled wars that are never declared. It is a perplexing problem that is complicated by the modern world’s dislike of declared war but love for undeclared “proxy wars”.
Conclusion
The President does in fact have the power to command military action to the limits of the funding provided by the legislative cycle. On one hand, the Legislature must adequately fund military action when that action is warranted. On the other hand, the Legislature should not continue to fund military action that is detrimental to the United States. There is no rule book to determine these affairs.
What about the Legislature’s power to declare war? The modern world presents a dilemma to Congress. They can either declare war or they could decide upon not declaring war and withholding funds. That might well come with a political price in either direction. Should the Korean War and Vietnam have been declared rather than simply funded? In reality, we can look at funding action as being a de facto declaration – without the political repercussions. In the balance of power, Legislators would rather be reelected than follow the nondelegation doctrine – which might either lead to declare war and fund it or to deny a declaration and not fund military action beyond what the Commander in Chief has committed.
The worst possible situation is for the Commander in Chief to put the military at risk without adequate funding. This was the situation during the Revolutionary War that actually motivated the framers to abandon the Articles of Confederation and design the Constitution. There is nothing in the Constitution that prevents this scenario. What the Constitution did was to align the funding power for the national military with the focus on national security. The Articles of Confederation lacked that alignment.
[1] http://avalon.law.yale.edu/18th_century/art2.asp
[2] http://avalon.law.yale.edu/18th_century/art1.asp
[3] https://www.etymonline.com/word/commander
[4] http://avalon.law.yale.edu/18th_century/debates_629.asp
[5] http://avalon.law.yale.edu/18th_century/debates_717.asp
[6] http://avalon.law.yale.edu/18th_century/debates_806.asp
[7] http://avalon.law.yale.edu/18th_century/debates_817.asp
[8] Article VII, Section 1, http://avalon.law.yale.edu/18th_century/debates_806.asp
[9] http://avalon.law.yale.edu/18th_century/debates_817.asp
[10] http://avalon.law.yale.edu/18th_century/fed45.asp
[11] Boyd, Joseph A. “Under the Bloody Hatchet of the Haitians”: Thomas Jeffersons Foreign Policy
concerning the Haitian Revolution, 1791-1806. Tampa, FL: University of South Florida, 2007.
[12] House Journal, 12 Feb 1794.” American Memory: Remaining Collections. Accessed March 23, 2019.
https://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID @lit(hj00255)).
[13] https://www.thoughtco.com/the-quasi-war-americas-first-conflict-2361170
[14] http://www.perseus.tufts.edu/hopper/text?doc=Perseus:text:1999.01.0058:book=4:section=1292a&highlight=particulars
[15] http://teachingamericanhistory.org/convention/debates/0726-2/, Wilson: “We should consider that we are providing a Constitution for future generations, and not merely for the peculiar circumstances of the moment.”
[16] https://history.army.mil/books/R&H/R&H-1IN.htm
[17] https://en.wikipedia.org/wiki/Theodore_Roosevelt
[18] https://en.wikipedia.org/wiki/Mutual_assured_destruction
[19] https://en.wikipedia.org/wiki/War_Powers_Resolution
[20] “War Powers: An Essay on John Hart Ely’s War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath.” Michigan Law Quarterly 92, no. 6 (May 1994): 1364–1400.
[21] https://www.nixonfoundation.org/2013/10/war-powers-resolution-40-years-constitutional-debate/
https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=4607&context=penn_law_review
