14.1 Constitutional War Powers of Congress and the President

The Constitution divides war powers between Congress and the President. Congress can declare war and fund the military, while the President commands the armed forces. This balance has shifted over time, with presidents increasingly initiating military action without formal declarations of war.

The War Powers Resolution of 1973 tried to limit presidential authority in armed conflicts. Recent debates focus on the scope of congressional authorizations for military force and the proper balance of war powers between the branches.

War Powers of Congress and the President

Constitutional Provisions Granting War Powers

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• Article I, Section 8 of the Constitution enumerates several war powers granted to Congress:
  • Power to declare war
  • Raise and support armies
  • Provide and maintain a navy
  • Make rules for the government and regulation of the land and naval forces
• Article II, Section 2 designates the President as the 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
• The Constitution does not explicitly grant the President the power to initiate military action without a declaration of war by Congress
• The Necessary and Proper Clause in Article I, Section 8 grants Congress the power to make all laws necessary and proper for carrying into execution its enumerated powers, including its war powers
• The War Powers Resolution of 1973 was an attempt by Congress to clarify and limit the President's authority to commit U.S. forces to armed conflict without congressional authorization

Limitations on Presidential War Powers

• The Constitution does not explicitly grant the President the power to initiate military action without a declaration of war by Congress
• The War Powers Resolution of 1973 requires the President to:
  • Consult with Congress before introducing U.S. armed forces into hostilities or situations where imminent involvement in hostilities is clearly indicated by the circumstances
  • Report to Congress within 48 hours of committing armed forces to military action
  • Terminate the use of U.S. armed forces within 60 days unless Congress declares war, authorizes the use of force, or extends the deadline

Congressional vs Presidential War Powers

Exclusive Congressional Powers

• Congress has the exclusive power to declare war, while the President, as Commander in Chief, has the power to direct the military forces once war has been declared
• Congress has the power to raise and support armies and to provide and maintain a navy, while the President has the authority to command and deploy those forces
• Congress has the power to make rules and regulations governing the armed forces, while the President, as Commander in Chief, has the authority to make tactical and operational decisions during military engagements

Presidential Powers and Limitations

• The President has the power to negotiate treaties, including peace treaties, but such treaties must be ratified by a two-thirds majority of the Senate
• The President has the authority to respond to sudden attacks or imminent threats without prior congressional approval, but must seek congressional authorization for sustained military action
• The President's role as Commander in Chief does not grant unlimited power to initiate military action without congressional approval, as demonstrated by the War Powers Resolution of 1973

Evolution of War Powers Balance

Early Precedents and Shift Toward Presidential Authority

• Early presidents, such as George Washington and John Adams, generally sought congressional approval before engaging in military action, recognizing Congress's exclusive power to declare war
• The Mexican-American War (1846-1848) marked a shift towards greater presidential authority, as President James K. Polk initiated military action without a formal declaration of war by Congress
• During the Civil War, President Abraham Lincoln exercised broad war powers, including suspending habeas corpus and issuing the Emancipation Proclamation, without explicit congressional authorization

20th Century Expansion of Presidential War Powers

• The 20th century saw a further expansion of presidential war powers, with presidents such as Woodrow Wilson, Franklin D. Roosevelt, and Harry Truman committing U.S. forces to major conflicts without formal declarations of war by Congress
  • Examples: World War I, World War II, Korean War
• The Vietnam War and the War Powers Resolution of 1973 marked a renewed effort by Congress to reassert its constitutional war powers and limit the President's ability to engage in prolonged military action without congressional approval

Recent Developments and Ongoing Debates

• Recent military interventions, such as the Gulf War (1991), the Afghanistan War (2001-2021), and the Iraq War (2003-2011), have raised ongoing debates about the proper balance of war powers between Congress and the President
• Presidents have increasingly relied on congressional authorizations for the use of military force (AUMFs) rather than formal declarations of war
  • Examples: 2001 AUMF against terrorists responsible for 9/11 attacks, 2002 AUMF against Iraq
• Debates continue over the scope and duration of AUMFs and whether they provide sufficient congressional oversight of military action

Judicial Interpretation of War Powers

Supreme Court's Reluctance to Intervene

• The Supreme Court has generally been reluctant to intervene in disputes between Congress and the President over the exercise of war powers, viewing such matters as political questions best resolved by the elected branches
• In Prize Cases (1863), the Supreme Court upheld President Lincoln's authority to blockade Southern ports and seize ships without a formal declaration of war by Congress, recognizing the President's power to respond to threats to the nation's security

Limitations on Presidential Authority

• In Youngstown Sheet & Tube Co. v. Sawyer (1952), the Supreme Court struck down President Truman's seizure of steel mills during the Korean War, holding that the President's power as Commander in Chief did not authorize him to seize private property without congressional authorization
• Justice Robert Jackson's concurring opinion in Youngstown outlined a three-part framework for evaluating presidential power:
  1. When the President acts with express or implied authorization from Congress, his authority is at its maximum
  2. When the President acts in the absence of congressional authorization, he operates in a "zone of twilight" where the constitutionality of his actions depends on the specific circumstances
  3. When the President acts in a manner incompatible with the express or implied will of Congress, his power is at its "lowest ebb"

Vietnam War Era Cases and Recent Developments

• In the Vietnam War era cases, such as Massachusetts v. Laird (1970) and Orlando v. Laird (1971), lower federal courts generally declined to rule on the constitutionality of the war, viewing the matter as a political question
• In recent years, the Supreme Court has addressed issues related to the detention and trial of enemy combatants, such as in Hamdi v. Rumsfeld (2004) and Boumediene v. Bush (2008), but has not directly ruled on the scope of the President's war powers vis-à-vis Congress
  • Hamdi v. Rumsfeld: The Court held that U.S. citizens designated as enemy combatants have the right to challenge their detention before a neutral decision-maker
  • Boumediene v. Bush: The Court ruled that foreign nationals held at Guantanamo Bay have the right to file habeas corpus petitions in U.S. federal courts