President Barack Obama has to date launched two wars without congressional authorization. One was against Libya ousting Moammar Ghaddafi allowing an Islamist takeover and murder of an American Ambassador and three others in Benghazi. He now has announced halfhearted aerial assaults on the Islamic State whose failure top generals are already openly predicting due to Obama's announcing to the enemy that ground troops are a priori off the table. In neither case did the President even pretend he required congressional authorization. I intend to explain the Constitutional requirements surrounding the initiation and execution of war. By doing so, it will become obvious that President Obama has failed to follow the Constitution.
One power that belongs to the Congress is in Article I, Section 8, Clause 12: The enumerated power "To raise and support Armies, but no Appropriation of Money to that
Use shall be for a longer Term than two Years." The next clause allows Congress "[t]o provide and maintain a Navy." If Congress truly wanted to end a war that the President started without authorization it could do so by defunding it. Congress always controls the power of the purse. The political implications of voting against funding for troops in harm's way is an obvious drawback to this power in this context. Nonetheless, it is worth noting at the outset.
However, most issues surrounding war powers deal with two basic, sometimes seen as competing, provisions. Congress' power "to declare war" in Article I, Section 8, Clause 11 with with the President's designated role in Article II, Section 2, Clause 1 which states "The President shall be Commander in Chief of the Army and Navy of the
United States."
While some legal or historical scholars (most prominently Professor John Yoo) have attempted to minimize Congress's power to declare war as pro forma and not an actual requirement, this does not bear the weight of the original historical record. The Constitution's clauses must be interpreted in light of their original meaning. Looking to what those who ratified the Constitution said about its meaning makes it much easier to interpret.
At the Constitutional Convention on May 29, 1787, this clause was debated. The draft language first proposed gave Congress the power to "make war." After an objection, James Madison, often labeled the Father of the Constitution, changed the wording to "declare." His notes state the purpose of the change was "leaving to the Executive the power
to repel sudden attacks." With this change, the motion was agreed to.
During the debate over the Constitution's ratification, the Federalist proponents of establishing the new Constitution discussed this power. In Federalist No. 4, John Jay, who would become the first Chief Justice of the United States Supreme Court, noted: "[A]bsolute monarchs will often make war when their nations are to get
nothing by it, but for the purposes and objects merely personal, such as
thirst for military glory, revenge for personal affronts, ambition, or
private compacts to aggrandize or support their particular families or
partisans. These and a variety of other motives, which affect only the
mind of the sovereign, often lead him to engage in wars not sanctified
by justice or the voice and interests of his people." Therefore, Alexander Hamilton explained in Federalist No. 69, that the president's Commander-in-Chief authority "would be nominally the same with that of the King of Great Britain, but
in substance much inferior to it. It would amount to nothing more than
the supreme command and direction of the military and naval forces, as
first general and admiral of the confederacy; while that of the British
king extends to the declaring of war, and to the raising and regulating
of fleets and armies; all which by the constitution under consideration
would appertain to the Legislature." During the Pennsylvania Convention to ratify the Constitution, James
Wilson, a future Justice of the United States Supreme Court, stated clearly: "This system will not hurry us into war; it is calculated to guard
against it. It will not be in the power of a single man, or a single
body of men, to involve us in such distress; for the important power of
declaring war is vested in the legislature at large: this declaration
must be made with the concurrence of the House of Representatives: from
this circumstance we may draw a certain conclusion that nothing but our
national interest can draw us into a war."
During the Constitutional Convention, and expressly stated during the ratification debates, the original meaning was made clear. The "declare war" power of Congress was no formality. It was an important check against monarchical tyranny. Congressional authorization was needed to start a war, with the caveat that the President need not wait for Congress if there is a time-sensitive need to eliminate an imminent attack on the nation. Once the war is declared by the House and Senate, the President then acts as Executive, which in this context translates into being the leading commander.
In 1793, President George Washington, who presided over the Federal
Convention, wrote to South Carolina Governor William Moultrie in regards
to a prospective counter-offensive against the American Indian Creek
Nation: "The Constitution vests the power of declaring war with Congress,
therefore no offensive expedition of importance can be undertaken until
after they have deliberated upon the subject, and authorized such a
measure." Notice the use of the word "offensive." This is contrast to "defensive" action thus paralleling the debate that took place in Philadelphia where the Constitution's language was changed to allow the President to "repel sudden attacks." Also in 1793, James Madison wrote letters to Alexander Hamilton under the psuedonym "Helvedius." In these letters he is explicit in delineating the original meaning of the Constitutional phrases in question. He wrote:
In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. Beside the objection to such a mixture to heterogeneous powers, the trust and the temptation would be too great for any one man; not such as nature may offer as the prodigy of many centuries, but such as may be expected in the ordinary successions of magistracy. War is in fact the true nurse of executive aggrandizement. In war, a physical force is to be created; and it is the executive will, which is to direct it. In war, the public treasures are to be unlocked; and it is the executive hand which is to dispense them. In war, the honours and emoluments of office are to be multiplied; and it is the executive patronage under which they are to be enjoyed. It is in war, finally, that laurels are to be gathered, and it is the executive brow they are to encircle. The strongest passions and most dangerous weaknesses of the human breast; ambition, avarice, vanity, the honourable or venial love of fame, are all in conspiracy against the desire and duty of peace.
He also wrote, "Every just view that can be taken of this subject, admonishes the public of the necessity of a rigid adherence to the simple, the received, and the fundamental doctrine of the constitution, that the power to declare war, including the power of judging of the causes of war, is fully and exclusively vested in the legislature." In a letter dated April 4, 1798, James Madison wrote to Thomas Jefferson: "The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legislature."
Often those who argue against an expansive role for Congress in having the full power to initiate war will cite President Thomas Jefferson's actions against the Barbary Pirates in Tripoli. But President Thomas Jefferson, who served as Secretary of State under President Washington, himself said in a statement before Congress specifically regarding Tripoli and the Barbary Pirates, that he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense." Congress did eventually authorize the President to instruct the commanders of armed American vessels to seize all vessels and goods of the Pasha of Tripoli "and also to cause to be done all such other acts of precaution or hostility as the state of war will justify." In a message to Congress in December, 1805 regarding potential military action to resolve a border dispute with Spain, President Thomas Jefferson acknowledged that "Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force.”
Of course, Alexander Hamilton in 1801 had an interesting minority perspective: "That instrument has only provided affirmatively, that, 'The Congress shall have power to declare War;' the plain meaning of which is that, it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; whether from calculations of policy or from provocations or injuries received: in other words, it belongs to Congress only, to go to War. But when a foreign nation declares, or openly and avowedly makes war upon the United States, they are then by the very fact, already at war, and any declaration on the part of Congress is nugatory: it is at least unnecessary." Firstly, Hamilton is known for later arguing for broader interpretation than he himself may have assured in the Federalist Papers, and it is his assurances made during the ratification debate that are the greater evidence of the true original meaning of any Constitutional passage. Secondly, even this interpretation is a check on Presidential authority. For "provocations or injuries received" still require Congressional approval for the use of force. It is only when the homeland or American forces are thrust into a state of war that it would render Congressional approval a formality rather than a requirement. Nonetheless, the mainstream view in the early years of our Republic was stated by Justice Joseph Story in his Commentaries on the Constitution in 1833: "The only practical question upon this subject would seem to be, to what department of the national government it would be most wise and safe to confide this high prerogative, emphatically called the last resort of sovereigns, ultima ratio regum. In Great Britain it is the exclusive prerogative of the crown... [But] the power to declare war [under the Constitution] may be exercised by congress, not only by authorizing general hostilities, in which case the general laws of war apply to our situation; or by partial hostilities, in which case the laws of war, so far as they actually apply to our situation, are to be observed."
In his War Message to Congress on June 1, 1812, President James Madison was convinced war was necessary against Britain, and he laid out that case. But he went to Congress for approval for this reason:
"Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events, avoiding all connections which might entangle it in the contest or views of other powers, and preserving a constant readiness to concur in an honorable re-establishment of peace and friendship, is a solemn question which the Constitution wisely confides to the legislative department of the Government."
At the Virginia Ratification debates in June 1788 the great orator Patrick Henry, arguing against ratifying the Constitution, said, "If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands, and if he be a man of address, it will be attached to him, and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design." Federalist Virginia Governor Edmund Randolph replied: "In England, the king declares war. In America, Congress must be consulted. In England, Parliament gives money. In America, Congress does it. There are consequently more powers in the hands of the people, and greater checks upon the executive here, than in England."
When President Obama initiated military action against Libya toppling its leader and changing its government, soon falling into the hands of Islamists, all without Congressional approval, he clearly violated the Constitution even taking the most Hamiltonian view of Presidential war powers. With the Islamic State, he once again has refused to seek Congressional authorization for his air strikes. It is a pattern. Even if both actions are justified as a matter of policy, not consulting Congress is unjustified as a matter of the Constitution. Before President George W. Bush initiated the wars in Iraq and Afghanistan, he received the requisite approval from Congress. In contrast, the current occupant of the White House is in violation of the Constitution, and therefore is acting, once again, as a usurper of power. Tweet
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