Here is an overview of the subject:
Presidential War Power
The Authority of the United States President to Go to War
Max Hilaire
Introduction
Since the founding of the Republic, Congress and the President have waged battle over which branch of the government has the constitutional authority over taking the nation to war. The Constitution of the United States does not specifically grant the President the authority to go to war. Instead the Constitution gives Congress the authority to declare war and to raise and support Armies, and provide and maintain a Navy ( Article 1, sec.8). The President is the Commander-in-Chief of the Army and Navy of the United States, and of the militia of the several states, when called into actual Service of the United States (Article 2, sec.2.).The Constitution does not state specifically whether the President commands the armed forces in peacetime as well as during wars. Nor does it say specifically that Congress has to declare war for the President to become the Commander in Chief. Successive Presidents have interpreted the Commander in Chief clause differently and when necessary invoked it to justify deploying the military abroad. The President can also rely on other constitutional or extra-legal doctrines to justify his actions.[1]
In the past 200 hundred years American Presidents have deployed the United States military in a number of conflict situations abroad without Congressional authorization. In the history of the United States, Congress has only declared war five times: the War 1812, the Mexican war of 1848, the Spanish-American of 1898, World Wars I and II, and the Korean War.[2] On the other hand, the President has deployed forces into hostility over thirty times without Congressional authorization.[3] The President usually deploy the military first and then inform Congress, which in turn endorses the President’s action. Congress has generally supported the decision of the President to deploy the armed forces abroad by passage of joint resolutions. These joint resolutions are not declarations of war, per se, but rather a demonstration of Congressional intent to support the troops while they are in a hostile environment.
During the Vietnam War Congress passed the Gulf of Tonkin Resolution, giving President Johnson broad powers to retaliate against North Vietnamese attack on American vessels in the Gulf of Tonkin. North Vietnam had previously attacked two American vessels, the Maddox and the C. Turner Joy. President Johnson in return ordered U.S. warplanes to bomb North Vietnamese torpedo bases. The resolution was not a declaration of war, however, Johnson used it to justify increasing American involvement in the Vietnam War. Following Vietnam, Congress passed the War Powers Act in 1973, in an attempt to curtail the authority of the President to wage war without Congressional authorization.[4] The War Powers Act was meant to constrain the President’s ability to wage war and to give Congress a voice in matter of war. However, as we will see, the War Powers Act has done little to curtail Presidential war powers.
The Framers of the United States Constitution were careful not to place the power to go to war and to command the armed forces in the hands of one person, hence, they gave the authority to declare war to Congress and made the President the Commander in Chief. The Framers distrusted both executive and military power and believed that the potential for tyranny was greater when the two were combined. The Framers considered war such a serious matter that they decided to place the decision in the deliberative body of the United States Government, that is the Congress.[5] The Framers, therefore, conferred an office rather than a function on the President. The Framers feared replicating the British model where the Monarchy had the power to raise the army and to declare war. They concluded that under the British model too much power was concentrated in the hands of the King, who they believe could lead the nation into an unnecessary war. After considerable debate the Framers gave the President the power to repel attacks against the nation and to take sudden action to protect the national security of the nation. The Framers gave Congress the power to declare war, to raise and support armies and provide and maintain a navy.[6] Congress can declare war but the decision to go to war rest solely with the President. The President has no legal obligation to comply with a Congressional declaration of war. This issue surfaced prior to the United States entry into the Spanish-American war. When a member of Congress reminded President Cleveland that the Constitution gave Congress the right to declare war, the President responded by saying that he was the Commander in Chief.[7]
The President and Congress frequently disagree over the issue of who has the authority to take the nation to war. The President will try to assert his war making power by invoking his Commander in Chief power or some other residual, implied or inherent powers found in the nation’s sovereignty, the authority to conduct the foreign policy of the nation or his executive authority. For national security reasons or the need to maintain secrecy of an operation, the President may not inform Congress in advance of his decision to deploy the military abroad. The President tends to consult only after the fact and when it is politically feasible to do so. When the President consults Congress in advance, he is perceived as weak or indecisive. When the President consults Congress before deploying the armed forces abroad, he does so out of sheer courtesy. He is not legally obligated to seek a Congressional declaration of war every time he wants to deploy the military. In practice Congress has generally supported the President’s decision to deploy the military. It may do so by passage a joint resolution or merely by issuing a statement to that effect. However, the text of the resolution is carefully worded so as to preserve the constitutional rights of both Congress and the President in matters of war. Congress tends to assert its authority to declare war in a joint resolution, and the President will maintain that his commander in chief powers gives him the right to deploy the armed forces without Congressional authorization. Consulting Congress before or immediately after deploying the armed forces abroad is politically wise, given the role public opinion plays in any military deployment. The President is conscious of the political implications if the mission fails and the impact if he plans to seek reelection or to be remembered as a great political figure.
Since the Constitution does not specifically grant the President authority to go to war, where does he get the authority to deploy the armed forces abroad? To justify his decision to go to war, the President will usually invoke one or more of the following doctrines: (1) The Commander in Chief Clause of the Constitution; (2) The “Sole Organ” authority of the President as affirmed by the Supreme Court in United States v. Curtiss-Wright Export Corporation ; (3) The “Executive Power” vested in the President of the United States; (4) The President’s Oath of Office to solemnly swear that he will faithfully execute the Office of President of the United States (the take care clause); (5) The right of self defense under customary international law and Article 51 of the United Nations Charter; (6) A threat to the national security interest of the United States; (7) Protecting American citizens at home or abroad; (8) Fulfilling the treaty obligations of the United States.[8]
Commander in Chief Clause
As Commander in Chief of the armed forces, the President has tremendous authority in the area of war and peace. Although the Commander in Chief clause of the Constitution does not specifically state that the President of the United States has the authority to deploy the military abroad, successive Presidents have invoked the clause to justify introducing the military in situations of hostility abroad without Congressional authorization. Successive Presidents have maintained that the authority to deploy the military abroad is inferred in the clause and that they need no prior authorization from Congress to act. Different Presidents have made the claim that one cannot be a commander in chief without commanding troops. Hence, the President maintains that the Framers of the Constitution did not anticipate a scenario in which the Congress would always have to declare war for the President to use the military abroad. Successive Presidents have also maintained that the use of the military is an extension of their foreign policy powers, therefore, it does not require them to seek Congressional authorization to carry out the foreign policy of the nation.[9] The President can also claim that United States troops are not engaged in warfare but instead are carrying out “police action” or peacekeeping, which does not require him to consult Congress.
It would seem very cumbersome for the President of the United States to refer to Congress every time he wants to use the military in a foreign adventure. Not all military incursions are wars, and there need not always be a declaration of war for the President to use the military. The Commander in Chief clause provides broad authority to the President of the United States to deploy the military without Congressional authorization. Every modern President has maintained that his authority as Commander in Chief allows him to deploy the military abroad without a Congressional declaration of war.[10]....
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