Background to War Powers
Conflict is defined by the Oxford English Dictionary as a "prolonged armed struggle, a state of mind in which a person experiences a clash of opposing feelings or needs, and a serious incompatibility of principles or interests." The most recent iteration-the war on terrorism- has stimulated further debate and puzzlement regarding the sharing of powers among the branches. 8
War has been a concern for all American Executives as many presidents assumed office during trouble times and made avoidance of war a key focus. The few who have formally declared war went through the constitutional process of asking Congress for, and obtaining, an official declaration. Some have seen it as their presidential prerogative, while others view it as a mandate from the people.
U.S. Constitution
The Constitution breaks down the war powers by listing what the executive can do in Article II and what the bicameral legislature can do in Article I. "The power to direct war and peace never fit neatly into the tripartite division of the executive, legislative and judicial powers that the framers used to order the political world," according to Richard Ellis. 9
Article II - Formal Powers of the President
History tells us the Founders were wary of too much concentration of power in one person since they had just thrown off the rule of a tyrannical king. At the Constitutional Convention it became clear a central leader was needed, so they took care to structure the executive branch in a way that would maintain a balance of power. The function of the president is laid out in Article II, Section 1 of the U.S. Constitution with a simple directive, "the executive power shall be vested in a President of the United States of America." This allows the president to carry out the laws of the land but does not say how he or she should do so. Much of what the American President does evolved from implied powers.
Clarification of executive duties concerning military powers, diplomacy and appointments appears in Article II, Section 2. The section begins, "the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states..." This phrase is commonly perceived as a way to have the military under the control of an elected civilian to prevent a dictatorship. Section 2 also implies that the president may execute or carry out laws as he sees fit since, "he shall have power to grant reprieves and pardons." With regard to foreign policy, "he shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the senators present concur..." Most presidents now make agreements with foreign countries, which do not need approval from senators.
The Constitution is a guideline for the presidency. Each man who has been elected to the executive office has made the position his own. A closer look at the Constitution reveals a more deliberate intent of the Founders. Article II states, "the executive power shall be vested in a President of the United States of America" while Article I reads, "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." This wording insures separation of authority and action in a democracy. One can interpret the vesting of powers to the president to be similar to a monarchy, with the sole individual able to exercise their own discretion. George Washington established the first three Cabinet positions with few complaints, as it seemed logical to have Secretaries of the Treasury, State and War to run the government.
Article I
Louis Fisher, prominent Constitutional author, believes war powers are enumerated in Article I. He shared his position with Congress many times in the past five years. Fisher argues, "Under the Constitution, the ultimate authority to control the deployment of military force lies with Congress. That principle is the bedrock of our governmental system." 10 He claims more power to "make war" has shifted to the executive branch and away from the rightful place in the legislative branch in the past sixty years. Fisher has addressed Congress often in the past five years to compel the legislature to take on what he sees as their duty, making war.
Article I, Section 8 of the U.S. Constitution grants Congress the power to "declare war," to "raise and support armies" and to "provide and maintain a Navy." These are often presented to students as the delegated powers of Congress or responsibilities not given to any other branch. In addition, Congress has the power to "make all laws necessary and proper for carrying into execution the foregoing powers..." This elastic clause grants Congress the ability to pass legislation that will further allow them to do their job. Often considered loose construction, this clause was not listed under the powers of the executive. (Art.I:8:18) Article II gives the Senate the ability to ratify treaties and play a part in foreign policy, but it does not give the president elasticity to make laws or change the direction of Article I.
The delegates of the Constitutional Convention had a brief discussion to change one key phrase in the draft. Instead of empowering Congress "to make war," the legislature was given authority a "to declare war." The executive maintained the ability to be commander in chief. Most delegates at the Constitutional Convention agreed that the war powers should stay with the Congress, but they also passed a motion, "leaving to the executive the power to repeal sudden attacks." This wording caused trouble for Barry Goldwater in the 1964 presidential election and remains open to various interpretations since president Truman sent American troops to Korea.
It is clear the war powers are enumerated in both Articles I and II. The Constitution grants Congress the power to "declare war" and raise and support armies yet the president has exclusive power to wage war and command the army in war and peacetime. The Founders must have intended a collective military action with the president and Congress acting in conjunction with one another.
President Washington's Neutrality Proclamation Causes Debate
General George Washington was an obvious choice to be the first president among the members of the Continental Congress. Some scholars even say the office was molded in part by Washington's demeanor and Revolutionary War experience. The Founders looked to him as a natural leader "The absence of any debate in the federal convention over the commander in chief clause is arguably further evidence that the framers did not imagine it to be an expansive grant of power..." 11 They did not expect the first president to be the start of controversy over the roles associated with the executive office. Yet, several Founders found problems with Washington's Proclamation of Neutrality in 1793 and start the first of many debates on the rightful distribution of power. 12
In writing a Neutrality Proclamation, Washington acted as Chief Diplomat. He recognized the state of war between Great Britain and France and their allies, then adopted the role of Protector of the Peace with his decree to stay out of the conflict. Washington's goal was "to adopt and pursue a conduct friendly and impartial towards the belligerent powers", but he warned Americans to not aid or abet "hostilities against any of the said powers." 13 This neutrality proclamation was official and within the powers of the president, but there was evidence of public talk against neutrality and pressure for politicians to respond. This discourse led a Federalist, Alexander Hamilton, to publicly support Washington's plan. 14
Hamilton's first letter in support of Washington's proclamation seems a bit paranoid. "The language in the confidential circles is that the constitution of the United States is too complex a system," he states, almost worried of another convention. Hamilton feared ambitious leaders who think the Constitution, "requires to be simplified in its structure, to be purged of some monarchical and aristocratic ingredients which are said to have found their way into it and to be stripped of some dangerous prerogatives, with which it is pretended to be invested." This talk by Hamilton may have led the Federalist to consider Alien and Sedition Acts while the Anti-Federalists rallied around free speech and individual liberties.
Pacificus
Hamilton wrote a second piece under the pseudonym "Pacificus" to defend, not only the President's policy, but his constitutional right to do so. His belief is in the president as Commander in Chief requires war powers, which "of necessity belong to the executive department to exercise the function in question" 15 Article II vests significant powers in the president as the executive, which may implied but are still significant.
Pacificus I was written in defense of President Washington's proclamation of neutrality. Hamilton, Secretary of the Treasury, stepped to the president's defense of the policy and the constitutional right to issue a proclamation. He refuted claims that the treaty was without authority, contrary to other treaties and unnecessary. He claimed the power was rightly suited in the executive branch as, "a correct and well informed mind will discern at once that it can belong [neither] to the legislature nor judicial department." Hamilton makes the argument, "It must then of necessity belong to the Executive Department to exercise the function in question—when a proper case for the exercise of it occurs." Hamilton saw the power of "keeping peace" as an executive privilege under the treaty making authority. He quoted Article II, "executive power shall be vested in a president", a line he approved in his Federalist 74.
Hamilton believed "sound construction" would give power to the executive under the general clause as he sees great difficulty in complete enumeration of all executives duties. In other words, Hamilton had no trouble with a loose interpretation of the constitution that gives the president general war powers to be determined at the time of office.
Hamilton used the language of the "mode of expression" to complete his inference. When describing Article I he quoted "all legislative powers herein granted shall be vested in a Congress of the United States." This he compared to, "the executive power shall be vested in a president of the United States." 16 He called the enumeration "as merely to specify the principal articles implied in the definition of executive power, leaving the rest to flow from the general grant of that power..." Hamilton believed in separation of powers with each branch having separate and unique duties restricted only by what is mentioned in other branches or specifically limited. Believing the executive can be the Protector of the Peace, Hamilton said it was the duty of the executive to preserve peace until war was declared. He thought the executive had a right to make treaties and a treaty was law so the executive must enforce the law. For Hamilton the wisdom of the constitution prevailed. "It is the providence and duty of the executive to preserve to the nation the blessings of peace. The legislature alone can interrupt them by placing the nation in a state of war." 17
Helvidius
After much encouragement from the Anti-Federalists for someone to counter Hamilton, James Madison wrote five essays under the name "Helvidius." This documented feud between Madison and Hamilton led to the creation of the first political parties. At the center of this fight was the belief in strict constructionist interpretation of the constitution opposed to loose constructionist or implied views. Madison's reply to Hamilton is directed at the role of foreign relations in the executive branch. Madison believes the power to declare war lies in the legislature, as enumerated in Article I, this exclusive power includes the right to assess the necessity to go to war or to stay at peace. In this line of argument, Madison negates the power of the President to proclaim the nation's neutrality.
Madison attacked the Federalist and supporters of Washington's Neutrality Proclamation by calling them secret monarchists, declaring "several features with the signature of Pacificus were [as of] late published, which have been read with singular pleasure and applause by the foreigners and degenerate citizens among us, who hate our republican government and the French Revolution." He hopes to clarify what he sees are inconsistencies with the wording of the constitution and the actions of the first president. Madison demanded that Congress, not the president, had full authority over all foreign affairs not enumerated in the Constitution. He sees the president without any legislative power, but purely executive, "the two powers to declare war and to make treaties, it will be impossible not to see that they can never fall within a proper definition of executive." He showed his belief in strict constructionist that became a hallmark of the Anti-Federalist Party, recent champions of the Bill of Rights.
James Madison takes a detailed approach to the enumeration of executive authority. He argues here that the power to declare war and make treaties can never fall within the definition of executive powers. The author reminds the reader of separate powers. "The natural province of the executive is to execute laws, as that of the legislature is to make laws. Therefore all executive acts must presuppose the existence of laws to be executed. To say that the making of treaties, being substantially of a legislative nature, belongs to the executive is to say that the executive possesses a legislative power. The power to declare war is subject to the same reasoning." 18
Madison reminds his readers of what Alexander Hamilton said in Federalist No. 75 about the process of treaty-making: "The history of human conduct does not warrant that exalted opinion of human virtue which would make it wise in a nation to commit interests of so delicate and momentous a kind as those which concern its intercourse with the rest of the world to the sole disposal of a magistrate, created and circumstanced, as would be a president of the United States." 19 The great debate over who governs starts with the constitutional convention and heats up with the constitutional test of Washington's Proclamation of Neutrality.
President Lincoln's Use of War Powers
The first three presidents had to consider military action against the Barbary Pirates and James Madison asked Congress for a declaration of war against Great Britain in 1812. The first president to expand the war powers was the 16th, Abraham Lincoln, since he was in office at a time of unprecedented change. Before Lincoln was inaugurated, seven states voted to leave the Union, and four would follow. In 1846 Lincoln criticized president Polk for making war with Mexico, "whenever he shall deem it necessary" which led to a censure of president Polk by Congress in 1848. 20
The American Civil War changed forever the way presidents would view the Constitution, since "it is during this war that the question of executive prerogative became most salient, both then and to generations of historians..." Lincoln knew his presidency was truly extraordinary from the outset as he was not on the ballot in seven southern states and secession had occurred prior to his inauguration. In using prerogative, he did so constitutionally, but only because the situation was, in fact, extraordinary: "The constitution is not its application in all respects the same." It is different "in cases of Rebellion or invasion, involving the public safety" than it is "in times of profound peace and public security." Lincoln thus broadened the habeas corpus clause, claiming that the Constitution allows whatever strong measures are necessary for its preservation. They are "good medicine for a sick man." 21 After some thought, he asked Congress to sanction his actions, and they passed legislation retroactively authorizing his action.
President Lincoln wrote a letter to the Speaker of the House on July 15, 1862 to keep the members in attendance until he finished drafting the Confiscation Act. The members of the House did not adjourn and passed Lincoln's Confiscation Act on July 17, 1862. Without this, the draft of the Emancipation Proclamation would not have followed. In every case, president Lincoln wrote an explanation to justify his actions as what he saw as within the guidelines of the Constitution. 22
Lyndon B. Johnson and War Powers
President Johnson was sworn into office under unusual circumstances. Kennedy had just died from a fatal gunshot and Americans were spellbound. The Cold War was raging and there were legitimate fears of another great war starting from the Cuban Missile Crisis. President Kennedy considered asking Congress for a declaration of war but resolved the crisis through a strong assertion of executive power as both chief diplomat and commander in chief.
Gulf of Tonkin Incident
The crisis in Southeast Asia was a foreign policy concern of three presidents before Lyndon B. Johnson. His predecessor, JFK, provided American weapons and increased American military advisors from 700 to 16,000 in the previous three years. For six months LBJ dispatched State Department officials and military experts to South Vietnam. Their recommendation was to add 6,000 more advisors to aid the South Vietnamese in their fight against the Communist North to uphold the policy of containment.
On Sunday afternoon, August 2, 1964 three North Vietnamese patrol boats fired upon the USS Maddox which was on routine patrol. The Maddox quickly returned fire. Air support and the destroyer C.Turner Joy were sent to support the Maddox. President Johnson's advisors met and agreed to issue a stern warning to the North Vietnamese of the "grave consequences which would inevitably result from any further unprovoked military action against United States forces." Two days later there appeared to be another attack, but the aircraft disappeared from radar swiftly and no boats were detected in close proximity to the Maddox. Robert McNamara, Secretary of Defense, did not want to wait for the Maddox to do a complete evaluation; he concluded there was sufficient evidence of an attack. 23
The gulf of Tonkin incident is described in the House of Representatives Committee on Foreign Affairs document as follows:
On Aug 2, 1964, the U.S. Department of Defense reported that three North Vietnamese PT boats had fired at the U.S. Destroyer Maddox while it was on a routine patrol 30 miles off North Vietnam. Three days later it announced that another engagement had been fought between the Maddox, the destroyer C.Turner Joy and North Vietnamese vessels, again in international waters. Both attacks had occurred in the Gulf of Tonkin.
Following the second attack, President Johnson asked for and received the support of Congress in the Vietnam conflict. The congressional approval was formally "A joint resolution to promote the maintenance of international peace and security in Southeast Asia." 24
Gulf of Tonkin Resolution
In August 1964, President Johnson was given reports of attacks on U.S. Vessels in the Gulf of Tonkin, off the coast of North Vietnam. Congress quickly passed legislation to authorize the use of armed forces. This huge grant of authority, what is often called a "blank check", to the president was seen as a key step in LBJ's escalation of the Vietnam War. This overseas conflict eventually drove Johnson from office and prepared the way for the War Powers Resolution of 1973. 25
While President Johnson was taking advice from his Secretary of Defense he lamented privately to a friend, Senator Richard Russell of Georgia, that Vietnam was "the biggest damn mess I ever saw." Johnson did not want to send American men to fight in Vietnam, but he had to uphold the promises of past presidents to not let the dominoes fall. 26 Congress deliberated for one day on a policy to maintain peace and security in Southeast Asia. They developed the following resolution to approve president Johnson's use of force to support the Southeast Asia Collective Defense Treaty in conjunction with the U.N. Charter and the U.S. Constitution: "Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, that the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression." 27
Congress Issues a Check -The War Powers Act
The joint resolution that came out of the 91st Congress was "to fulfill the intent of the framers" while checking the power recently bequeathed the executive. The act requires that the President shall in every possible instance consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement is clearly indicated by the circumstances. 28
Section 3 of the act requires the president, in every possible instance, to consult with Congress before introducing United States armed forces into hostilities. The next section sets guidelines for reporting specific cases "in the absence of a declaration of war," the president must continue to report to the top leaders of the House and Senate.
Section 5 is the main section for Congressional action to supersede the executive. It sets further limits on the president's use of troops without a declaration of war to 60 days, unless the Congress declares war, it then extends the time period an exception would occur if Congress is unable to convene.
The next three sections of the resolution list specific ways of reporting, procedures for discrepancies and interpretations of the joint resolution. The last sections show the support of two-thirds of the House and two-thirds of the Senate.
Richard Ellis believes, "the 1973 War Powers Resolution attempted to limit the president's power to send troops abroad, has been drenched in acrimonious controversy. Presidents from Richard Nixon on have refused to comply fully with the law because they see it as an unconstitutional infringement of presidential power." 29
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