The President at War –

This fourth post is part of a series on posts I have made about my book. Contested Ground: Understanding the Limits to Presidential Power. Two of my previous posts dealt with domestic policy. Today’s post will be about war power. With lives at stake, this is one the most difficult topics in constitutional legal. It is not surprising that many people spend years studying the role of the President in foreign affairs, and how he uses force. Here is what I can do to help you understand this debate.

Five provisions in the Constitution grant military power to Congress and two (or perhaps two) that give military powers to President. Most important to Congress is probably the power of declaring war. It implies that Congress alone can declare war. The scope of Congress’ power to declare war, like many other questions about war power, is still contested. John Yoo (my colleague) considers it archaic and has lost its relevance since the Framing. Other people argue that we should have a better understanding of what it means to declare war.

The Commander-in-Chief Clause is the clearest gift to the President. I had always assumed that this was a broad grant of discretion to the President in deploying the military, subject only to whatever restrictions flow from the specific powers granted to Congress—most notably, Congress’s power to declare war. It was surprising to discover that “commander in chief”, while not an exclusive mark of distinction, was actually a common designation for military commanders. This clause appears to be more about ensuring civilian control over the military, than giving the President broad discretion in the use of force.

The Vesting Clause is now extinct. There is an argument that the “executive” power was understood to encompass control over the force and even the power to wage war. That power in England was held by the King. The President may have some power to use force in certain situations, such as when an enemy country attacks. However, I doubt that President Trump has the power to start a war. In a certain sense, I believe in the “dog that doesn’t bark” hypothesis. You would expect that the Constitution would give President the unilateral power to declare wars. This would be a subject of debate during the Constitutional Convention.

A little bit of history after enactment is also very helpful to me. This incident involved military conflict between a Creek tribe. Congress had approved the use by the militia of regular soldiers to protect the frontier. This seemed to assume the President didn’t need special authorization to use the regular military for defensive purposes. Washington’s authority was apparently extended to attack Indian marauders in an episode concerning the Wabash Indians. At least one senator criticized Washington’s interpretation of his authority as extending to attacks in reprisal for Indian marauders.

Washington could have assumed that repudiations were included in the authority to defend frontier. But he didn’t believe he had the authorization to carry out purely offensive actions. Washington felt pressured to move on. Washington replied that he was preparing offensive actions against Creeks when Congress said: “The Constitution gives Congress the power to declare war; thus, no important offensive expedition can be started until they have considered the matter and approved such a move.” He didn’t intend to issue a formal declaration, although Congress did support the offensive actions Washington recommended. Washington was very clear on who could start an offensive war. It wasn’t him.

The Founding-era history doesn’t matter to me because I am not an originalist. No matter what were the Framers’ intentions, history later has much to tell us about the President’s decision to go to war. The lessons from that history have been controversial. The decision to use force has seen a variety of interactions between Congress and the President. It is impossible to include all the history here. It is not difficult to find disagreements about war power. At least for me, it seems that the past history shows Presidents using small amounts of military force often for very short periods to defend American citizens and their property. Except in the event of an attack, presidents are not allowed to go to war with their country without authorization from Congress.

Korea War is the exception that has stood out in recent times. Evidently, Congress would have supported Truman’s decision to deploy troops. Truman and his counsel feared that an official declaration of war could escalate the conflict. Truman’s legal theory was built on the U.N. Charter. Truman claimed that Korea entering was an act of war as it did not fall under the Charter. He also suggested that Congress impliedly consented to it by becoming a member of the U.N.

Vietnam War was the most controversial issue regarding war power. When I was a student, the only reason that Congress did not declare war on Vietnam was because it was an unconstitutional war. I think that, in my opinion, the Bay of Tonkin resolution and the other congressional support were sufficient to justify our military presence.

It is unlikely that there will be consensus regarding presidential deployment of military personnel. They are far too complicated. My “Contested Ground”, title is especially fitting in this area. Without judicial interference to establish boundaries, this issue will be settled through the political branches. And ultimately the public. The War Powers Act seems, to me, consistent with both the old understanding and evolving practice. While constitutional law may help to shape decisions, it cannot control the final outcome.

The final installment in the series will discuss impeachment. This acts as the final check against the actions of the President.