How does the U.S. Constitution apportion the powers related to national security among branches of government? What check?

INTERPRETATION & DEBATE

Declare War Clause

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The Constitution’s Article I, Section 8 specifically

lists as a power of Congress the power “to declare

War,” which unquestionably gives the legislature the

power to initiate hostilities. The extent to which this

clause limits the President’s ability to use military

MATTERS OF DEBATE

Common Interpretation

The Textual Limit on

the President’s War

Powers

Congress’s

Statutory Abdication

of its Declare War

Power

Common Interpretation

by Michael D. Ramsey Professor of Law at the University of

San Diego School of Law

by Stephen I. Vladeck Dalton Cross Professor in Law at the

University of Texas at Austin School

of Law

ARTICLE I

Section 8: Powers of Congress

The Congress shall have

Power To lay and collect

Taxes, Duties, Imposts

and Excises, to pay the

Debts and provide for the

common Defence and

general Welfare of the

United States; but all

Duties, Imposts and

Excises shall be uniform

throughout the United

States;

To borrow Money on the

credit of the United

States;

To regulate Commerce

with foreign Nations, and

among the several

force without Congress’s affirmative approval

remains highly contested.

Most people agree, at minimum, that the Declare

War Clause grants Congress an exclusive power.

That is, Presidents cannot, on their own authority,

declare war. Although it is somewhat more

contested among scholars and commentators, most

people also agree that Presidents cannot initiate

wars on their own authority (a minority argues that

Presidents may initiate uses of force without

formally declaring war and that  Congress’s exclusive

power to “declare war” refers only to issuing a

formal proclamation).

In the early post-ratification period, the clause’s limit

on presidential warmaking was read broadly. Many

key founders, including Alexander Hamilton, George

Washington and James Madison, referred to the

clause’s importance as a limit on presidential power.

In the nation’s early conflicts, Congress’s approval

was thought necessary – not only for the War of

1812, for which Congress issued a formal

declaration, but also for lesser uses of force

including the Quasi-War with France in 1798,

conflicts with the Barbary States of Tripoli and

Algiers, and conflicts with Native American tribes on

States, and with the

Indian Tribes;

To establish a uniform

Rule of Naturalization,

and uniform Laws on the

subject of Bankruptcies

throughout the United

States;

To coin Money, regulate

the Value thereof, and of

foreign Coin, and fix the

Standard of Weights and

Measures;

To provide for the

Punishment of

counterfeiting the

Securities and current

Coin of the United States;

To establish Post Offices

and post Roads;

To promote the Progress

of Science and useful

Arts, by securing for

limited Times to Authors

the Western frontier (all of which were approved by

Congress, albeit without formal declarations).

In modern times, however, Presidents have used

military force without formal declarations or express

consent from Congress on multiple occasions. For

example, President Truman ordered U.S. forces into

combat in Korea; President Reagan ordered the use

of military force in, among other places, Libya,

Grenada and Lebanon; President George H.W. Bush

directed an invasion of Panama to topple the

government of Manual Noriega; and President

Obama used air strikes to support the ouster of

Muammar Qaddafi in Libya. Some commentators

argue that, whatever the original meaning of the

Declare War Clause, these episodes (among others)

establish a modern practice that allows the

President considerable independent power to use

military force.

In general, most scholars and commentators accept

that presidential uses of force comport with the

Declare War Clause if they come within one of three

(or possibly four) categories, though the scope of

these categories remains contested. First,

Presidents may use military force if specifically

authorized by Congress. Authorization may come

from a formal declaration of war, but it can also

and Inventors the

exclusive Right to their

respective Writings and

Discoveries;

To constitute Tribunals

inferior to the supreme

Court;

To define and punish

Piracies and Felonies

committed on the high

Seas, and Offences

against the Law of

Nations;

To declare War, grant

Letters of Marque and

Reprisal, and make Rules

concerning Captures on

Land and Water;

To raise and support

Armies, but no

Appropriation of Money

to that Use shall be for a

longer Term than two

Years;

come from a more informal statutory authorization.

For example, after the September 11, 2001 attacks,

Congress authorized the President to use force

against those who launched the attacks and those

who supported or assisted them. Sometimes,

authorizations are fairly specific (as when Congress

authorized President George W. Bush to use force

against Iraq); sometimes they are more open-ended,

as when Congress authorized the use of force to

protect U.S. interests and allies in Southeast Asia,

leading to the Vietnam War. Most people agree that

presidential actions pursuant to such authorizations

are constitutional, although there may be debate

about how broadly to read any particular

authorization. More controversially, Presidents have

claimed authorization from informal or indirect

congressional actions, such as approval of military

spending, assent by congressional leaders, or even

Congress’s failure to object to ongoing hostilities.

Second, Presidents are thought to have independent

authority to use military force in response to attacks

on the United States. At the 1787 Philadelphia

convention, Madison described the Declare War

Clause as leaving the President with authority to

repel sudden attacks. The scope of this power is

sharply contested, however. Some commentators

To provide and maintain

a Navy;

To make Rules for the

Government and

Regulation of the land

and naval Forces;

To provide for calling

forth the Militia to

execute the Laws of the

Union, suppress

Insurrections and repel

Invasions;

To provide for organizing,

arming, and disciplining,

the Militia, and for

governing such Part of

them as may be

employed in the Service

of the United States,

reserving to the States

respectively, the

Appointment of the

Officers, and the

Authority of training the

Militia according to the

think it includes defense against attacks on U.S.

citizens or forces abroad, in addition to attacks on

U.S. territory; some would extend it to attacks on

U.S. allies or U.S. interests, defined broadly. Some

commentators think it includes defense against

threats as well as actual attacks. Some think it allows

the President not only to take defensive measures

but also to use offensive force against attackers.

Third, Presidents may use other constitutional

powers – principally the commander-in-chief power

– to deploy U.S. forces in situations that do not

amount to war. For example, President Bush’s

deployment of troops to Saudi Arabia after Iraq’s

invasion of Kuwait in 1990 probably did not implicate

the declare war clause because at that point the

troops were not involved in combat. Similarly,

deployment of U.S. troops as peacekeepers (as

President Clinton did in Bosnia) likely does not

involve the United States in war and thus does not

require Congress’s approval under the Declare War

Clause. More controversially, it is claimed that

involvement in low-level hostilities may not rise to

the level of war in the constitutional sense. President

Obama argued on this ground that U.S. participation

in the bombing campaign in Libya in 2011 did not

require Congress’s authorization. However, this

discipline prescribed by

Congress;

To exercise exclusive

Legislation in all Cases

whatsoever, over such

District (not exceeding

ten Miles square) as may,

by Cession of particular

States, and the

Acceptance of Congress,

become the Seat of the

Government of the

United States, and to

exercise like Authority

over all Places purchased

by the Consent of the

Legislature of the State in

which the Same shall be,

for the Erection of Forts,

Magazines, Arsenals,

dock-Yards and other

needful Buildings;-And

To make all Laws which

shall be necessary and

proper for carrying into

Execution the foregoing

position is strongly disputed by other

commentators. A related argument, also

controversial, is that using force against non-state

actors such as terrorist organizations does not

amount to war, and thus does not implicate the

Declare War Clause.

A fourth potential category is using force under the

authority of the United Nations, which some

commentators have argued can substitute for

approval by Congress. Among other things,

President Truman argued that his use of force in

Korea was a “police action” to enforce the UN

Charter, not a war. However, Presidents have

generally not relied on this source of authority and it

is less well accepted, even in theory, than the prior

categories.

The law of the Declare War Clause is unsettled in

part because there have been very few judicial

decisions interpreting it. In the Prize Cases in 1863,

the Supreme Court upheld as a defensive measure

President Lincoln’s blockade of the southern states

following their attack on Fort Sumter, but was

ambiguous as to whether the authority for the

blockade came from Article II, from specific statutes

Congress had passed in 1795 and 1807, or some

combination of both. And in dicta, the Court noted

Powers, and all other

Powers vested by this

Constitution in the

Government of the

United States, or in any

Department or Officer

thereof.

Back to Original Text

Explore more about Article I

that the President could not begin hostilities without

Congress’s approval. Earlier cases, such as Bas v.

Tingy (1800), referred generally to Congress’s broad

powers over warmaking without giving specific

guidance on the President’s power. But in modern

times, courts have generally avoided deciding war-

initiation cases on the merits, based on rules that

limit what types of disputes courts can resolve, such

as standing or the political question doctrine. As a

result, the precise contours and implications of the

Declare War Clause remain unresolved today—

leaving resolution of disputes over particular uses of

force by the President to the political process.

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