The President And The Power To Declare War

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50th Anniversary of the March on Washington

“The Founding Fathers were, as in most things, profoundly right. That’s why I want to be very clear: If the President takes us to [war] without Congressional approval, I will call for his impeachment… The Constitution is clear. And so am I.” — Joe Biden, 2007

“The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the Nation.” — Senator Barack Obama, 2007

It’s pretty rare, but I find myself agreeing with not one, but two modern politicians on war powers. While Obama and Biden have quickly flip-flopped now that violating these principles has become their own strategy, they were correct when expressing them in response to President George W. Bush’s unConstitutional foreign policy.

Indeed, the Constitution is quite clear on war power. Congress has the power to determine if the country will wage offensive war and against whom. Once that decision is made by Congress, the President is in charge of waging that war.

The power in question is delegated in Article I, Section 8, Clause 11 of the Constitution:

[Congress shall have Power…] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

The Founders

As I wrote in an early-2007 article, Article II, Section 2 of the Constitution, on the other hand, refers to the President as the “commander-in-chief of the army and navy of the United States.” What the Founders meant by this clause was that once war was declared, it would then be the responsibility of the President, as the commander in chief, to direct the war.

Alexander Hamilton supported this when he said that the President, while lacking the power to declare war, would have “the direction of war when authorized.” Thus, under the Constitution, the President, acting without a Congressional declaration of war, is authorized only to repel invasion and sudden attacks.

Pre-emptive strikes and undeclared offensive military expeditions are not powers delegated to the executive branch in the Constitution, and are, therefore, unlawful. Thomas Jefferson stated this quite eloquently when, in 1801, he said that, as President, he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.”

As an aside, it’s also important to note that no Federal branch has the Constitutional authority to transfer powers to another branch that were delegated to it. There’s nothing in the text of the Constitution or the views of the Founders that would support this absurd notion. The Founders created a system of government where certain levels of government were responsible for certain powers, and not the others. A primary reason for this was a distrust of executive power.

War was something that was a big part of the Founders’ distrust of power. James Madison warned us that the power of declaring war must be kept away from the executive branch when he wrote to  Jefferson:

The constitution supposes, what the history of all governments demonstrates, that the executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the legislature.

There simply is no debate. Congress, not the President, decides if the country will go to war.

Twisted Definitions

As they did with the U.S. war against Libya, those violating these strict Constitutional limitations will likely refer to an attack on Syria as something other than “war.” But changing the words they use to describe their actions doesn’t change the Constitutional ramifications.

Under the Constitution, a war is a war whether you call it a war or something else.

Constitutional scholar Rob Natelson wrote about the legal meaning of the word “war” in March 2011:

Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition. A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.” (Barlow, 1772-73). I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.”

The Founders’ favorite authority on international law, Vattel, divided wars into three principal categories: defensive wars, offensive just wars, and offensive unjust wars. A nation fought a defensive war when it responded to an invasion. It fought a just offensive war when it responded to an infringement of its rights short of invasion. It fought an unjust offensive war if it attacked another country even though that other country had not infringed its rights. Examples of unjust offensive wars were those fought for conquest or to limit an innocent neighbor’s power.

A defensive war did not require a declaration.  A just offensive war did require one, although it might be called something other than “declaration of war.”  The declaration triggered certain consequences under international law, but Vattel says its principal purpose was to give the other country a last chance to correct the injury it was inflicting.  Because unjust wars were those launched by a country that had not suffered legal injury, it follows that “declarations of war” issued by an aggressor were at least partially defective.

Natelson also suggested that, even if declared, the government has “no constitutional power to wage an unjust war.”

The last time Congress Constitutionally declared war was on Dec. 11, 1941 — against Germany in response to its formal declaration of war against the United States. This resolution was quickly accomplished with a statement that was less than one page in length, yet it still clearly delineated who the enemy was and what was to be done. Three days earlier, and one day after being attacked at Pearl Harbor, Congress declared war on Japan with a similar clarity. Both actions resulted in a clear-cut military victory.

The short version? Unless fending off a physical invasion or attack, the President is required to get a Congressional declaration of war before engaging in military hostilities in another country.

Since it’s unlikely that the executive branch will limit its own power and there’s very little evidence that Congress will use the power of the purse to do so either, it’s going to be up to the people of the States to make that happen — whether the Feds want us to or not.

Michael Boldin

is the founder and executive director of the Tenth Amendment Center. Michael has a full schedule working as senior editor of the Center's website, writes a regular column, fields media interviews, and travels the country (when invited, of course) to speak to crowds about sticking to the Constitution — every issue, every time, no exceptions, no excuses.[send him email]

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  • Motov

    Didn’t we learn our lesson when the shrub did this several years ago?
    Why not just send Obozo instead? I’m sure with his mouth he can fix things.
    And if he fails, What difference will that make? They can keep him too!

    • http://cowboybyte.com/ Alondra

      “I’m sure with his mouth he” can replace the chemical weapons.

  • shadowlee

    Obummer does what he wants. He does not do what we want. He over looks laws and/or enforces only ones he wants to. Total uncontrolled spending and give a ways. He is a raciest that has further divided our country to the point we are headed toward a war with ourselves. Democracy is not freedom. It is not government by the people and for the people. It is the perfect disguise for benevolent totalitarianism. Americans in vast numbers just go along with the system, so its social and moral depravity prosper under the cloak of democracy. The people love democracy because they love evil more than righteousness.

  • Mark Are Reynolds Ⓥ

    Maybe Odumba needs to meet the same fate as Nicolae Ceausescu on a national TV reality show.

  • native blood

    The point we are all missing is that President Obama is powerless to change what his handlers tell him to do. It would be tempting to give him credit for engaging in any kind of war. Much like Bush and other commander in chiefs before him, it was not his decision to wage war. That lies squarely with the people who control the MIC and the banking system. ‘Nuff said.

    • Warrior

      Correct Chief, he is after all just a “community organizer”. The voice inside his head is none other than cass sunstein and the message is CONTROL!

  • Liz

    I thought if a foreign power or enemy literally attacks the United States, the President doesn’t need to consult Congress. But if the USA wants to intervene in the foreign Country’s conflict when that Country has not physically attacked the USA then the President needs to go to Congress first. Am I incorrect? I guess I need to check the War Powers Act.

    • bmwsid

      If you read the above article, you wouldn’t be asking!

    • vicki

      Since when did the President let a little thing like the rule of law interfere?
      (Bush and obama have made statements and/or taken action to show their intent)

  • hipshotpercussion

    I just don’t think that there are enough people in the country with the necessary resolve, and intestinal fortitude to stand up to our runaway government. That says a lot about us, I’m sad to say. If we want to live free and prosper, we need to change our outlooks, and grow up and become responsible and civic minded citizen soldiers.

    • Vis Fac

      I call this APATHY

      The veritable problem in the world is that fools and fanatics are always so certain of themselves, and wiser people full of doubts” Bertrand Russell

      America will never be destroyed from the outside. If we falter and lose our liberties, it will be because we destroyed ourselves.– Abraham Lincoln

      The Only Thing Necessary for the Triumph of Evil is that Good Men Do
      Nothing–Edmund Burke

      A republic is defined as a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president…

      Democracy is two wolves and a lamb voting on what to eat for lunch with the well armed lamb contesting the vote. Liberty comes from the recognition of certain rights which may not be taken, not even by a 99% vote.”

      A democratic government that respects no limits on its power is a ticking time bomb, waiting to destroy the rights it was created to protect.

      Libertas inaestimabilis res est

      Semper-Fi

    • Bill

      Hip,
      We need to cut things off at their purse strings. Eventually, they will run out of “other peoples money to steal”

    • Speak2Truth

      If Americans were to actually defend their Constitution, like their Oath says, they would be doing to Obama what the Egyptians did to Morsi.

      One more point: GW Bush DID have Congressional approval in Iraq.

      Bill Clinton got Congressional approval for the Iraq Liberation Act in 1998. It committed the USA to elimination of Saddam’s regime by force and the installation of a new democratically elected government in Iraq. IT WAS CONGRESSIONALLY APPROVED.

      Bill Clinton’s strategy, bombing the cr*p out of Iraq in Dec. 1998 and helping the Islamist factions try to take Iraq, failed. Let’s be glad of that, because he did help the Islamists take Kosovo and now it’s the new Al Qaeda training center for attacks on Syria.

      GW Bush simply continued the mandates of the Iraq Liberation Act, choosing a different strategy, getting Congressional approval, and ultimately succeeding.

      GW Bush DID HAVE Congressional approval to finish off Saddam’s regime.

      Obama did NOT get Congressional approval to help Al Qaeda conquer Libya and I sure hope he doesn’t get it to help Al Qaeda take Syria!

  • paul

    Do you remember the days when our government (reasonably) respected our Constitution and feared the people?! Yep, the good old days are gone forever. They now only serve themselves/Parties and are above our Constitution. Their only exception is during elections. At that time they tell you what you want to hear and buy the votes from the poor with freebee crap. Why even bother with the oath of office?

    • mark

      And when exactly were those days? They never existed. Presidents starting with George Washington have all exceeded their Constitutional authority over and over again. For example, numerous incredibly violent and prolonged military operations were ordered by president after president against Native Americans for over a century and none of them ever asked for Congressional approval. Presidents looked the other way and gave a wink and a nod to various American invasions of Latin America led by filibusters in the mid 19th century. Presidents directly ordered invasion after invasion, CIA overthrow after CIA overthrow of sovereign governments without ever asking for Congress’ approval: Some examples: Panama 1903,1918, 1925, 1989; Haiti 1915-1934, 1994; Honduras 1925-26; Dominican Republic 1916-1924, 1965, Mexico 1914, 1916-17, Nicaragua 1909-1933, Cuba 1906,1919, 1912, 1917-1922, 1961; Korea 1950-1953; Iran 1953, Guatemala 1954,1967. Vietnam 1961-1975; Chile 1973. In none of these major military and/or CIA operations did the president of the time ask for Congressional approval. Then of course there were Bush’s undeclared wars in Iraq and Afghanistan. Don’t believe all this nonsense about the Golden Age of America. It never existed. It’s a lie.

      • TheOriginalDaveH
        • mark

          No, I wouldn’t say that, Dave. Some certainly are, but most are quite normal and human, given to the same fears, emotions, desire for fame, fortune, and power that huge numbers of people have . And they tend to convince themselves that all their thoughts and deeds are naturally good for the country and patriotic. Our political leaders, in other words, are just like most Americans: flawed and struggling human beings with all the faults that the majority of us have.

          • TheOriginalDaveH

            Did you read the article, mark?

          • mark

            Yes, I did and I disagree with its central thesis that civilizations were created by psychopaths and that all three branches of our current government are controlled by psychopaths. Sorry, Dave, can’t back you on this one. But I do think there are several psychopaths on this website.

          • TheOriginalDaveH

            Who else but psychopaths would pass laws “for the good of the people” but exempt themselves from those laws?
            Who else but psychopaths would think due process is unnecessary when the victims are not US citizens?
            Who else but psychopaths would think that our money is their money to do with as they please?
            Who else but psychopaths would support such people?

          • mark

            Your and my definition of a psychopath are obviously different. When I hear the word, I think Charles Manson.

          • TheOriginalDaveH

            I thought you said you read the article, mark? Obviously, you haven’t.
            Psychopathy is the state of not having a conscience or lacking empathy towards others. The psychopathic killers are a subset of psychopaths:
            http://www.wisegeek.org/what-is-the-difference-between-a-psychopath-and-a-sociopath.htm

          • Motov

            And Obozo is very much like Charles Manson, gets his minions to do the dirty work for him,…

      • TheOriginalDaveH
      • TheOriginalDaveH

        mark says — “And when exactly were those days?”.
        For the first 120 years of our new country, Government spent less than 5% of our GDP. Compared to the 40% of GDP they consume now, I would consider those the “good old days”.

        • mark

          Yes but that is because then the United States gov’t was only striving to imperially control everyone on the North American continent and the Western Hemisphere plus Hawaii and the Philippines. After World War II, the project became and still is to imperially control the entire world.

          • TheOriginalDaveH

            Defense is only 25% of the Federal Budget and a little over 13% of all Government Spending in the US.
            So taking that out, our Government would still be spending about 35% of our GDP as compared to Government Spending of less than 5% of our GDP for the first 120 years of our country.

          • mark

            The Defense budget was higher than 25% of the federal budget during World War II, Korea, Vietnam and several other years of the Cold War especially the 1950s and early 1960s. You also have to include foreign aid and the vast intelligence budget into the overall “security” spending of the U.S. in this period. But you are right, Dave, substantial growth in social programs, entitlements, and government subsidies to various corporate interests and individuals have grown robustly starting with the New Deal and increasing after World War II, with the Great Society programs of the 1960s, and the COLAs of the 1970s. I support most, but not all, of these programs. You no doubt oppose all of them.

          • TheOriginalDaveH

            You’re going off on a tangent, mark, in an effort to win. I’m talking about the size of our current Government. Keep your eye on the ball, mark.
            And yes, mark, I oppose all theft, whether performed by common crooks or by Government crooks. I also oppose all killing that isn’t done in self-defense, whether performed by common killers or by Government killers.

      • Robert Messmer

        The CIA didn’t exist before 1947. Bush’s wars, approved by Congress rather or not declared.

    • Bill

      Good analogy, Paul

  • Michael Boldin

    For anyone wondering what I meant by “it’s going to be up to the People of the States” at the end of the article – here’s the link that should have been included –

    http://www.tenthamendmentcenter.com/legislation/defend-the-guard/

  • mark

    Boldin is not telling the whole truth here. There is a difference between war and the state’s exercise of force at a number of lesser levels and venues. The Founding Fathers recognized (and the Supreme Court has upheld this over and over again) that the President possesses within his powers as Commander-in-chief the right to use military force of a limited level and time period to deal with immediate dangers when he may not have time to consult Congress which was out of session some 8 months of the year during the Early Republic. In fact in an era of incredibly slow communications, individual U.S. Navy captains had the right to use force against other nations’ ships or another country’s port cities if they felt themselves or their crews in danger or viewed such actions as appropriate if the honor of the U.S. flag had been besmirched.
    In those days it would take up to 2 months to get a message at sea to Washington and then another two months to get a reply. As a result U.S. naval ships in the Pacific bombarded Chilean, Ecuadoran, Japanese, and Chinese ports in response to the local police’s abuse of U.S sailors or their imprisonment for drunk and disorderly by the local police. Various foreign ships were sunk, boarded, and/or seized as well. Today’s libertarians would no doubt call these actions initiating a war when in fact they were nothing of the sort and fairly routine throughout the 19th and early 20th century.

    • Vis Fac

      The authorization of preemptive strikes is not allowed as you related only DEFENSIVE action can be taken. Once the danger has subsided hostile actions stop PERIOD. Once war has been declared all bets are off open season. Congress was responsible for all casualties ensuing from conflicts after WW II They have no business running the military or authorizing rules of engagement. The CIC has the authority to conduct how war is waged.

      You can make as many excuses as you wish blame communications Blame the weather for all I care Rules are rules and the law is the law there are or at least should be consequences for breaking and usurpation of the law not just regarding conservatives.

      The veritable problem in the world is that fools and fanatics are always so certain of themselves, and wiser people full of doubts” Bertrand Russell

      America will never be destroyed from the outside. If we falter and lose our liberties, it will be because we destroyed ourselves.– Abraham Lincoln

      The Only Thing Necessary for the Triumph of Evil is that Good Men Do
      Nothing–Edmund Burke

      A republic is defined as a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president…

      Democracy is two wolves and a lamb voting on what to eat for lunch with the well armed lamb contesting the vote. Liberty comes from the recognition of certain rights which may not be taken, not even by a 99% vote.”

      A democratic government that respects no limits on its power is a ticking time bomb, waiting to destroy the rights it was created to protect.

      Libertas inaestimabilis res est

      Semper-Fi

      • mark

        Yes, but is it a defensive action to bombard a foreign city with naval guns because some of your sailors were arrested no doubt with reason for drunk and disorderly conduct and brawling with local police? In the 19th century most Americans considered this fine but those on the receiving end of the bombing usually poorer, weaker countries with populations of color regarded these actions as acts of war, gunboat diplomacy, and U.S. imperialism.

        • TheOriginalDaveH

          Did I not read your previous comment correctly, mark?
          You seem to be doing some flip-flopping here.

          • mark

            No, I agree with those on the receiving end of U.S. naval artillery – not the imperialists firing those guns. I also think a Syrian intervention by the U.S. would be a mistake. But I have to add the caveat that it would be nowhere near as huge and horrendous a mistake as the 2003 Iraq invasion was. These are 2 completely different kind of interventions, though both are certainly imperialist.

          • TheOriginalDaveH

            The Iraq invasion was also supposed to be a short involvement.

          • mark

            Right, I agree but there is a huge difference when you go in with 120,000 combat troops on the ground on day one. There is a better chance of the federal government paying off the national debt tomorrow morning than there is of Obama ever going “all in” in Syria like Bush did in Iraq.

          • TheOriginalDaveH

            Keep on Hoping and Dreaming, mark. Obama will do whatever he can get away with.

        • Vis Fac

          Defensive bombardment in FOREIGN soil? It was and still is gunboat diplomacy and contrary toy our constitution. These acts are criminal. and those responsible be held accountable. Today our military hands offenders over to local authorities to face prosecution after any sentence is served they are court marshaled. Then serve that sentence

          The veritable problem in the world is that fools and fanatics are always so certain of themselves, and wiser people full of doubts” Bertrand Russell

          America will never be destroyed from the outside. If we falter and lose our liberties, it will be because we destroyed ourselves.– Abraham Lincoln

          The Only Thing Necessary for the Triumph of Evil is that Good Men Do Nothing–Edmund Burke

          A republic is defined as a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president…

          Democracy is two wolves and a lamb voting on what to eat for lunch with the well armed lamb contesting the vote. Liberty comes from the recognition of certain rights which may not be taken, not even by a 99% vote.”

          A democratic government that respects no limits on its power is a ticking time bomb, waiting to destroy the rights it was created to protect.

          Libertas inaestimabilis res est

          Semper-Fi

    • Michael Boldin

      That absolutely IS covered in the article. Might want to give it another look,

      Truth has been told. I’m not sure it’s understood though. I’ll try to better cover this in the future.

      • vicki

        You explained it quite clearly in your article.

        • Michael Boldin

          thank you. I’d like to dig deeper on this in my next..

    • mark

      Yes, Michael, but those people typically of poorer and weak countries with populations of color never regarded the U.S. actions I noted above as defensive in anyway. They saw them as acts of gunboat diplomacy, the Big Stick, and U.S. imperialism. In most cases, I think they were right. So much for our earlier leaders’ strict adherence to the Constitution. It’s largely a myth.

      • Michael Boldin

        The loosest application of federal power by the founders is stricter than any politician has been even close to in modern times.

        Also note, I referenced the most prominent example of what you’re potentially referring to, Tripoli.

        Thanks for the reply. It was much nicer than implying that I was hiding truth.

      • Robert Messmer

        It sounds very much like you are saying that the ships captains should have just sailed away and waited for four months to get clarification from DC. Contrary to Mr. Holder, there is no “moral” duty to run away. Just because locals perceived that it was gunboat diplomacy does not make it so. Its that whole thing about “accepting their culture”. They should have accepted our culture that we have the same right to live as they do. Instead, since we were not their color, their religion, their whatever they thought they could do what they wanted. So not really a matter of how closely the leaders adhered to the Constitution.

    • vicki

      Mark should actually read the article. Defensive use of military force by the President is clearly spelled out. Clear and present danger.

      Interestingly the one defensive use for which obama could have used military legally was Bengazi. Interesting that obama chose the opposite of the actual power granted the President.

    • ibn insha

      Are we still living in ‘slow communication’ times?

    • Robert Messmer

      Individual US Navy captains may have used force where and when they felt it necessary, but that is not the same as “had the right” under the Constitution.

  • Bill

    It just goes to show you that Obama & Biden are liars and just said those things to get elected.

  • bob arnold

    one thing that people keep forgetting is that Bush went to congress before Iraq and they gave him permission to attack Iraq if he saw fit incl Hillary who saw all the evidence from all the intelligence from all the countrys incl Russia bit it is amazing that they want to pretend that never happened. now we will see what Obama does

  • bob arnold

    if this great nation backs away from helping another nation in trouble this nation will cease to be great.
    rember to much that has been given, much is expected

    • Motov

      We are not that great in helping other nations, quite on the contrary we act like big bad bullies with a very modern and powerful army and we just go in under false pretexts (Remember there weren’t any Iraqis that supposedly hijacked those 9-11 planes on that day, most were Saudi’s but we never invaded their country.)

      The real reason was because Iraq went to using Euro’s as currency for oil exchange, and not the dollar.

      http://www.thirdworldtraveler.com/Iraq/Iraq_dollar_vs_euro.html

  • JeffH

    U.K.’s Cameron loses Syria war vote

    BREAKING:

    LONDON — British Prime Minister David Cameron has lost a vote endorsing military action against Syria by 13 votes, a stunning defeat for a government which had seemed days away from joining the U.S. in possible attacks to punish Bashar Assad’s regime over an alleged chemical weapons attack.
    http://www.washingtontimes.com/news/2013/aug/29/uks-cameron-loses-preliminary-vote-syria/#ixzz2dOoLviMQ
    Follow us: @washtimes on Twitter

  • JeffH
  • http://cowboybyte.com/ Alondra

    WHY the Administration is rushing to take Military actions against Syria.

    WHY they rush? WHY they do not wait for the UN inspectors’ investigation report? They did not verify yet that Assad used Chemical Weapons. Aren’t the UN inspectors remaining in Syria?

    WHY they rush to attack WITHOUT any proof – undeniable FACTS?
    http://rt.com/news/syria-chemical-weapons-un-775/

    Didn’t the speaker of the House Pelosi (unbalanced) travel to Syria in April of 2007 with the MESSAGE of peace and love to Assad http://usatoday30.usatoday.com/news/world/2007-04-04-pelosi-syria_N.htm

    Wasn’t the Syrian President Assad regarded as a ‘REFORMER’ by the U.S.
    Secretary of State Hillary Clinton in March of 2011?

    She made that statement at the time the unrest in Syria already originated in the
    city of Deraa near the border with Jordan and has spread to other centers,
    including Damascus and Latakia, a coastal city.

    But on July 6, 2012 the political whore hillary said that “Russia and China Will
    Pay” for Supporting Assad. http://www.youtube.com/watch?v=24ltPixsIGQ

    Did not she and Illegal pRESIDENT of the WH arming the rebels?

    Once Putin placed hillary where she belongs http://www.youtube.com/watch?v=Q55SxoaiJjw

  • WTS/JAY

    Senator Obama on Military attacks…(from the Boston Globe)

    “The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” December 20, 2007