As a new President is inaugurated and a new Congress is seated, it is time America returns to the division of war-making power the framers envisioned.
Zac Spohn
Our constitutional framers divided federal power throughout three separate branches of government.[1] There are many reasons the framers separated powers throughout the three branches. But the most important reason is clear: to avoid too much power becoming concentrated in one branch of government. The framers of our Constitution feared creating a form of government that could allow a tyrant like King George III to consolidate all governmental power. Thus, they created branches with not only their own major sets of power, but also gave the branches the ability to check each other’s powers. The framers gave the United States’s war-making powers to the two political branches: the Legislative and the Executive.[2]
The President’s war powers include their inherent power to protect the United States,[3] the power to negotiate treaties,[4] and their status as Commander-In-Chief.[5] The President also enjoys war powers stemming from various Congressional authorizations for the U.S. military force. Those authorizations include the 2001 Authorization for Use of Military Force (AUMF)[6] and the 2002 Iraq AUMF.[7] Congress’s war powers include the responsibility to declare war,[8] the duty to fund the armed forces,[9] and the power to make rules for the regulation of the armed forces.[10]
So how does this all really work? The framers desired Congress’s power to declare war to be the federal government’s primary “war-making” power.[11] And, they desired for the President to have very little input on whether the country would go to war.[12] Therefore, subject to few exceptions, the President was supposed to have limited war powers up and until Congress formally declared war. This was the framer’s intended equilibrium when it came to war-making powers.
We have strayed dramatically from this original framework. Today, much of the United States’s war-making power has been consolidated within the confines of the Executive Branch, a trend that began following the second World War.[13] After the Korean and Vietnam conflicts, Congress passed the War Powers Resolution (“WPR”). The WPR requires the President to notify Congress within 48 hours of engaging military forces in a foreign conflict.[14] And it requires the President to remove the military from a conflict within 60 days after he initially deploys the armed forces if not given an express authorization from Congress.[15] The WPR is likely unconstitutional for a full host of reasons,[16] but it was the first time Congress acknowledged they had ceded to much war-making power to the President.
As you can see, where a President claims to get their authority for a use of military force is ripe for manipulation. Perhaps nothing is more illustrative of this point than the 2001 AUMF. A 2018 Congressional Research Service Report found the 2001 AUMF had been cited 41 times as a justification for military action by Presidents Bush, Obama, and Trump.[17] Each of those Administrations used the 2001 AUMF to justify counterterrorism operations against groups the 2001 AUMF was not meant to cover.[18]
Complicating matters has been the recent reluctance of federal courts, and the Supreme Court, in particular, to exercise their power to resolve war powers disputes. Often citing justiciability or standing doctrines, courts have declined to intervene in war powers cases. It is a recent development of war powers jurisprudence that federal courts feel they do not have the workable standards to answer these sorts of questions. They had workable standards in 1800 when the Supreme Court determined the United States was at war with France, even though Congress had not yet formally declared war.[19] They had workable standards in 1862 when the Supreme Court determined a “state of war existed” when the southern states in rebellion blockaded naval ports.[20] In 1990, a federal district court felt “manageable” enough standards existed to reach the conclusion the U.S. would in fact be at war when hostilities commenced after President Bush deployed 230,000 troops to the Persian Gulf.[21]
To return our nation’s division of war powers to the framer’s intended equilibrium, Congress must reassert their power to dictate the terms upon which the President conducts war. A strong first step would be to repeal the 2001 AUMF. However, we are unlikely to return the framer’s intended equilibrium unless federal courts reassert their ability to exercise the judicial power to settle these disputes.
[1] Those three branches are obviously the Congress, the Executive, and the Judiciary. See, generally, U.S. Const. art. I, II, and III.
[2] See U.S. Const. art. I, § 8, cls. 11-13; see also U.S. Const. art. II, § 2.
[3] The Supreme Court affirmed this power in the Prize Cases, stating: “If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.” 67 U.S. 635, 668-70 (1863).
[4] U.S. Const. art. II, § 2.
[5] Id.
[6] 115 Stat. 224.
[7] 116 Stat. 1498.
[8] U.S. Const. art. I, § 8.
[9] Id.
[10] Id.; see also, Uniform Code of Military Justice. 10 U.S.C. 47.
[11] See The Federalist No. 41 (James Madison) (“Is the power of declaring war necessary? No man will answer this question in the negative.”).
[12] See The Federalist No. 69 (Alexander Hamilton) (“The President is to be the Commander in Chief of the [armed forces] of the United States. In this respect his authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the armed forces, as the first general and admiral of the nation: while that of the British King extends to the declaring of war, and to the raising and regulation of the armed forces; all which by the Constitution… would appertain to Congress.”).
[13] The genesis of this consolidation was Congress’s acquiescence when President Truman ordered American troops into battle on the Korean Peninsula in 1950. H.L. Pohlman, Constitutional Debate in Action: Governmental Powers 163-64 (Rowman & Littlefield 2d ed. 2005) (1995) (noting the Korean conflict lasted three years and cost the lives of approximately 36,000 American troops). Under the guise of this action merely being “a police action”—President Turman never sought a declaration of war from Congress or other authorization for the use of military force. See Louis Fisher, The Korean War: On What Legal Basis did Truman Act?, 89 AM. J. Int’l L. 21, 35 (1995).
[14] 50 U.S.C. § 1543 (the President is required to submit written notification to Congress detailing the need for military action and the status of that action).
[15] 50 U.S.C. § 1544. Notice, this section of the statute gives the President power to conduct a full-scale military operation for sixty days without explicit Congressional authorization. Although, Congress may vote to withdraw military forces at any time.
[16] The law may infringe on the President’s unencumbered power to defend the United States as Commander-in-Chief as recognized by the Prize Cases. The WPR also effectively allows the President to declare war on his own so long as he withdraws his forces within 60 days, which is direct conflict with Article I. It also provides for a legislative veto (§ 1544(c) permits Congress to order the President to withdraw forces) of a delegated power which is in conflict with Supreme Court precedent. See INS v. Chadha, 462 U.S. 919, 923-929 (1983).
[17] See Matthew Weed, Cong. Research Serv., Presidential References to the 2001 AUMF in Publicly Available Executive Actions and Reports to Congress (Feb. 16, 2018), https://lee.house.gov/imo/media/doc/Presidential%20Reference%20to%202001%20AUMF%20in%20Notifications %20and%20Executive%20Actions%20Memorandum%20Update%20(2-16-2018)%20Final.pdf.
[18] See Stephen Vladeck et al., After the AUMF, 5 Harvard National Security Journal 115, 116 (2014). See also Andrew Desiderio et al., ‘A very dangerous precedent’: Democrats take aim at Biden’s Somalia airstrikes, Politico (July 27, 2021) (examining the Biden administration’s airstrikes in Somalia using the 2001 AUMF as justification). See also Shareen Khalel et al., Was it legal?: What US and international law say about Trump’s strike on Soliemani, Middle East Eye (Jan. 3, 2020) (examining the legality of the Trump Administration’s assassination of the Iranian Revolutionary Guard General Qasem Solemani using the 2001 AUMF as justification).
[19] Bas v. Tingy, 4 U.S. 37, 41 (1800).
[20] The Prize Cases, 67 U.S. 635, 670 (1862).
[21] See Dellums v. Bush, 752 F.Supp.2d 1141, 1146 (D.D.C. 1990) (taking judicial notice that the President’s military actions could be of “such magnitude and significance as to present to serious claim that a war would not ensue if the [armed forces] became engaged in combat”).