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58 3 War Powers The Constitution divides war powers between Congress and the president. The president is chief executive, chief diplomat, and commander in chief of the armed forces. Congress alone can declare war and authorize the use of force, Congress alone can appropriate funds, and Congress alone can raise and supply armies for war. The Constitution’s framers thought it should be difficult to take the country into war, and, therefore, the power to commence war was put in the hands of those who would bear the costs. Congress also has the power of oversight and investigation to ensure that the executive branch faithfully implements the will of the people as expressed in legislation. When officials abuse their power, the Constitution grants Congress the authority to impeach. From George Washington forward, presidents have been consolidating their power over foreign affairs and the use of military force.1 The general pattern has been for Congress to cede powers to the president in times of war and to reclaim some of them after war. Following foreign policy blunders, Congress has an even stronger hand in reducing presidential war powers. But in the long-term give-and-take, the presidency has gained more than it has lost. Even with the more egregious excesses, presidents suffered setbacks, but the presidency overcame and continued to accumulate power.2 That there has been a shift in war powers from Congress to the president is uncontested. There is some agreement that the shift undermines republican democracy. There is serious disagreement on how much power a president needs in the twenty-first century. There are those who assert the continued applicability of the Constitution and those who assert power far beyond the Constitution. War Powers 59 Several explanations exist for why the shift has taken place. The framers recognized that some qualities gave the executive advantage over representative bodies. Some arguments highlight the need for speed. Others argue that the principal explanation for the shift is Congress’s desire to avoid risk and accountability. Many attribute the shift from congressional to presidential government to the weakened parties that cannot discipline Congress against a unitary president. To explain more recent behavior, still others point to the lack of widely agreed-to post–Cold War policy objectives. The nature of the shift is broad and deep. Authorization has shifted from Congress to the president, as presidents since Truman have commenced military operations virtually at will or have claimed authority flowing from the un or nato. The existence of a standing military since Truman removed Congress’s relevance in raising an army for war. Appropriation has shifted from Congress to the president, as the executive captured the budget process in 1921, reprograms appropriated funds, and even finances operations with funds from foreign sources. And the allvolunteer military reduced the president’s need to consider public support. Once the president has deployed forces, Congress is left to “support the troops but not the policy.” This chapter begins with a review of war powers as specified in the Constitution, in case law, and as elaborated in statute. It then summarizes specific uses of force with or without authority. Next, the post–Vietnam War Powers Resolution is summarized and is accompanied by a summary of presidential compliance. The chapter concludes with items for consideration. Shifting War-Making Authorities The people, through their Constitution, grant specific war-making powers to Congress and the president. The preponderance of war-making powers is vested in the people’s branch. Anticipating the demands of crises, Congress has seen fit to craft additional authorities that can be granted temporarily to the president. After covering the constitutional and statutory authorities, this section briefly retraces the shift from congressional to presidential war making. 60 Foundational Concepts Constitutional Authorities Congress has sole authority to declare war. In war, the president is commander in chief of the armed forces. Presidents are expected to use force to repel invasions without first asking for authority. Congress and the people expect nothing less. These things are inarguably true. But there is much to argue about concerning the use of armed force. The authority to take the nation to war was a significant subject of debate in 1787 at the Philadelphia convention. Pierce Butler of South Carolina recommended that the president should have that authority because he “will have all the requisite qualities and will not make war but when the nation will support it.” Elbridge Gerry of Massachusetts countered that he “never expected to hear...


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