Paper: Constitutional Law, War Powers

War Powers are complicated beyond belief for something that seems so simple in the Constitution.

I. Introduction

In his book War and Responsibility, John Hart Ely has famously suggested that constitutional original intent “can be obscure to the point of inscrutability”, but in the case of war powers “it isn’t” — original intent is clear and indisputable. He argues that the Founding Fathers clearly meant for all military action to be authorized by the legislature, except in limited circumstances when the executive could pursue a military response to “genuine and serious threats to our national security,” even “beyond actual attacks on United States territories” as long as the executive requests Congressional authorization as soon as doing so “would [not] serve to defeat our military effort” (ie, there is no time) and withdrew if it was not then promptly granted.

Yet Alexander Hamilton and James Madison, who in 1788 had been writing the Federalist Papers together as Publius, were by 1793 arguing bitterly over the President’s war powers in the Pacificus-Helvidius debate. Such a quick degeneration indicates that “original intent” could not have been very uniform.

In this paper, I will describe some of the original debates on war powers, the modern state of affairs, and offer a conclusion on original intent regarding war powers.

II. The Original War Powers Debate

There is a distinct lack of evidence available from the Constitutional Convention on the distribution of war powers. However, many of our Founding Fathers debated the matter at later points. We consider here the Constitution itself, the Constitutional Convention, selections from the Federalist Papers, the Pacificus-Helvidius debates, and Jefferson’s war against the Barbary States.

The Constitution

The Constitution distributes war powers among Congress and the President. Congress is authorized “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;” “To raise and support Armies [and] provide and maintain a Navy;” furthermore “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions” and “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;” finally “To make Rules for the Government and Regulation of the land and naval Forces.”

The President is vested with the executive power; he “shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

Certainly the Constitution devotes more text to the legislative powers of war. Also notable is that Congress grants letters of marque and reprisal, so the President cannot authorize privateers. But a sensible line can be drawn: Congress provides the military (in all forms) and makes laws for the military (as it does civilians), while the President leads that military. The question arises when that military can be used; certainly Congress is granted the power to declare war while the President has only implicit grants via his executive and commander-in-chief power, but there are gray areas to which the Constitution does not provide any real hints.

The Constitutional Convention

Madison’s convention notes on the matter are short, and include only a brief debate over Congress’ power to declare war. Originally, Congress had the power “to make war,” but the delegates objected to this as the Legislature was ill-suited to it, and they wanted the Executive to have the power to repel sudden attacks. Granting Congress the power to make peace was opposed, as it should be easier “to get out of war, than into it.”

The Federalist Papers

Alexander Hamilton, James Madison, and John Jay famously discuss the Constitution in the Federalist Papers, but even the papers discussing war powers give us little enlightenment on how these powers are to be distributed. Number 25 (by Hamilton) asserts that “nations pay little regard to rules and maxims calculated in their very nature to run counter to the necessities of society,” and argues the necessity of allowing a peacetime military force so that the country may respond to threats before being actually invaded. This point is reinforced by Madison in Number 41.

Federalist 69 (Hamilton) discusses the character of the executive at some length, yet his war powers are not revealed at all. We learn only that “The President is to be commander-in-chief of the army and navy of the United States” which “amount[s] to nothing more than the supreme command and direction of the military and naval forces;” this is different from the British king which “extends to the declaring of war and to the raising and regulating of fleets and armies.” This restatement of the Constitution illuminates nothing, except perhaps that Hamilton considered the Constitution to be complete in its allocation of war powers. He revisits the subject in Number 74, titled “The Command of the Military and Naval Forces, and the Pardoning Power of the Executive,” but the only new thing he says is “the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand.”

The Pacificus-Helvidius Debate

The first true debate on war powers came after Washington’s Proclamation of Neutrality in the war between France and Britain; yet it was singularly not about war powers, per se, but foreign affairs. Hamilton, as Pacificus, argued for the Proclamation and its lawfulness; Madison, as Helvidius, eventually argued against it at Thomas Jefferson’s request.

Hamilton’s argument is simple: the President has the executive power of the nation, and issuing a judgment such as the Proclamation of Neutrality is an executive function; moreover, it should be the President’s domain as he is the “organ of intercourse with foreign nations;” he is responsible for making treaties and ensuring the laws are faithfully executed, so he must surely be responsible for interpreting these laws and treaties by himself; if he can interpret he can tell the country what he has interpreted; finally, while Congress has the power to declare war the executive is duty-bound to maintain peace until Congress has instructed him otherwise.

Madison’s response summarizes Hamilton’s argument and then extrapolates from it. Importantly, he casts Hamilton as holding treaty-making and war powers to be inherently executive powers; Hamilton has claimed that since the President has the executive power his powers should be construed broadly “where not especially and strictly excepted out of the grant.” Madison argues that these are not executive powers, since treaties are laws and the executive is an enforcer of laws, not a giver of laws; moreover the power to declare war is the power to change which laws the country operates under, so these too must be legislative rather than executive in nature; moreover, the only reason for conflating these powers is that they are given to the British King (talk about an ad hominem attack)! Finally, after an extensive argument showing why it would be bad if the executive had the powers claimed here, Madison says that the legislature should be as free from restraints on entering war as not, and that a Proclamation of Neutrality hinders this ability because of the schizophrenic message it sends.

The Barbary Wars

Despite his opposition to the Proclamation of Neutrality’s theoretical roots, Thomas Jefferson assumed great Presidential power during his time in office. Most strikingly, he asserted powers to send military force abroad for defensive purposes — without the knowledge or consent of Congress. These actions are detailed in Max Boot’s book The Savage Wars of Peace.

In 1801, the US Government was spending a large portion of its funds (as much as one-sixth) in tribute to the Barbary States to prevent these African nations from pirating US trade ships. Many ships were lost whenever this tribute faltered or the Barbary kings wanted more money, and Jefferson resolved to end the piracy by force.  In May 1801 he sent the remaining Navy (left over from the Quasi-War with France) to the Mediterranean Sea to protect US shipping. These ships would not blockade any nation that had not declared war on the United States, and would not attack unless first attacked. But they could use force to protect American shipping and enforce “existing treaty obligations” and “chastise” any nations which had declared war (even if the US government back home had no knowledge of the declaration).

III. What Are War Powers?

As we have seen, there was little disagreement on war powers

at the time of the Convention and ratification. There are two possibilities: either everybody agreed on the distribution, or the war powers were considered so little that nobody realized the gray areas in which the power was not explicitly granted to either Congress or the President.

The early debates generally pitted the out-of-office party against a Presidential action they disagreed with on policy grounds, indicating that the exchange over powers was probably partisan and therefore politically motivated rather than theoretical, as does the fact that views on Presidential power tended to swap whenever the Presidency changed hands. Yet the kind of debate, the situations that were encountered, and the way the debaters changed and refined their views suggests that they had not considered a number of elemental situations when designing the distribution of war powers.

Believing the constitutional framers to have neglected the war powers makes sense, too. They were, in general, far more concerned with the oppression their own government might bring than any oppression inflicted by a foreign government. And they were revolutionaries, with practical experience in rebellions (of the legitimate and illegitimate variety) and government oppression, but little first-hand knowledge of international diplomacy. These men managed to get into a naval war with France a mere 15 years after France helped found our nation! The idea of sending the military abroad without an explicit and long-standing interest, or for longer than a few months of fighting, probably did not occur to them; as George Washington’s farewell address indicates, these men expected our primary interaction with other nation’s to be via trade.

IV. Conclusion

It seems evident that our founding fathers had clear rules in mind for the uses of military force, but that these rules were adequate only to the situations they envisioned and quickly fell short of reality. Any original intent the document had is completely inadequate to our present methods of governing and international discourse, not because the original intent is obsolete but because it was never complete to begin with.

Accordingly, we have evolved a system of war powers that is based on the present political power of those in Congress compared to the President; it is neither consistent nor very theoretically desirable. The Supreme Court, perhaps wisely, has declared the division of war powers a political issue that it largely cannot adjudicate. Our nation would be well-served by the wide acceptance of a more concretely-defined system, but our country’s survival without one is testament to the governing approach the founding fathers formed and their emphasis on internal forms.