By Dr. James W. Finck
My last article dealt with the growing crisis with Iran and the history of American presidents using missile attacks on their enemies. Based on those acts, House Democrats have passed a war powers resolution ordering the president to stop all hostilities with Iran within thirty days. This brings up many Constitutional questions and seems confusing for many. In some ways the Constitution contradicts itself by appointing the president commander-in-chief, while giving Congress the power to declare war. If this seems confusing, that is because it is, even to our political leaders. This is not the first time Congress and the president have tackled this issue and as always it will probably not be the last.
First things first. Article II, Section II of the U.S. Constitution reads, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.” That is it. It does not go on to clarify what that means. At the same time Article 1, Section 8, Clause 11 states, “To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Here the Constitution does give some clarification. In Clauses 12-16 it reads, “To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; 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 discipline prescribed by Congress.” From this it seems the Constitution does favor Congress when it comes to war powers.
As I have said before, the Constitution was purposely written vague. It is meant to be interpreted. From only reading the Constitution, it seems as if the Founders wanted to give Congress more authority in warfare. This idea is also supported by statements of the Founders.
Historically, war powers had always been in the hands of the monarch. The monarch could take the nation to war without any consideration for the people’s welfare. When debating the power of our president, the Founders appointed many of the same functions of the monarch to the president, but one area in which the Founders felt restrained was war making. In a radical departure from Europe, the people’s representatives were given the power to declare war.
Some believed the president was best served with all war powers, but too many saw too much military power in one branch as a threat to democracy and so gave the power to Congress. The compromise came in the way it is written. Originally, the clause in Article I read Congress has the power to “make” war. That was changed to Congress has the power to “declare” war. The thinking was that the president as commander-in-chief needed the ability to use the army in self-defense if Congress was not in session. What seems to be agreed today is that the Founders’ intention was to give the president power to wage a defensive war.
For most of our history, there was no reason for debate, as the wars we fought were seen as defensive, whether they were or not. James Madison received a declaration of war when the U.S. was attacked by England in 1812. James Polk claimed America was attacked by Mexican forces and hence a declaration of war was needed. Lincoln told Congress there was open rebellion. McKinley asked for a declaration of war after the believed attack on the USS Maine. Woodrow Wilson needed to keep the world safe for democracy and FDR needed to save us from the Nazis and Pearl Harbor.
Even though each of these wars was officially declared as a war, what we see is that the presidents, each time, taking on more power for themselves. Lincoln constantly fought with Congress over the war, constantly taking more authority to himself. The Emancipation Proclamation is a great example of a war act Lincoln made without congressional approval. After WWII, presidents took even more power for war. With the Cold War it was easy for them to continue with the idea that the commander-in-chief had responsibility for defense. With beliefs such as the Domino Theory, it was believed that we must stop communism everywhere in order to stop it here. So, wars such as Korea and Vietnam were conceived as defensive wars--which presidents took us into without an official declaration. I should say that starting in the 20th century we saw the president take on more power and responsibility in almost every aspect, not just war making. Presidents today cannot get away with half what they did in the 19th Century.
Finally, during the Vietnam War, Congress decided to take back some of their war powers and in 1973 passed the War Powers Resolution. Because of limited space, I can only summarize the effects of the resolution and have to skip important steps. Basically, the president has, in the end, 90 days to use the military until he has to pull back, unless either given permission by Congress or the U.S. is under attack. It is suggested he confer with Congress before any actions taken, but not required. After any attack, the president is required to report to Congress within 48 hours. However, what that should look like is not spelled out. This became an issue with President Trump when Democrats and even some Republicans were not satisfied with the president’s report after the recent missile attack.
Presidents have seen the Wars Powers Resolution as unconstitutional. Nixon vetoed the Resolution on the grounds it handcuffed his ability to act as Commander-in-Chief. Other presidents have also argued against this. In 1983, the courts did agree that the president did have the right to sign or veto any war resolutions passed by Congress, making it necessary to compromise.
Historically Speaking, reading the notes from the Founders does seem to favor the Congress in the ability to make war, but also that the powers should be shared. War powers seem to follow the same track as most congressional/presidential powers. What we see is that in the 20th Century Congress allowed the president to slowly strip away congressional powers.
As I wrote in an earlier column, we saw the same things with tariffs. Maybe we are seeing a new trend of Congress trying to reclaim their power. We will not know until the majority power in Congress is the same as the party of the president to see if this is a real change or, as I guess, just a political show against a president from a different party.
For my Texas readers, if any of you are interested I will be speaking at the Weatherford College Interdisciplinary Academic Conference on Feb 27 at 5:00. The Conference is free and open to the public. For more information you can call 817-598-6326. If you attend, make sure you come by and say hello.
Dr. James Finck is an Associate Professor of History at the University of Science and Arts of Oklahoma and Chair of the Oklahoma Civil War Symposium. Follow Historically Speaking at www.Historicallyspeaking.blog or Facebook at @jamesWfinck.
