PRESIDENTIAL WAR MAKING
The Justice Movement insists on compliance with the constitutional mandate that, unless our nation is under attack or under imminent threat of attack,[34] the decision to go to war or to engage in acts of war is the exclusive province of Congress and that the President has no authority—even if Congress endeavors to delegate its exclusive power to the President—to take our nation to war but only to act as Commander-in-Chief once Congress has determined that war is to be commenced.
The question of who has exclusive authority to make the final decision, based on contemporaneous facts, whether our nation should go to war or engage in acts of war is clearly answered by the War Power Clause of the Constitution. As James Madison stated, “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.”[35] In 1805, while Spanish military forces were threatening Louisiana, President Thomas Jefferson demonstrated his respect for the exclusive congressional war power by writing: “Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force.”[36]
During the process of drafting the Constitution, the initial war power clause provided that Congress was to be given authority to “make” war. However, Madison and Elbridge Gerry successfully changed the word “make” to “declare,” “leaving to the Executive the power to repel sudden attacks.”[37]
Virginia’s George Mason wrote that he was “ag[ainst] giving the power of war to the Executive, because [that branch was] not safely to be trusted with it.” Madison considered war “the true nurse of executive aggrandizement” and stated: “The constitution supposes, what the History of all Gov[ernmen]ts demonstrates, that the Ex[ecutive] Is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ative].”[38]
During the Constitutional Convention at Philadelphia, Madison and the other Founders had debated the quandaries of war. They sought to ensure that, unlike in the Old World societies governed by sovereigns, Americans would go to war only when it was absolutely necessary––and that the decision would be made not by the President but by the legislature.[39]
Abraham Lincoln argued against allowing the President to make the decision to go to war based on the President’s determination that it was necessary to prevent an invasion of the United States:
During the process of drafting the Constitution, the initial war power clause provided that Congress was to be given authority to “make” war. However, Madison and Elbridge Gerry successfully changed the word “make” to “declare,” “leaving to the Executive the power to repel sudden attacks.”[37]
Virginia’s George Mason wrote that he was “ag[ainst] giving the power of war to the Executive, because [that branch was] not safely to be trusted with it.” Madison considered war “the true nurse of executive aggrandizement” and stated: “The constitution supposes, what the History of all Gov[ernmen]ts demonstrates, that the Ex[ecutive] Is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ative].”[38]
During the Constitutional Convention at Philadelphia, Madison and the other Founders had debated the quandaries of war. They sought to ensure that, unlike in the Old World societies governed by sovereigns, Americans would go to war only when it was absolutely necessary––and that the decision would be made not by the President but by the legislature.[39]
Abraham Lincoln argued against allowing the President to make the decision to go to war based on the President’s determination that it was necessary to prevent an invasion of the United States:
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The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us. But your view destroys the whole matter, and places our President where kings have always stood.[40] The Constitution gives the President, within certain bounds, the power, as Commander in Chief, to execute a war approved by Congress.
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Congress declared war during five separate conflicts, the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II.
The Record of Republicans and Democrats
Since the Korean War, during which President Truman made the decision to go to war, there has been no congressional declaration of war. Instead, as occurred in connection with the Vietnam and Iraq Wars, when presidents misrepresented material facts to Congress and to the public, several presidents have far exceeded their constitutional powers and, in the mode of dictators, unilaterally made the final decision to go to war. On some occasions, the decisions by presidents to take our country to war occurred after the unconstitutional delegation to the President of Congress’s exclusive power to make the final decision as to whether war should be commenced, as with the Gulf of Tonkin Resolution, which opened the way for full-scale war in Vietnam, and the Authorization for Use of Military Force Against Iraq Resolution of 2002(“AUMF”). That AUMF aided the commission by the United States of the international crime of war of aggression, according to the International Commission of Jurists in Geneva[41] and two former United Nations Secretaries-General.[42]
Majority Support for Prior Determination by Congress Before Commission of War or Engagement in Acts of War
The public recognizes that the decision as to whether the U.S. should go to war belongs exclusively to Congress. According to a Gallup poll in 1973, 80% favored congressional approval before the president could send U.S. armed forces into action outside the United States. In a 2008 poll, 79% agreed congressional approval should be required. In February 1999, although 54% of Americans approved of a peacekeeping mission in Kosovo, 78% wanted President Clinton to seek approval from Congress. In 2002, 69% said congressional approval was necessary for an invasion of Iraq.[43]
In a 2008 poll, 76% said the president should get the approval of Congress before sending U.S. armed forces into action even if the president did not expect a long combat operation. Seventy percent (52% of Republicans, 69% of Independents, and 83% of Democrats) said such congressional approval should be obtained even if the president wanted to use Air Force or Navy planes to bomb suspected terrorists.[44]
In a 2008 poll, 76% said the president should get the approval of Congress before sending U.S. armed forces into action even if the president did not expect a long combat operation. Seventy percent (52% of Republicans, 69% of Independents, and 83% of Democrats) said such congressional approval should be obtained even if the president wanted to use Air Force or Navy planes to bomb suspected terrorists.[44]
[34] “Early in the process [of drafting the Constitution], Congress was to be given authority to ‘make’ war, but Madison and Elbridge Gerry of Massachusetts successfully changed that word to the more specific ‘declare,’ so the record shows, ‘leaving to the Executive the power to repel sudden attacks.’” Michael Beschloss, Presidents of War (Broadway Books: 2018), at 5.
[35] James Madison, Letters of Helvidius Number 4, pp. 33–39 (printed in Philadelphia Gazette of the U.S., September 14, 1793) (from the Federalist Papers), available at https://founders.archives.gov/documents/ Madison/01-15-02-0070.
“During the Constitutional Convention at Philadelphia, Madison and the other Founders had debated the quandaries of war. They sought to ensure that, unlike in the Old World societies governed by sovereigns, Americans would go to war only when it was absolutely necessary—and that the decision would be made not by the President but by the legislature. Virginia’s George Mason had written that he was ‘ag[ainst] giving the power of war to the Executive, because [that branch was] not safely to be trusted with it.’ James Wilson of Pennsylvania insisted that the Constitution ‘will not hurry us unto war; it is calculated to guard against it.’ Madison himself considered war ‘the true nurse of executive aggrandizement.’ As he reminded Jefferson in 1798, ‘The constitution supposes, what the History of all Gov[ernmen]ts demonstrates, that the Ex[ecutive] Is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ative].’ Michael Beschloss, Presidents of War (Broadway Books: 2018), at 4–5.
[36] Letter from Thomas Jefferson to the United States Congress, December 6, 1805, found at https://founders.archives.gov/documents/Jefferson/99-01-02-2779.
[37] Ferrand, Max, ed. The Records of the Federal Convention of 1787, 4 vols. New Haven, CT: Yale University Press, 1937, p. 319.
[38] Letter from James Madison to Thomas Jefferson, April 2, 1798, Thomas Jefferson Papers.
[39] Michael Beschloss, Presidents of War, New York: Broadway Books, 2018, pp. 4–5.
[40] Quoted in Conor Friedersdorf, “Abraham Lincoln’s Warning About Presidents and War, The Atlantic, July 13, 2012, available at https://www.theatlantic.com/ politics/archive/2012/07/abraham-lincolns-warning-about-presidents-and-war/259767/.
[41] “ICJ deplores moves toward a war of aggression on Iraq,” International Commission of Jurists (March 18, 2003), available at https://www.icj.org/icj-deplores-moves-toward-a-war-of-aggression-on-iraq/.
[42] Ewen MacAskill and Julian Borger, “Iraq war was illegal and breached UN charter, says Annan,” The Guardian (September 15, 2004), available at https://www.theguardian.com/world/2004/sep/16/iraq.iraq; “Former UN head calls Iraq war ‘illegal’” CBC News (March 19, 2003), available at https://www. cbc.ca/news/ canada/former-un-head-calls-iraq-war-illegal-1.380751.
[43] Gregory P. Noone, “The War Powers Resolution and Public Opinion,” Case Western Reserve Journal of International Law (2012), available at https://scholarly commons.law.case.edu/cgi/viewcontent.cgi?article=1073&context=jil.
[44] Frank Newport, “Public Wants Congress to Approve Military Action, Bombings,” Gallup (July 7, 2008), available at https://news.gallup.com/poll/108658/public-wants-congress-approve-military-action-bombings.aspx.
[35] James Madison, Letters of Helvidius Number 4, pp. 33–39 (printed in Philadelphia Gazette of the U.S., September 14, 1793) (from the Federalist Papers), available at https://founders.archives.gov/documents/ Madison/01-15-02-0070.
“During the Constitutional Convention at Philadelphia, Madison and the other Founders had debated the quandaries of war. They sought to ensure that, unlike in the Old World societies governed by sovereigns, Americans would go to war only when it was absolutely necessary—and that the decision would be made not by the President but by the legislature. Virginia’s George Mason had written that he was ‘ag[ainst] giving the power of war to the Executive, because [that branch was] not safely to be trusted with it.’ James Wilson of Pennsylvania insisted that the Constitution ‘will not hurry us unto war; it is calculated to guard against it.’ Madison himself considered war ‘the true nurse of executive aggrandizement.’ As he reminded Jefferson in 1798, ‘The constitution supposes, what the History of all Gov[ernmen]ts demonstrates, that the Ex[ecutive] Is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the Legisl[ative].’ Michael Beschloss, Presidents of War (Broadway Books: 2018), at 4–5.
[36] Letter from Thomas Jefferson to the United States Congress, December 6, 1805, found at https://founders.archives.gov/documents/Jefferson/99-01-02-2779.
[37] Ferrand, Max, ed. The Records of the Federal Convention of 1787, 4 vols. New Haven, CT: Yale University Press, 1937, p. 319.
[38] Letter from James Madison to Thomas Jefferson, April 2, 1798, Thomas Jefferson Papers.
[39] Michael Beschloss, Presidents of War, New York: Broadway Books, 2018, pp. 4–5.
[40] Quoted in Conor Friedersdorf, “Abraham Lincoln’s Warning About Presidents and War, The Atlantic, July 13, 2012, available at https://www.theatlantic.com/ politics/archive/2012/07/abraham-lincolns-warning-about-presidents-and-war/259767/.
[41] “ICJ deplores moves toward a war of aggression on Iraq,” International Commission of Jurists (March 18, 2003), available at https://www.icj.org/icj-deplores-moves-toward-a-war-of-aggression-on-iraq/.
[42] Ewen MacAskill and Julian Borger, “Iraq war was illegal and breached UN charter, says Annan,” The Guardian (September 15, 2004), available at https://www.theguardian.com/world/2004/sep/16/iraq.iraq; “Former UN head calls Iraq war ‘illegal’” CBC News (March 19, 2003), available at https://www. cbc.ca/news/ canada/former-un-head-calls-iraq-war-illegal-1.380751.
[43] Gregory P. Noone, “The War Powers Resolution and Public Opinion,” Case Western Reserve Journal of International Law (2012), available at https://scholarly commons.law.case.edu/cgi/viewcontent.cgi?article=1073&context=jil.
[44] Frank Newport, “Public Wants Congress to Approve Military Action, Bombings,” Gallup (July 7, 2008), available at https://news.gallup.com/poll/108658/public-wants-congress-approve-military-action-bombings.aspx.
