[Expanded Answer to Question 1]
The War Power Clause of the Constitution, Article I, Section 8, Clause 11, states:
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[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .
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In an early draft of the Constitution, Congress was empowered “to make war,” but the word “declare” was substituted for “make” to make it clear the President has the flexibility to repel a sudden or imminent attack against the United States.
At the Constitutional Convention, only one person, Pierce Butler, proposed vesting the power to initiate offensive war in the President. His position was unsupported by anyone else at the Convention.
The Framers strongly believed that the President of the United States should not have the same war-making power as the British monarch, who could unilaterally decide whether to go to war. James Wilson, widely believed to be the greatest lawyer among the Framers, argued that the “Prerogatives of the British Monarch [were not] a proper guide in defining the Executive powers” in the Constitution. James Madison “agree[d with] Wilson in his difinition [sic] of executive powers—executive powers ex vi termini, do not include the Rights of war & peace &c. but the powers [should] be confined and defined—if large we shall have the Evils of elective Monarchies.”
John Rutledge noted “he was not for giving [the Executive] the power of war and peace.” Elbridge Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” Patrick Henry emphasized the distinction between the war-making power of Congress (and not the President) under the United States Constitution and the war-making power of the British Monarchy, noting that under the Monarchy, “[t]he King declares war; the House of Commons gives the means of carrying it on.”
The following are statements from Framers of the Constitution and those involved in the ratification of the Constitution, making it clear that the decision as to whether to go to war belongs exclusively to Congress:
At the Constitutional Convention, only one person, Pierce Butler, proposed vesting the power to initiate offensive war in the President. His position was unsupported by anyone else at the Convention.
The Framers strongly believed that the President of the United States should not have the same war-making power as the British monarch, who could unilaterally decide whether to go to war. James Wilson, widely believed to be the greatest lawyer among the Framers, argued that the “Prerogatives of the British Monarch [were not] a proper guide in defining the Executive powers” in the Constitution. James Madison “agree[d with] Wilson in his difinition [sic] of executive powers—executive powers ex vi termini, do not include the Rights of war & peace &c. but the powers [should] be confined and defined—if large we shall have the Evils of elective Monarchies.”
John Rutledge noted “he was not for giving [the Executive] the power of war and peace.” Elbridge Gerry said he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” Patrick Henry emphasized the distinction between the war-making power of Congress (and not the President) under the United States Constitution and the war-making power of the British Monarchy, noting that under the Monarchy, “[t]he King declares war; the House of Commons gives the means of carrying it on.”
The following are statements from Framers of the Constitution and those involved in the ratification of the Constitution, making it clear that the decision as to whether to go to war belongs exclusively to Congress:
James Madison, the primary architect of the Constitution:
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The constitution supposes, what the History of all Govts 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[ature].
The power to declare war, including the power of judging the causes of war is fully and exclusively vested in the legislature . . . the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war. |
Thomas Jefferson:
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We have already given in example one effectual check to the dog of war by transferring the power of letting him loose from the Executive to the Legislative body. . . .
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Alexander Hamilton:
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“The Congress shall have the power to declare war”; the plain meaning of which is, that it is the peculiar and exclusive duty of Congress, when the nation is at peace, to change that state into a state of war. . . .”
[T]he President is to be commander-in-chief of the army and navy 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 military and naval forces, as first General and admiral of the confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,—all which, by the Constitution under consideration, would appertain to the legislature. |
James Iredell:
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A very material difference may be observed between this power, and the authority of the king of Great Britain under similar circumstances. The king of Great Britain is not only the commander-in-chief of the land and naval forces, but has power, in time of war, to raise fleets and armies. He has also authority to declare war. The President has not the power of declaring war by his own authority, nor that of raising fleets and armies. These powers are vested in other hands. The power of declaring war is expressly given to Congress . . . .
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James Wilson:
Madison’s notes of the discussions at the Constitutional Convention reflect the view of James Wilson that only Congress had the power to determine if the U.S. should be in a state of war or peace: “Mr. Wilson preferred a single magistrate, as giving most energy dispatch and responsibility to the [Executive] office. He did not consider the Prerogatives of the British Monarch as a proper guide in defining the Executive powers. Some of these prerogatives were of Legislative nature. Among others that of war & peace &c.”
During the Pennsylvania ratifying convention, Wilson made clear that Congress’s sole power to declare war was the sole power to initiate a military conflict:
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This [new] system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into a war.
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Early Presidents who had been involved in the Constitutional Convention and members of Congress recognized that only Congress could decide whether the United States would go to war or engage in acts of war.
Emphasizing that the decision about whether to engage in acts of war is exclusively Congress’s, President George Washington would not even make the decision about sending troops to fight an Indian tribe in Tennessee without Congress’s authorization, stating (in a letter to Governor William Moultrie of South Carolina): “The Constitution vests the power of declaring War with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”
When Congress was presented the question as to whether war should be commenced against France in 1798, there was no question raised about Congress’s sole power to commence war. In debating whether to declare war, Congressman Sitgreaves noted:
Emphasizing that the decision about whether to engage in acts of war is exclusively Congress’s, President George Washington would not even make the decision about sending troops to fight an Indian tribe in Tennessee without Congress’s authorization, stating (in a letter to Governor William Moultrie of South Carolina): “The Constitution vests the power of declaring War with Congress, therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”
When Congress was presented the question as to whether war should be commenced against France in 1798, there was no question raised about Congress’s sole power to commence war. In debating whether to declare war, Congressman Sitgreaves noted:
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The House know[s] that, by the distribution of powers under this Government, it is only competent for Congress to declare the country in war; therefore, until that declaration is made by this department [i.e., the Congress], the Executive and Judiciary cannot act in the same way as if the country was at war.
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As President, Thomas Jefferson stated that “Congress alone is constitutionally invested with the power of changing our condition from peace to war.”
When President Madison asked Congress for a declaration of war in connection with the War of 1812, he made clear that the decision about whether the U.S. should go to war against Britain was solely a matter for Congress to decide:
When President Madison asked Congress for a declaration of war in connection with the War of 1812, he made clear that the decision about whether the U.S. should go to war against Britain was solely a matter for Congress to decide:
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Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of Events . . . is a solemn question which the Constitution wisely confides to the legislative department of the Government. In recommending it to their early deliberations I am happy in the assurance that the decision will be worthy the enlightened and patriotic councils of a virtuous, a free, and a powerful nation.
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Two of our nation’s foremost scholars regarding the war power, Francis Wormuth and Edwin Firmage, taught at the University of Utah and co-authored the seminal book To Chain the Dog of War: The War Power of Congress in History and Law. They summed up the war power under the Constitution as follows: “The legislative branch was purposely given the war power as a check upon the impulsive use of military force by the executive.”
