On the Perennial U.S. War Powers Fight

by Deborah Pearlstein

For readers interested in the domestic U.S. law and history of how the U.S. government authorizes the use of force abroad, I had a little piece this weekend over at Daily Beast summarizing the state of play. Among other things, it laments not only the executive practice of not going to Congress as often as it should, but also the gradual loss of other checks on the war power the Constitution’s drafters expected would operate. Here’s a snippet.

The framers reasons for requiring congressional assent for engagements beyond [self defense] reflected their belief that war was “the greatest of national calamities” and should therefore require the agreement of more—not fewer—members of government. More, it was motivated by a commitment to political accountability in a democracy. Rejecting the British “new model” army of Oliver Cromwell and its associated tradition of tyranny and oppression, the framers thought our armed forces should be manned by the citizen-soldier, one incapable of being turned to oppress The People of which he was part. The People themselves would be called up to fight. The Constitution would require Congress publicly to authorize military expenditures “in the face of their constituents” every two years. And only Congress could vote to take the country into war. War would and should be impossible in a free society without The People and their representatives’ consent. Fast forward two centuries, and all these checks have long since ceased to function. The citizen-soldier gave way to national conscription, which in turn gave way to today’s all-volunteer force. The requirement that Congress publicly authorize all military funding has been weakened by today’s vast reliance on private contractors, making it easier for legislators to shield huge swaths of military-related spending from public view by lodging them in less visible appropriations for other departments…. Madison assumed individuals in power would be ambitious, would want to assert their views, and would want to use their power to affect change. Ambition in Congress would counteract ambition in the Executive, and the daily struggle would help keep all the branches in check. But ours has become a Congress lacking all ambition, preferring to hide in the shadows of presidents whose own political courage sometimes fails. Together, they have helped make it ever more possible for the American people to neither feel nor bear the costs of war.


3 Responses

  1. You note in the full essay that Congress has the power to “declare” war and does not have an exclusive power to “make” war (presumably so that the Pres. could engage in self-defense). From S. Ct. decisions, it is widely assumed that the express power to “declare” is also an exclusive congressional power — but the others in Art. I, sec. 8 may not be exclusive congressional (e.g., as opposed to the treaty power or presidential powers set forth in Art. II).
    The statement that “only Congress could vote to take the country into war” would be true re: declarations (and the Pres. does not “vote” by the way), but if the Pres. can “make” war it would not matter.

  2. p.s. with respect to Lincoln, the S.Ct. used the law of nations to support a presidential blockade after the armed attack, but the S.Ct. also addressed prior general fed. stats. in the Prize Cases (an opinion that has been read and misread in a couple of ways). see http://ssrn.com/abstract=2061835 regarding the Prize Cases, etc.

  3. New posting at JURIST is available here: http://jurist.org/forum/2014/09/jordan-paust-war-lawful.php

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