Power to Declare War

“The Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States.”
—U.S. Constitution, Article I, section 8, clause 1

“The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules conquering Captures on Land and Water;
“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”

—U.S. Constitution, Article I, section 8, clauses 11–16

Origins

Like many powers articulated in the U.S. Constitution, Congress’ authority to declare war was revolutionary in its design, and a clear break from the past when a handful of European monarchs controlled the continent’s affairs.

The framers of the Constitution—reluctant to concentrate too much influence in the hands of too few—denied the office of the President the authority to go to war unilaterally. If America was going to survive as a republic, they reasoned, declarations of war required careful debate in open forums among the public’s representatives.1

“The provision of the Constitution giving the war-making powers to Congress, was dictated, as I understand it, by the following reasons,” a young first-term Congressman named Abraham Lincoln wrote in 1848 during America’s War with Mexico. “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 [Constitutional] 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.”2

Constitutional Framing

James Madison was an integral part of the constitutional framing of the House./tiles/non-collection/i/i_origins_biennal_elections_madison_hc.xml Collection of the U.S. House of Representatives
About this object
James Madison was an integral part of the constitutional framing of the House.
Initially, delegates to the Constitutional Convention discussed America’s war powers in general terms, briefly mentioning the “common defence, security of liberty and general welfare” of the country’s citizens.3 Then in early June, 1787, Charles Pinkney of South Carolina argued for “a vigorous Executive,” reopening the war powers issue. But to give the office war-making powers would turn the President into an elected monarch, Pinkney argued. Other delegates, including John Rutledge of South Carolina, James Wilson of Pennsylvania, and James Madison of Virginia agreed, concluding that the powers of war and peace were best reserved for the national legislature.4

By August, the framers had yet to decide where to vest the country’s war powers. Pierce Butler of South Carolina favored the Executive office as best suited to make war. But there was a growing sense that such monumental responsibility belonged with the legislative branch. Not everyone was convinced that the House and Senate should share the power, however, and Pinkney felt that since the Senate already had jurisdiction over treaties, it alone should have discretion to decide war matters as well.

Madison and Elbridge Gerry of Massachusetts sought a middle ground. For Gerry, giving a single office the entirety of the country’s war powers contradicted the goals of a republic, and he and Madison proposed a quick edit, replacing “make” with “declare” so that the Constitution would read “Congress shall have power to declare war.” The change codified congressional authority but made the clause flexible enough to enable the President to defend the country during emergencies. The delegates worried that Congress would be out of session or would act too slowly if foreign forces invaded America. So, despite their resolve to dilute Executive power, they gave the office an implied authority to “make war” as an insurance policy of sorts for America’s security.

Like George Mason of Virginia, the founders felt that war should be difficult to enter, and they expected congressional debate to restrain the war-making process.

On August 17, 1787, the state delegations agreed to strike “make” and insert “declare” by a vote of 8 to 1 (initially it had been 7 to 2, but Connecticut switched its position), and in doing so committed the war powers to Congress. “The constitution supposes, what the History of all Govts demonstrates,” Madison wrote to Thomas Jefferson a few years later, “that the Ex. 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.”6

Constitutional Issues

Of the Constitution’s many checks and balances, few have become as controversial and as consequential as the country’s war powers. Article I is clear in giving Congress the power to declare war and to federalize state militias. But Article II, section 2, names the President “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.” Although the framers ensured that a civilian would lead America’s armed forces, constitutional scholars have debated for years whether the position of Commander in Chief actually gives the President authority to open hostilities or whether it was merely a title the Founders conferred on the chief magistrate.7

When combined with the President’s implied privilege to make war, the question of whether the Commander in Chief carries additional power becomes an issue of vast constitutional consequence, something that’s plagued the federal system and its scholars over time.8 While a close reading of the Convention debates suggests that the framers intended to limit Presidents to defensive actions, a number of administrations, especially after World War II, have broadly interpreted the notion of a defensive war and have committed U.S. armed forces without congressional authority only to ask for it later, if they ask for it at all.9 One recent study has described the Constitution’s language on initiating hostilities as “ambiguous” and more than one scholar has described the Executive war power as “vague.”10 In summarizing the relationship between 1600 Pennsylvania Avenue and Capitol Hill, another political scientist has written recently that “the Constitution is a paradoxical mix of clearly defined war powers for Congress and implied prerogatives for the president,” which over the years created “an uneasy balance between the branches.”11

For most of U.S. history, the Constitution’s checks and balances worked, and more often than not Presidents sought the consent of Congress on war matters. The period following World War II, however, saw the President’s war-making discretion reach a level that made many legislators nervous. By the early 1970s, the relationship between the legislative and executive branches reached something of a tipping point.

The onset of the Cold War, combined with America’s international obligations as a member of the United Nations (UN) and the North Atlantic Treaty Organization (NATO), stretched the executive branch’s foreign policy footprint to corners of the world that the framers of the Constitution could never have imagined. In the summer of 1950, for instance, the President ordered an American response to North Korea’s attack on South Korea, and later committed ground forces in Korea after the UN Security Council asked for help.12 And after consecutive administrations committed America’s military to combat operations in the Dominican Republic, Laos, and Vietnam without formally declaring war, Congress’ mood soured to the point that it passed the War Powers Resolution in November 1973. As stated in the legislation, Congress drafted the War Powers Resolution “to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgement of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities.” Since its enactment, however, the War Powers Resolution has had scant, if any, effect on the military decisions of sitting Presidents. In fact, many administrations have simply “refused to recognize its constitutionality,” according to two political scientists who’ve studied Congress’ ability to influence the White House on war matters.13

Declarations of War and Authorizations for the Use of Military Force

Declaration of War Gavel/tiles/non-collection/4/4-20-War_gavel-2005_124_000.xml Collection of the U.S. House of Representatives
About this object
This gavel was used during the December 11, 1941, session in which the House approved the declarations of war against Germany and Italy. Gavels used in historically significant sessions were occasionally presented as memorabilia.
Since 1789, Congress has declared war 11 times, against 10 countries, during five separate conflicts: Great Britain (1812, War of 1812); Mexico (1846, War with Mexico); Spain (1898, Spanish-American War, also known as the War of 1898); Germany (1917, World War I); Austria-Hungary (1917, World War I); Japan (1941, World War II); Germany (1941, World War II); Italy (1941, World War II); Bulgaria (1942, World War II); Hungary (1942, World War II); and Rumania (1942, World War II).14 In each of these 11 instances, the President appealed to Congress for authorization either in person before a Joint Session or in a written request.15

Far more common, especially in the modern era, have been congressional authorizations for the use of military force (AUMF) abroad. Historically, AUMFs have been much narrower in scope and much more limited than formal declarations of war, such as when Congress gave the President clearance to protect American ships against French aggression in 1789 and against Tripoli’s navy in 1802. After World War II, however, AUMFs became much broader, often granting Presidents sweeping authority to engage America’s military around the world.16 Take, for example, the Tonkin Gulf Resolution of 1964. As communist forces in Vietnam took increasingly militaristic actions against U.S. forces, Congress authorized the President, in sweeping but vague language, “to promote the maintenance of international peace and security in southeast Asia.”17

In fact, despite engaging in conflicts in places like Vietnam and Iraq over the last 70 years, Congress has not declared war since 1942. Rather, the individual congressional AUMFs have been interpreted “as fully empowering the President to prosecute the wars,” according to law professors, Curtis A. Bradley and Jack L. Goldsmith.18 Although the concept of the AUMF has existed since the start of the Republic, the specific use of the term became commonplace in the 1990s during the Gulf War.19

The House’s Role

For most of the modern era, the House has acted quickly once Presidents have requested formal declarations of war. Traditionally, the House Committee on Foreign Affairs has considered bills sending American troops to fight abroad, and in at least one instance, in 1924, the House has pulled “legislation tending to promote peace and discourage war” from the Judiciary Committee and referred it to the Committee on Military Affairs.20 Beginning with World War II, all declarations of war have come before Congress as joint resolutions, and in each instance the House suspended the rules in order to quickly pass the measure.21

The decision to send the nation to war is perhaps Congress’s gravest responsibility, and in the House war votes can be solemn, weighty occasions. For the Members, to declare war against a foreign power is to send their constituents, their neighbors, their family, and even themselves into harm’s way.

One day after Japan bombed Pearl Harbor in early December 1941, President Franklin Roosevelt addressed a Joint Session of Congress, laying out his cause for war. When the House gathered immediately afterward to discuss Roosevelt’s request, Jeannette Rankin of Montana repeatedly sought recognition to address the chamber. Twenty-four years earlier, Rankin had voted against America’s entry into World War I, and on the eve of World War II, even as the war resolution against Japan went through its first reading, Speaker Sam Rayburn of Texas, who witnessed Rankin’s previous vote in 1917, refused to recognize her. As Members prepared for the final vote, many approached Rankin hoping to convince her to vote for the war; at the very least they hoped she would vote present, or abstain all together. When the reading clerk reached her name during the roll call on the resolution’s final passage, Rankin voted no, the only vote against. The bill passed 388–1. “As a woman I can’t go to war,” she said, “and I refuse to send anyone else.” After the chamber erupted in protest to her vote, Rankin waited in a phone booth before the Capitol Police escorted her back to her office.

With one exception early on, votes to declare war in the House tended to pass with overwhelming majorities. Declaring war or passing an AUMF, however, is only the first step. Once the fighting begins, Congress assumes another constitutional role: that of oversight.

Country (War)Date House Vote
Great Britain (War of 1812)June 4, 181279–49
Mexico (War with Mexico)May 11, 1846174–14
Spain (War of 1898)April 25, 1898Voice vote
Germany (World War I)April 6, 1917373–50
Austria-Hungary (World War I)December 7, 1917365–1
Japan (World War II)December 8, 1941388–1
Germany (World War II)December 11, 1941393–0
Italy (World War II)December 11, 1941399–0
Bulgaria (World War II)June 3, 1942357–0
Hungary (World War II)June 3, 1942360–0
Rumania (World War II)June 3, 1942361–022

For Further Reading

Bradley, Curtis A. and Jack L. Goldsmith, “Congressional Authorization and the War on Terrorism.” Harvard Law Review 118 no. 7 (2005): 2047–2133.

Burgess, Susan R. “War Powers.” In The Encyclopedia of the United States Congress, edited by Donald C. Bacon, et al., vol. 4, pages 2097–2100. New York: Simon & Schuster, 1995.

Cannon’s Precedents of the House of Representatives of the United States. Volume 7, §1894. GPO: Washington, D.C., 1935.

Deschler’s Precedents of the House of Representatives of the United States. Volume 3, Chapter 13, §3–11. Washington, D.C.: Government Printing Office, 1976–1977.

Elsea, Jennifer K. and Matthew C. Weed. “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications.” Congressional Research Service, 18 April 2014, RL31133.

Fisher, Louis. President and Congress: Power and Policy. The Free Press: New York, 1972.

_____. Presidential War Power. Lawrence, Kan.: University Press of Kansas, 1995.

_____. Constitutional Conflicts between Congress and the President. 4th edition. Lawrence, Kan.: University Press of Kansas, 1997.

_____. Congressional Abdication on War and Spending. College Station, Tex.: Texas A&M University Press, 2000.

_____. “Clinton’s Military Action: No Rivals in Sight.” In Rivals for Power: Presidential-Congressional Relations, edited by James A. Thurber, pages 229–254. Lanham, Md.: Rowman & Littlefield Publishers, Inc.

Fowler, Linda L. “Congressional War Powers.” In The Oxford Handbook of the American Congress, edited by Eric Schickler and Frances E. Lee, pages 812–833. Oxford University Press, 2011.

Hinds’ Precedents of the House of Representatives of the United States. Vol. IV, §4164. GPO: Washington, D.C., 1907.

Howell, William G. and Jon C. Pevenhouse. While Dangers Gather: Congressional Checks on Presidential War Powers. Princeton: Princeton University Press, 2007.

Katzmann, Robert A. “War Powers Resolution.” In The Encyclopedia of the United States Congress, vol.. 4, edited by Donald C. Bacon, et al., pages 2100–2102. New York: Simon & Schuster, 1995.

Kriner, Douglas L. After the Rubicon: Congress, Presidents, and the Politics of Waging War. Chicago: University of Chicago Press, 2010.

Torreon, Barbara Salazar. “Instances of Use of United States Armed Forces Abroad, 1798-2015.” Congressional Research Service, 15 January 2015. R42738.

Weed, Matthew C. “The War Powers Resolution: Concepts and Practice.” Congressional Research Service, 3 April 2015. R42699

Zeisberg, Mariah. War Powers: The Politics of Constitutional Authority. Princeton: Princeton University Press, 2013.

Footnotes

1Louis Fisher, Presidential War Power (Lawrence: University Press of Kansas, 1995): 1–4.

2Abraham Lincoln to William H. Herndon, 15 Feb. 1848, Collected Works of Abraham Lincoln, vol. 1, http://quod.lib.umich.edu/l/lincoln/lincoln1/1:458.1?rgn=div2;view=fulltext (accessed 28 May 2015).

3Max Farrand, ed., The Records of the Federal Convention of 1787, vol. 1 (New Haven: Yale University Press, 1911, 1966): 18–23.

4Farrand, ed., Records of the Federal Convention of 1787, vol. 1: 64–66, 70.

5Max Farrand, ed., The Records of the Federal Convention of 1787, vol. 2 (New Haven: Yale University Press, 1911, 1966): 318–319; Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 (New York: Simon & Schuster, 2010): 43; Jack N. Rakove, Original Meaning: Politics and Ideas in the Making of the Constitution (New York: Alfred A. Knopf, 1997): 263.

6James Madison to Thomas Jefferson, 2 April 1798, in The Founders’ Constitution, vol. 3, Philip B. Kurland and Ralph Lerner, eds. (Indianapolis: Liberty Fund, Inc., 1987): 96. See also, Fisher, Presidential War Power: 6.

7Fisher, Presidential War Power: 10–11; Fisher, Constitutional Conflicts Between Congress and the President, 4th ed. (Lawrence: University of Kansas, 1997): 256–295.

8Linda L. Fowler, “Congressional War Powers,” in The Oxford Handbook of the American Congress, ed. Eric Schickler and Frances E. Lee (New York: Oxford University Press, 2011): 813; Fisher, Presidential War Power: 11–13. For a look at how this process, especially secretive operations by the President, have played out during the nuclear age, see Garry Wills, Bomb Power: The Modern Presidency and the National Security State (New York: Penguin Press, 2010): 148–160.

9Fowler, “Congressional War Powers”: 815–816. “With neither statutory authority nor a declaration of war, Presidents have used force abroad on many occasions, ostensibly to protect life and property. They have justified their actions on the basis of executive responsibilities they find inherent in the Constitution.” See Fisher, Constitutional Conflicts between Congress and the President: 263–264, 266 (quote).

10Mariah Zeisberg, War Powers: The Politics of Constitutional Authority (Princeton, N.J.: Princeton University Press, 2013): 5–6. Louis Fisher has also written that “the President acquired the responsibility to protect American life and property abroad. He has invoked that vague prerogative on numerous occasions to satisfy much larger objectives of the executive branch.” See Louis Fisher, President and Congress: Power and Policy (New York: The Free Press, 1972): 175.

11Linda L. Fowler, “Congressional War Powers”: 815.

12Deschler’s Precedents of the House of Representatives of the United States, vol. 3 (Washington, D.C.: GPO, 1977): Ch. 13 §5; Garry Wills, Bomb Power: The Modern Presidency and the National Security State (New York: Penguin Press, 2010): 105–119.

13Linda L. Fowler, “Congressional War Powers”: 816; Fisher, Constitutional Conflicts between Congress and the President: 256, 274–277; “War Powers,” Library of Congress, http://www.loc.gov/law/help/war-powers.php (accessed 1 June 2015); Robert Katzmann, “War Powers Resolution,” in The Encyclopedia of the United States Congress, vol. 4, ed. Donald C. Bacon, et al. (New York Simon & Schuster, 1995): 2100–2102; William G. Howell and Jon C. Pevenhouse, While Dangers Gather: Congressional Checks on Presidential War Powers (Princeton, N.J.: Princeton University Press, 2007): 4. On U.S. involvement in Korea and the precedent it set regarding undeclared war, see Larry Blomstedt, Truman, Congress and Korea: The Politics of America’s First Undeclared War (Lexington, Ky.: University Press of Kentucky, 2016). On the failure of the War Powers Resolution, see also Louis Fisher, “Clinton’s Military Actions: No Rivals in Sight,” in Rivals for Power: Presidential-Congressional Relations, ed. James A. Thurber (Lanham, Md.: Rowman & Littlefield, 2002): 229. On the reaction by the White House since the War Powers Resolution, see Wills, Bomb Power: 184–196.

14Jennifer K. Elsea and Matthew C. Weed, “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications,” Congressional Research Service, 18 April 2014, RL31133: 4.

15Elsea and Weed, “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications”: 1.

16Elsea and Weed, “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications”: 5; Deschler’s Precedents of the House of Representatives of the United States, vol. 3 (Washington, D.C.: GPO, 1977): chapter 13, §8; Curtis A. Bradley and Jack L. Goldsmith, “Congressional Authorization and the War on Terrorism,” Harvard Law Review 118 no. 7 (2005): 2073–2074. For more information on the use of military force abroad following World War II, see Barry M. Blechman and Stephen S. Kaplan, Force without War: U.S. Armed Forces as a Political Instrument (Washington, D.C.: The Brookings Institution, 1978).

17P.L. 88–408.

18Bradley and Goldsmith, “Congressional Authorization and the War on Terrorism”: quote 2060, on the change to broad authorizations, see 2075–2076, 2078.

19The earliest mention in a congressional source appears to occur in Senate debate in 1982. See Congressional Record, Senate, 97th Cong., 2nd sess. (14 April 1982): 6808. The short title for empowering the President to fight in Iraq in 1991 was “Authorization for Use of Military Force Against Iraq Resolution.” See H.J. Res. 77, P.L. 102–1. The earliest mention of “authorization for use of military force” in our ProQuest newspaper database comes from November 15, 1990, in an article in the Austin American Statesman about the Gulf War. It shows up again in the New York Times a few months later. See, “Bush Tries to Ease Congress’ War Fears,” 15 November 1990, Austin American Statesman: A1; Adam Clymer, “Confrontation in the Gulf,” 11 January 1991, New York Times: A1.

20Hinds’ Precedents of the House of Representatives of the United States, vol. 4 (Washington, D.C.: GPO, 1907): §4164; Deschler’s Precedents of the House of Representatives of the United States, vol. 3: Ch. 13 §5; on Military Affairs, see Cannon’s Precedents of the House of Representatives of the United States, vol. VII (Washington, D.C.: GPO, 1935): §1894. For an example from the 19th century, see J.C.A. Stagg, Mr. Madison’s War: Politics, Diplomacy, and Warfare in the Early American Republic, 1783–1830 (Princeton, N.J.: Princeton University Press, 1983).

21Deschler’s Precedents of the House of Representatives of the United States, vol. 3 (Washington, D.C.: GPO, 1977): chapter 13, §5, p. 1793.

22House votes from Elsea and Weed, “Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications”: 4.