War Powers Essay

War powers, broadly construed, refer to the authorities and responsibilities to initiate, conduct, and terminate hostilities or other military measures taken to defend and preserve the safety of an organized political territory. They include the authority to begin or initiate military hostilities, the authority to mobilize resources necessary to create wartime military forces, the authority to take measures to prevent or hinder an adversary’s ability to operate, command, and conduct operations with armed forces, and the authority to conclude a peace agreement that ends hostilities. The term war powers frequently is used in a narrower sense, referring only to the initiation or declaration of war and not its conduct and termination. At other times, the term can be used in the singular, referring broadly to all measures taken by the government to ensure its self-preservation in the face of hostilities. Early in the U.S. Civil War, President Abraham Lincoln famously referenced “calling out the war power of the government,” by which he meant taking extraordinary military measures to save the Union.

Because they entail risking the safety and property of its citizens for some common purpose, war powers are among the most sovereign and significant responsibilities of government. War powers have traditionally been considered an extension of a nation’s foreign relations and therefore falling within the executive purview. This traditional view is an extension of the British monarch’s royal prerogative over matters pertaining to foreign relations and war. War powers also are, among the vast powers of government, viewed as the potentially most dangerous and prone to abuse. The power to wage war against enemies—foreign and domestic—also can be used to overthrow the existing political order for the personal gain of those wielding it. Yet these powers are necessary for modern government to provide for the security of its citizens. Restricting the government’s power to wage war could impede a nation’s ability to defend itself.

Seeing the power to wage war as necessary but dangerous, constitutional democracies have sought to divide war powers among the different branches of government to mitigate and check against their potential abuse. The most explicit and of referenced example is the U.S. Constitution’s divided assignment of war powers and responsibilities among the Congress, the president, and the judiciary. Congress constitutionally holds the power to declare war and to raise and support armies. Once the Congress declares war, the president has full responsibility for the conduct of the war as commander-in-chief. The president, moreover, uses a military that the Congress created and continues to fund through legislative acts. The president and the Senate have a role in the treaty-making process, suggesting that both branches must be in some agreement to end a war. The judiciary can review the constitutionality of specific congressional and presidential actions, such as the suspension of habeas corpus in wartime, the wartime seizure of private property, military conscription, and the detention of enemy combatants.

However, the extent of the presidential power to initiate hostilities or deploy military forces, short of declaring war, remains a point of serious debate within the United States. Some argue for limited presidential power over military actions because the Constitution subordinates the president’s role to Congress. David Gray Adler, for example, suggests that the Constitution “makes Congress the sole and exclusive repository of the ultimate foreign relations powers—the authority to initiate war” (Fisher 2004, 15).The president, therefore, may only use the military once Congress has officially declared war. If an official declaration of war is not issued, Congress would still need to authorize the president to engage in military acts.

Others argue that the president’s broad latitude and discretion over foreign relations and national defense should include the use of military force short of full-scale war, in order to achieve the nation’s foreign policy goals. They observe that the executive and legislative are equal and independent branches assigned separate but related powers that could overlap or conflict in some circumstances. The Constitution, thus, invites “an open and dynamic struggle” between the president and Congress over war, and foreign affairs more broadly, by assigning each of them broad war-related powers (Yoo 2005, 17–22). A declaration of war is only necessary when mobilizing the entire society for total war. Military engagements on a lesser scale, they hold, are well within the inherent powers of the presidency to conduct foreign relations.

The Framers of the U.S. Constitution did grant some leeway to the president, suggesting that it had the power to “repel sudden attacks” and defend the nation from obvious invasion. Extrapolating broad presidential war powers from this emergency provision, however, only further complicates the boundary between executive and legislative authorities over war, because it is most often the president who would determine if an attack were imminent. Through the Presidential Oath, moreover, the Constitution assigns the president the unique duty to “preserve, protect, and defend,” which could serve as an overriding source for extensive presidential powers in wars that pose an existential threat to the United States.

In reaction to the Vietnam War (1959–1975), Congress passed (over President Nixon’s veto) the War Powers Resolution, also known as the War Powers Act, in 1973 in an attempt to “insure that the collective judgment of both the Congress and the president will apply to the introduction of United States Armed Forces into hostilities” (United States Code). Though often touted as an attempt by Congress to “reassert” its role, the resolution actually recognizes that the president may introduce military forces into existing or imminent hostility, even in cases where there is no congressional declaration of war. The president is required to report to Congress upon the introduction of forces into hostilities, but they remain in place for up to 60 days (or 90 should the president deem it necessary) before the resolution requires Congress to authorize an extension.

Bibliography:                                               

  1. Adler, David Gray. “The Constitution and Presidential Warmaking: The Enduring Debate.” Political Science Quarterly 103, no. 1 (1988): 1–36.
  2. Berdahl, Clarence. War Powers of the Executive in the United States. Urbana: University of Illinois Press, 1921.
  3. Fisher, Louis. Presidential War Power. 2nd ed. Lawrence: University Press of Kansas, 2004.
  4. Sofaer, Abram. War, Foreign Affairs, and Constitutional Power: The Origins. Cambridge, Mass.: Ballinger, 1976.
  5. United States Code,Title 50, Chapter 33, Sections 1541–1548.
  6. Yoo, John. The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11. Chicago: University of Chicago Press, 2005.

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