This paper examines the ongoing constitutional tension between the U.S. Congress and the President over the authority to make war. Beginning with the Framers' intent as expressed in Article I, Section 8, the paper traces how presidential war-making power has expanded from the administrations of Theodore Roosevelt and Woodrow Wilson through Franklin Roosevelt, Lyndon Johnson, Richard Nixon, Bill Clinton, and George W. Bush. It analyzes the War Powers Resolution of 1973, its practical limitations, and the repeated failure of Congress to assert its constitutional role. The paper concludes that despite constitutional safeguards, political pressures and wartime urgency have consistently allowed presidents to exceed their war-making authority at the expense of congressional oversight.
War has become a part of the human world. When we examine events from the past to the present, it is clear that human beings have long relied on weapons to deal with conflicts. Even though war has become an element of human custom, efforts have always been made to control its outcomes and the techniques employed in waging it. These efforts have resulted in ongoing debates within Western civilization about the proper methods and timing of war. In the case of America, the question of which branch of government should have the power to make war has been a matter of persistent dispute.
Several experts hold the opinion that the president of the United States has come to occupy powers that exceed their intended limits and override Congress far beyond what the framers of the Constitution envisioned for the office. The central questions are: Have we allowed the president to exceed his constitutional bounds in war making? And if so, have those excesses now become institutionalized?
Many argue that the excessive role U.S. presidents have assumed over the years threatens the stability and integrity of the democracy the Constitution was designed to protect. The President is authorized to safeguard and protect the Constitution, to implement laws passed by Congress, to act as Commander-in-Chief to suppress disorder or curb revolt, to appoint federal judges, and to settle foreign agreements. Presidents have always been under intense public scrutiny, even before radio and television made a president's every move the subject of international attention. They have confronted violent partisan attacks from opposing politicians, citizens, and journalists exercising the American traditions of freedom of speech and freedom of the press. Thomas Jefferson's description of the presidency as "a splendid misery" captures well the weight of the office.
Article I, Section 8 of the Constitution states that all powers to make laws — including the power to make laws for itself and for other departments — rest with Congress. Congress is also vested by the Constitution with the power to carry those laws into effect. The U.S. Constitution further states that the President, as Commander-in-Chief, has the right to introduce U.S. forces into situations of war or hostility only under particular circumstances: in the event of a declared war, when particular statutes authorize it, or in the event of a national emergency resulting from an attack by another country.
Section 1542 states further that the President shall in all circumstances consult with Congress when the question at hand involves committing the Armed Forces of the United States into environments where hostility exists or is imminent. The section also advises the President to consult Congress when armed forces are to be withdrawn or when they no longer need to remain engaged in situations of hostility.
Alexander Hamilton, who served as President Washington's Secretary of the Treasury, held the opinion that the office of the President possessed powers that were inherent, even if those powers had not been explicitly granted or written into the Constitution by its framers. Later presidents began to exploit this idea, and by the early twentieth century, President Theodore Roosevelt had expanded his powers considerably. Roosevelt believed the presidency had a direct connection to the American people, and he used that relationship to build public support for his actions.
With the powerful medium of the press, Roosevelt sought public attention and tried to shape public opinion through publications. However, it was Woodrow Wilson who most profoundly transformed the presidency — shifting it from an office largely insulated from public opinion to one that actively sought public approval and attention. Wilson was the first U.S. president to hold regular press conferences as a means of communicating his policies directly to the people through the media. He saw press conferences as a way to win public confidence for his agenda.
Although Wilson personally favored a parliamentary system of government, he abandoned any effort to amend the Constitution along British lines. Instead, he favored expanding the powers of the U.S. president through reinterpretation of the existing Constitution. In his view, the Constitution should reflect the evolving ideas of the American public. He did not seek to institute direct democracy but rather to coordinate the relationship among the people, the president, and the legislature. His most significant institutional contribution was the idea that the president should serve as the leader of his party in Congress.
One could clearly observe an increase in presidential power during the Wilson era. Many people came to regard the U.S. President as holding the most powerful office in the world. The powerful scope of that office was demonstrated when Kennedy and Johnson dispatched U.S. Armed Forces to Vietnam without the permission of Congress and without a congressional declaration of war.
When Franklin D. Roosevelt came to office in 1933, foreign policy was further reshaped as he extended support and cooperation to the Allied powers during World War II. Roosevelt entered into several agreements with the Allied powers during that conflict without the backing of Congress. Similarly, Lyndon B. Johnson operated under the Tonkin Gulf Resolution. It was President Nixon, however, who established the pattern of asserting that the President had the power, without congressional approval, to allocate Armed Forces and weapons anywhere in the world.
Today, the U.S. president holds considerable dominance in matters of foreign policy, and this trend set by earlier presidents has continued. Without seeking the support of Congress, President Bill Clinton launched the war on Yugoslavia. Though that conflict was relatively brief, it significantly extended the practical powers of the presidency. Earlier presidents had used the media and press conferences to translate their policies into public approval; more recent presidents used public opinion more aggressively, as a tool for overriding Congress itself.
"Demagoguery fears, Bush's imperial presidency, post-9/11 powers"
"WPR origins, Iraq debate, and limits of congressional authority"
"Yugoslavia, Iraq, Kosovo, and Congress's abdication of war powers"
Franck, Thomas M. "Rethinking War Powers: By Law or by 'Thaumaturgic Invocation'?" The American Journal of International Law, Vol. 83, Issue 4, October 1989, pp. 768–775.
Hargrove, Erwin C. and Hoopes, Roy. The Presidency: A Question of Power. Boston: Little, Brown and Company, 1975, pp. 31–69.
Hooker, Richard D. Jr. "Presidential Decision-making and Use of Force: Case Study Grenada." Parameters XXI (Summer 1991): p. 64.
McDonald, Forrest. The American Presidency: An Intellectual History. Lawrence, KS: University Press of Kansas, 1994, pp. 45–72.
Milbank, Dana. "Going Backwards: In War, It's Power to the President." Washington Post, November 20, 2001, pp. 3–6.
Mostert, Mary. "Making Sense in a Senseless World of Bombing Friends and Protecting Enemy Spies: A 'Military Target' to Bill Clinton, Like the Word 'Sex' and 'Is' Has Been Redefined." Original Sources, May 25, 1999, pp. 7–9.
Neustadt, Richard. Presidential Power: The Politics of Leadership. New York: Wiley, 1960, pp. 21–55.
Powell, Michael. "Appeals Court Weighs Bush's War Powers: Act of Congress Needed for Iraq Invasion, Suit Says." Washington Post, March 12, 2003, pp. 5–6.
"United States: War Powers Resolution." The American Journal of International Law, Vol. 68, Issue 2, April 1974, pp. 372–376.
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