How to Avoid an Unconstitutional War: A Beginner’s Guide for Presidents and Congresses

Do we really need to go over all of this again?

A president asserts the prerogative to take the nation into a state of war, completely on his own authority as “Commander in Chief” of the nation’s armed forces, in a situation not involving an attack upon the United States or its citizens or armed forces stationed abroad, and not involving an emergency situation in which there is no time to consult with Congress.

Congress counters by insisting that the power “to declare War” is vested in Congress, not the president, and that only Congress can authorize the use of offensive military force against an enemy nation or power—and then adding its views as to exactly how much force should be used, where, when, by whom, and with what goals and time limits.

The president welcomes—invites—such congressional “support” for his claimed right to make war on his own, but continues to maintain that, constitutionally, he does not need it. Congress meets, deliberates, debates, argues. The president hems and haws, blusters and postures. Meanwhile, the putative enemy prepares, thankful for the additional time in which to act.

Sound familiar? It should. This scenario has happened numerous times in modern history. It is happening yet again, with respect to proposed US military intervention in Syria. Yet no one seems to learn the eighth-grade-civics-class basics on how the Constitution of the United States allocates the powers of war and peace. As a consequence, we repeat—endlessly—decades-old debates and never fashion coherent principles for how to deal with these situations when they arise the next time, as they inevitably do. And we often act in a way contrary to the original meaning of the Constitution and the conscious design of its framers.

What Does the Constitution Say About War Powers?

The framers of the Constitution did not intend for the president of the United States to have the power to take the nation to war, all on his own. The Constitution’s allocation of war-power authority is, rather, a classic application of the framers’ vision of separation of powers. Congress, not the president, has the power “to declare war,” a term of art the framers used to embrace the decision to initiate a state of war with another nation or force.

Prior to the adoption of the Constitution, the powers of war and peace traditionally were regarded as part of the executive power—in England, the province of the king. The framers of the Constitution deliberately altered this balance by relocating the power to take the nation into a state of war from the executive to the legislature—to Congress. The records of the Constitutional Convention, the discussions in the ratifying conventions, the defense of the proposed Constitution by Alexander Hamilton, James Madison, and John Jay in The Federalist essays, and the statements of early presidents and congresses, are almost uniform in recognizing this as a foundational principle.

The framers carefully worded the power. An earlier draft had granted Congress the power to “make” war, but Madison—quickly seconded by others—moved to change the word “make” to “declare.” The Convention’s discussions reveal that this word change was thought to have two important consequences. First, it would leave the executive the power of defensive war—the power, in Madison’s words, to “repel sudden attacks” on the nation or its people. Second, it made clear that Congress would not have the power to conduct war (as the word “make” otherwise might have been taken to imply), the power of war-execution being recognized as “an Executive function” of the president.

The specific clause in Article II of the Constitution making the president “Commander in Chief” of the nation’s armed forces was clear textual confirmation of this division of authority: Congress may control the decision to go to war, but the president conducts any constitutionally authorized war. He chooses the targets, the means, the amount of force, the military objectives, the policies and practices associated with prisoners, detention, interrogation, and military punishment, and also when to call a halt in hostilities.

In a nutshell: constitutionally, Congress starts wars and the president fights them. Final confirmation of Congress’s power over the nation’s decision to go to war is provided by Article I, section 10 of the Constitution, which forbids any state to “engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay”—unless it has the consent “of Congress.” Don’t call the president; call Congress.

Nothing in the Constitution’s text, structure, or historical evidence of original meaning supports the proposition that the president constitutionally can take the nation into a condition of war solely on his own authority, without congressional action. At most, the president may (1) respond to attacks upon the nation, its possessions and territories (including embassies and bases abroad), its armed forces, or its people; (2) engage in rescue operations that may involve military forces but do not initiate a condition of war; and (3) act in other emergency situations, out of genuine but strict necessity, in obedience to the president’s sworn duty to “preserve, protect and defend the Constitution of the United States” by preserving, protecting, and defending the nation whose Constitution it is.

Those exceptions are implicit in the Constitution’s retention of a limited executive war power in the president as Commander in Chief. They involve no “stretching” of the Constitution’s allocation of war powers or “evolving” of its terms. They simply require the application, to today’s world, of the original meaning of the Constitution, in a manner faithful to the framers’ division of authority.

Right and Wrong Uses of Presidential Military Power

With that in mind, many unilateral presidential uses of military force in the past fifty years can be fully justified on such traditional constitutional understandings. But not all of them: there have also been many times when presidents have started wars without proper constitutional authority. Frequently both Congress and the courts have willingly acquiesced in such presidential unilateralism.

Does that mean the Constitution has changed? Hardly. It means that the Constitution has been violated on more than one occasion. It is a fundamental principle of our constitutional law that practice that departs from the meaning of the Constitution is simply unconstitutional.

Of course, not all the unconstitutional uses of military force have been bad from a moral or policy standpoint. They have simply been illegal acts, and bad in that still-important constitutional sense. (War is always bad, of course, but sometimes the alternative may be worse; there are such things as “just wars.”)

Consider three notable examples of unconstitutional wars.

First, the Korean War: President Harry S. Truman ordered US forces into armed combat, on his own authority, for what quickly became, if it wasn’t already, a war. Congress never authorized the use of military force. A majority may have supported the war, politically, at least at first, but there was never a congressional vote to declare war or a constitutionally equivalent authorization resolution.

True, Congress voted appropriations for defense, but that is not the same thing, by any stretch. True, the United Nations authorized its member nations to use armed force in collective defense of South Korea, but international law authority—legitimacy in the eyes of some relevant part of the world—is an entirely different thing from US constitutional law authority, and cannot substitute for it. The UN cannot exercise Congress’s constitutional power to declare war. Conversely, Congress’s constitutional power to authorize war is not in the least dependent on international approval. A president’s constitutional duty is likewise to the Constitution and to the United States, not to international law.

Second, President Bill Clinton’s Kosovo bombing campaign of 1999: a sustained, months-long air war never authorized by Congress. Congress in fact voted down an authorization to use force, but lacked the votes to enact a resolution affirmatively forbidding war or cutting off funds for the bombing. Constitutionally, Kosovo was a near-clone of Korea—an illegal, unilateral presidential war—but with two interesting (albeit legally immaterial) differences.

Clinton lacked UN authorization, and so hid behind the supposed international authority of a joint NATO operation. This may have helped some as a matter of international law, but it makes no difference in terms of the US Constitution.

In addition, Clinton’s action was in considerable tension with Congress’s War Powers Resolution (WPR) of 1973, a law enacted over President Richard Nixon’s veto that purports to limit presidents’ deployment of military troops for events that do not qualify as “war.” The sensible aim of the WPR was to prevent presidential military actions that might make hostilities more likely.

In this respect, the WPR is constitutionally problematic. It arguably intrudes upon the president’s sphere of powers as Commander in Chief. But the WPR also makes crystal clear that it is not to be construed as authorizing presidential military force and, further, that appropriations acts and defense treaties should not be understood as congressional authorizations of war either. That part of the WPR is plainly constitutional.

Still, it did not stop Clinton’s Justice Department from concluding, implausibly, that the president could bomb Kosovo on his own authority—because Congress had not said that he couldn’t do so, because it was a NATO operation, and because Congress had not cut off funds for the bombing. Kosovo may have been morally just, but it was an unconstitutional war.

Third and finally, consider the recent example of Libya. Again, the US was involved in sustained offensive military operations against the territory and government of another nation, Qaddafi’s Libyan regime. Again, put to one side whether this was right as a matter of policy and morality: the Libyan engagement was flatly unconstitutional. Obama’s justification was shameless and embarrassing in the extreme.

Stripped to its essentials, the argument was that Congress’s power to declare war did not apply, because this was not a “war.” And it was not a war because the president said that he didn’t mean for this to be a war. He meant it to be a “limited” military engagement. And besides, presidents have deployed troops abroad before, without congressional action. Voila! A war is not a war if the president says it is not a war; Congress’s power over the decision to initiate offensive military force vanishes with the wave of the president’s hand.

By contrast, some wars labeled illegal turn out to have been constitutionally unassailable. The Vietnam War lacked an explicit declaration of war, but the Gulf of Tonkin Resolution of 1964, broadly and vaguely worded though it was, clearly gave the president authority to use military force in Southeast Asia.

In the days immediately following September 11, 2001, President George W. Bush obtained explicit—and breathtakingly sweeping—authorization from Congress to wage war against al Qaeda, its allied groups and individuals, and nations harboring them. That authorization (which Obama rather stunningly has asked Congress to repeal or modify) provided and still provides the constitutional authority for targeted drone attacks in Afghanistan, Pakistan, Yemen, and elsewhere; the killing of Osama bin Laden; and other anti-terror military actions. Bush also obtained a separate, overlapping authorization for use of force specifically against Iraq in 2002.

President Obama and Syria

What about today? Why is Obama seeking congressional authorization for the use of force in Syria, even though he claims—quite wrongly—not to need one as a constitutional matter and even though he did not ask for one for Libya? The cynical, and perhaps partially correct, answer is that he is seeking political cover for actions he never really wanted to take, concerning which he had painted himself into a corner (drawing a “red line” which practically invited the killing of scores of thousands, without consequence, up to that point), for which he had failed diplomatically to receive international support, and for which he wants the maximum possible blame-sharing if things abroad go wrong.

A less cynical, and perhaps also partially correct, answer is that Obama has run out of even implausible constitutional arguments and knows it. There is no plausible connection to the 2001 authorization of military force against al Qaeda and its allies. There is no conceivable argument that the situation presents a direct threat to the US, or that this is a rescue operation: it is purely a humanitarian intervention, involving the offensive use of military force. (This is not at all to disparage such a motivation; the moral duty to protect others from harm, when one can do so, may be among the most just of reasons for a just war.)

Finally, confronted with the lack of support of allies, Obama could not even claim to be acting under the auspices of international authority, or merely “leading from behind,” as in Libya. The Intermittent Internationalist was thrust back solely on whatever constitutional authority he had to act alone, constitutionally and internationally. And he suddenly acquired an overdue constitutional conscience. To be sure, Obama felt he could not be entirely honest about it, given his past statements, but at least this time he is asking for the authority he in fact needs, constitutionally, before taking US forces into armed conflict abroad.

Whether Congress should give him such authority is a delicate and deeply important question of moral obligation toward innocent others, practical calculation of seen and unforeseen consequences, and concern about the ability and credibility of an unreliable Commander in Chief asking to wage a “limited” war with unclear goals and uncertain means. What it is not a question of is constitutional power. Congress must authorize the use of military force in these circumstances, or the use of such force would be as flagrantly illegal as any act of any American president in using military force, ever in our nation’s history—maybe more so.

A related constitutional aside: it is fruitless, and equally unconstitutional, for Congress to authorize the use of force but attempt to micro-manage how it is to be used (as some versions of the proposed resolution now being debated would do). As noted, the conduct of war, once authorized, lies in the hands of the president. Congress has the power to declare war, and the president does not. But the president has the power to conduct war as Commander in Chief—and Congress does not.

Conclusion: Congress, Not the Court, Must Decide How to Respond

The enormously important constitutional questions of power to initiate and conduct war are not always, or even very often, issues that will or properly can come to the courts for resolution. In the area of war powers, this is true for very practical reasons. Under the Constitution, the federal courts, including the Supreme Court, can only decide actual “cases” and “controversies” involving real, concrete disputes between parties with discrete, personal legal interests at stake, opposed to one another. Members of Congress, and probably even Congress as a whole, lack legal standing to bring a lawsuit directly against the president, and should not try to do so.

The proper way for Congress to assert its constitutional views is through its actions—or refusals to act—in the exercise of its legislative powers, not to try to punt its own constitutional responsibilities to the courts. That does not make such matters any less constitutional questions. It simply makes them constitutional questions for the political branches to resolve, not the courts. These officers, too, swear an oath to observe, and presumably faithfully interpret, the Constitution.

Congress and the president are thus, rightly, on their own. It remains to see whether they will act constitutionally, and therefore rightly.