Congressional War Powers

Author:Edwin B. Firmage

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The Constitution assigns the power to declare war solely to the Congress, one of the wisest of the many CHECKS AND BALANCES built into the American political system. Throughout American history, however, Presidents have committed acts of war without congressional authorization. The question of where to assign the power to initiate and conduct war was thoroughly debated during the framing of the Constitution. The outcome of that debate was a document that clearly did not give the President unlimited WAR POWERS but in fact separated the power to conduct war from the power to initiate war.

The Constitution grants Congress the power to issue a DECLARATION OF WAR and to "grant letters of Marque and reprisal." There is no question that the ORIGINAL INTENT of the Framers of the Constitution was to vest in the Congress the complete power to decide on war or peace, with the sole exception that the President could respond to sudden attack on the United States without congressional authorization. During the CONSTITUTIONAL CONVENTION OF 1787, the debates centered on an original draft of the war power providing that "the legislature of the United States shall have the power ? to make war." One member of the convention, CHARLES PINCKNEY, opposed giving this power to Congress, claiming that its proceedings would be too slow; PIERCE BUTLER said that he was "voting for vesting

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the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it." Butler's motion received no second, however.

JAMES MADISON and ELBRIDGE GERRY, meanwhile, were not satisfied with the original wording, that the legislature be given the power to make war. They moved to substitute "declare" for "make," "leaving to the Executive the power to repel sudden attacks." The meaning of this motion, which eventually was carried by a vote of seven states to two, was clear. The power to initiate war was left to Congress, with the reservation from Congress to the President to repel a sudden attack on the United States. As THOMAS JEFFERSON explained in 1789, "We have already given ? one effectual check to the dog of war by transferring the power of letting him loose, from the executive to the legislative body, from those who are to spend to those who are to pay."

Acts of war, acts of reprisal, and acts of self-defense?all have been taken by past Presidents, but seldom without a rationalization of...

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