The War Powers in Brief: On the Irreducible Politics of the Matter

• Author: Roger Pilon
• Position: Vice president for legal affairs at the Cato Institute and director of Catos Center for Constitutional Studies
• Pages: 49-58

Roger Pilon - Roger Pilon is vice president for legal affairs at the Cato Institute and director of Cato's Center for Constitutional Studies. This article is based on remarks delivered at a Cardozo Law School symposium, "American Democracy in Times of War," sponsored by the Cardozo Public Law, Policy & Ethics Journal on March 24, 2003.

Page 49

A brief discussion of the Constitution's war powers, about which whole treatises have been written,¹ can hardly do justice to so important and subtle a subject. Yet diere is room for a brief discussion that sets nuance and detail aside. By focusing on the essence of the matter, such an essay can clarify issues more easily than lengthy treatises might. I hope to do that here.

We start, as we must, with the central constitutional question: Does the president, exercising his executive power under Arricie II, including his power as commander in chief of the nation's armed forces, need congressional authority under the Declare War Clause of Arricie I before engaging those forces in hostile acts? Plainly, if the answer to that question were clear, the debate that began at the Constitutional Convention would have ended long ago. It has not.

Those who answer in the affirmative argue, in the main, that the president may wage war without congressional authority only to repel sudden attacks.² After reflecting on the text of the Constitution, the original understanding of the Framers, the history of the war powers, and the practical aspects of their exercise, I have concluded that the affirmative answer is mistaken.³ That does not mean, however, that the Page 50 president is free, constitutionally, to wage war as he wishes. Rather, it means simply that a declaration of warwhich is essentially a juridical act by Congress, fraught with its own perilsis not a necessary precondition for the president's undertaking acts of war. If Congress wishes to restrain a president's foreign ventures, which it rarely does, it has, first, the power of the pursewar cannot be waged without the wherewithal to do so, of courseand, second, the power ultimately to impeach and remove the president.

It is no accident, therefore, that during our constitutional history, presidents have committed forces to combat over 200 times, depending on how one counts such events, but on only five of those occasions has a declaration of war been issued.⁴ And never has a court ruled...