The war power.

• Author: Paulsen, Michael Stokes
• Position: Separation of Powers in American Constitutionalism

My nearly ridiculous goal for this Essay is to present a comprehensive theory of the Constitution's allocation of war powers and, then, to apply it to every significant issue of the war on terror, in twenty-five pages.

My thesis is straightforward: The allocation of war powers under the Constitution is a classic illustration of the Framers' conception of separation of powers. The Framers regarded the war power as too important to vest it in a single set of hands and so, by conscious design, chopped it up--divided it--and allocated portions of that power to various branches, giving some powers exclusively to each branch and also providing for some areas of overlap, and thus shared authority, among them.

I will make three broad points about the war power as it exists within the Constitution's structural separation of powers. First, the Constitution vests, in the main, in Congress, and not in the President, the decision to initiate war--the authority to take the nation into a state of war. (1) Second, the Constitution vests in the President, and not in Congress, the power to conduct war. (2) Each of these powers is, in the main, autonomous of the powers of the other branch and thus to a substantial degree immune from control by the other's powers.

Third, the Constitution vests no substantive war powers in the judiciary. But questions of the Constitution's allocation of war powers nonetheless can be judicial questions. This susceptibility to judicial decision making does not mean that everything that the courts will decide on such matters is right. Nor does it mean even that everything that the courts say should be followed by the other branches of government. Another aspect of the separation of powers is that the Framers regarded the power to interpret law--the power of constitutional interpretation--as another power too important to vest exclusively in any one branch of government. (3) It too--like the war power--is a divided, shared power. The political branches thus rightfully may use the constitutional powers at their disposal to resist judicial encroachments on the Constitution's assignments of war powers to them. Nonetheless, the judiciary's power to decide cases, including cases concerning the Constitution's allocation of war powers, and to seek to press its interpretations upon the other branches with the limited powers at its disposal, is also part of the separation of powers dynamic.

1. THE CONSTITUTIONAL POWER TO INITIATE WAR (JUS AD BELLUM)

   Consider first the constitutional power to start war--to take the nation from a condition of peace into a state of war. That power is Congress's, not the President's. In the American constitutional order, the power to initiate war is a legislative power and not an executive power.

   1. Preconstitutional Background Understandings of the War Power

      Things were not always that way. Indeed, the war power traditionally was understood to be an aspect of the executive power with respect to foreign affairs. The Framers of the U.S. Constitution wrote against a background understanding that the war power was part of the foreign relations executive power of the king--a description attested to by the best legal authorities known in the eighteenth century, including Montesquieu, Blackstone, and Locke. The Framers wrote against that backdrop, but consciously departed from that familiar design by taking some of the powers traditionally vested in the English king and assigning them instead to the legislature. The most important of those re-allocations in the area of war and foreign affairs is Article I, Section 8's assignment to Congress of the power "[t]o declare War." (4)

   2. The Constitution's Allocation of the War-Initiating Power: Text, Structure, and History

      Congress, and not the President, thus possesses the constitutional power to declare war or not to declare war. This means that Congress, and not the President, has the constitutional power to initiate war. The Commander-in-Chief Clause power of the President is (as I discuss below) a formidable, plenary constitutional power of military command. But it does not include a power to declare war on another nation, entity, or group. The President may not--at least not constitutionally--launch a war all on his own. That power belongs to Congress.

      This proposition should not be controversial. I submit that this is simply the proper understanding of the text--the original public meaning of the words of the Constitution. It is that understanding that should control constitutional practice--not policy, precedent, pragmatism or anything else. (5) And the original meaning of the word "declare" as used in this context--that is, as applied to the power "to declare War"--was to initiate by word or action a legal condition of war. (6)

      Some may be unconvinced by bare arguments from original linguistic meaning of the Constitution's words, but there is more to the argument than that. This understanding of the meaning of the Declare War Clause is supported as well by the structure and internal logic of the Constitution. Specifically, the understanding of the power to declare war as a substantive lawmaking power (and not a mere diplomatic or domestic notice-giving provision) (7) is strongly supported by the location of the power in Article I, Section 8 as one of the specific enumerated lawmaking powers of Congress. The Constitution takes a traditional executive power, relocates it away from the President, and plops it down into a list of substantive powers committed to Congress. The implication from location is not always reliable, but it is hard to avoid here: The Framers took the decision to go to war away from the executive and vested it in the Congress. This inference from structure and relationship is further reinforced by the evident necessity that the Framers felt to assign a specific Commander-in-Chief Clause power to the President in order to make clear what aspects of the war power were not thereby assigned to Congress (i.e., the power of armed forces command--the power to conduct war--which I discuss in the next section). In addition, Article I, Section 10 prohibits states from engaging in war on their own (unless they are invaded or in immediate peril) unless Congress consents. (8) Don't call the President; call Congress--the branch assigned the predominant power to control the decision of the nation (or even a part of it) to engage in war.

      Finally, this conclusion is verified by nearly all of the legislative history and early practice. The Constitutional Convention records, the ratification debates, and the statements and practices of early presidents all support this conclusion. (9)

      The Constitutional Convention debates provide an interesting perspective. (10) An earlier version of what became the Declare War Clause provided that Congress would have the power "to make war." (11) James Madison and Elbridge Gerry moved to substitute "declare" for "make" on August 17. This produced a famous short debate, taking just a few pages in Farrand's Records and Madison's Notes, discussing the proposed alteration of the document's language from "to make war" to "to declare war." (12) Naturally, as with any type of legislative body, the record displays a certain amount of confusion among the delegates as to exactly what the import of the change in wording would be. But two overlapping explanations are prominent. The first is that changing make to declare would leave in the President, as executive, the traditional executive power to repel attacks on the nation--a defensive presidential war power. (13)

      The second explanation is that "declare" was a superior word choice to "make" because the latter might be taken to imply, wrongly, that Congress, the legislative branch, would have the power to conduct war, which was properly an executive function. (14) This little snippet of constitutional drafting history is obviously of interest for its bearing on the meaning of the Commander-in-Chief Clause powers of the President, which I discuss presently in Section II. I like to imagine this discussion occurring under the approving, but studiously silent, gaze--but perhaps arched eyebrows--of the President of the Convention, General George Washington, who had had some familiarity with the problems of wars being run by legislative committees. At all events, the Framers deliberately substituted "declare" for "make," explained their reasons for doing so, and adopted the text in that form.

      There is a natural, intuitive synthesis that comes out of the text, structure, and constitutional drafting history: Congress has the power to take the nation to a state of war where there had been none before, but the President retains the traditional executive power to defend the nation against attacks. There will always be line-drawing issues as to where one power leaves off and the other begins, but this is the nuts and bolts of the Constitution's division of the war power, in terms of the power to start a war. (15)

      It is significant that the text, structure, and historical evidence of original intention all cohere, pointing in a single direction: The President does not have constitutional power to initiate war on his own. Rather, by conscious structural design, the Framers meant to vest that power in the Congress.

   3. Is Historical Practice a "Gloss" on the Meaning of the Constitution?

      One might truly observe, however, that a lot of our nation's actual practice does not conform particularly well to this abstract constitutional division of powers. Presidents seem to start small and large wars, without Congress's authorization, a fair bit of the time. Has our nation's actual constitutional practice in the field of war conformed to the Constitution's provisions? If not, should we conclude that historical practice constitutes a "gloss" of sorts on the meaning of the Constitution, altering how we should understand the Constitution today? Or does it mean, quite the...