Constitutional History and Context

Historical context provides further support to this understanding of the Constitution. The Framers would have understood the distribution of war powers between the executive and legislative branches in the context of the British Constitution, the source of many legal concepts found in the US Constitution. Under the formal British system, the King exercised all war powers, including the power to declare war. A declaration of war was not needed either to begin or to wage a war; instead, it served as a courtesy to the enemy and as a definition of the status of their relations under international law. It notified the enemy that a state of war existed so as to formally invoke the protections of international law. It also played a domestic legal role by informing citizens of an alteration in their legal rights and status: during periods of formal war, citizens of the contending nations could “annoy” the persons or property of the enemy and lawfully keep captured vessels.

British governmental practice in the eighteenth century indicates that Parliament’s control over funding, rather than the role of declaring war, provided a sufficient check over executive warmaking. In the 100 years before enactment of the US Constitution, Britain engaged in eight significant military conflicts but only once “declared” war at the start of a conflict. Parliament’s true check on executive power came through control over the raising of armies and the power of the purse. This allocation of war powers under the British Constitution was not mere happenstance. Rather, the distinction between war powers and powers to fund and legislate was a core element of the separation of powers and the rise of parliamentary democracy.

Critics sometimes claim that the Constitution would not have created a powerful presidency because the Framers had rebelled against monarchy. This view misses the nuances of US political history in the period between the Revolution and the Constitution. After independence, the revolutionaries did indeed turn against executive authority. The new state constitutions sought to weaken the executive by placing explicit restrictions on its power and by diluting its independence and structural unity. In fact, in all but one state, governors were actually elected by the legislature.

But what modern-day critics of the presidency forget is that the Constitution rejected many of these innovations. Many of the drafters and ratifiers of the Constitution believed that the revolutionary state constitutions had gone too far and had led to abuses by unchecked state legislatures. Experiments in fragmenting executive power and frustration with the limited powers of the Continental Congress led reformers to seek the restoration of authority in a unified presidency. Reading the Framers’ treatment of war powers as vesting the power over war in Congress would run directly counter to this larger historical trend.

Details from the Framing debates themselves provide evidence that some of the Constitution’s supporters believed that it replicated the British system. While the Constitutional Convention transferred the power to declare war from the British King to the Congress, an earlier draft of the Constitution had given Congress the power to “make” war, only to have it subsequently changed to the lesser power of “declare” war. When, in the all-important state ratifying conventions, opponents of the Constitution criticized the presidency as a potential monarch, its defenders never trumpeted—although they had every incentive to do so—Congress’s power to declare war. Rather, when pressed during the Virginia ratifying convention with the charge that the President’s powers could lead to a military dictatorship, James Madison argued that Congress’s control over funding would provide enough check to control the executive.

National Security and Congressional Inadequacy

Even if the constitutional text and history do not provide a definite answer, we should then ask whether requiring congressional approval for war would provide significant functional benefits to US national security.

Proponents of congressional war power often argue that the executive branch is unduly prone to war. In this view, if the president and Congress have to agree on warmaking, the nation will enter fewer wars and wars that do occur will arise only after sufficient deliberation. But it is far from clear that outcomes would be better if Congress alone had the power to begin wars.

First, congressional deliberation does not necessarily ensure consensus. Congressional authorization may represent only a bare majority of Congress or an unwillingness to challenge the President’s institutional and political strengths, regardless of the merits of the war. And even if it does represent consensus, it is no guarantee of consensus after combat begins. The Vietnam War, which was initially approved by Congress, did not meet with a consensus over the long term but instead provoked some of the most divisive politics in US history. It is also difficult to claim that congressional authorizations to use force in Iraq, either in 1991 or 2002, reflected a deep consensus over the merits of the wars there. The 1991 authorization barely survived the Senate, and the 2002 authorization received significant negative votes and has become a deeply divisive issue in national politics.

It is also not clear that the absence of congressional approval has led the nation into wars it should not have waged. The experience of the Cold War, which provides the best examples of military hostilities conducted without congressional support, does not clearly come down on the side of a link between institutional deliberation and better conflict selection. Wars were fought throughout the world by the two superpowers and their proxies, such as in Korea, Vietnam, and Afghanistan, during this period. Yet the only war arguably authorized by Congress—and this point is debatable—was the Vietnam War. Aside from bitter controversy over Vietnam, there appeared to be significant bipartisan consensus on the overall strategy of containment, as well as the overarching goal of defeating the Soviet Union. The United States did not win the four-decade Cold War by declarations of war; rather, it prevailed through the steady presidential application of the strategy of containment, supported by congressional funding of the necessary military forces.

On the other hand, congressional action has led to undesirable outcomes. Congress led the United States into two “bad” wars, the 1798 quasi-war with France and the War of 1812. Excessive congressional control can also prevent the United States from entering into conflicts that are in the national interest. Most would agree now that congressional isolationism before World War II harmed US interests and that the United States and the world would have been far better off if President Franklin Roosevelt could have brought the United States into the conflict much earlier.