09/25/2013 05:35 pm ET Updated Nov 25, 2013

War Powers: Constitutional or Imperial Presidency

The deliberations of the Constitutional Convention of 1787 were held in strict secrecy. One of the anxious citizens gathered outside Independence Hall, a Mrs. Powel, asked Benjamin Franklin, "Well, Doctor, what have we got, a republic or a monarchy?" Without hesitation, Franklin responded, "A republic, if you can keep it." The framers feared that a concentration of power in a single branch, as in a monarchy, was the greatest threat to individual liberties. Accordingly, the new republic divided powers across three coequal branches. The war power was one of the most important powers to divide. How are we doing, Dr. Franklin?

The framers of the Constitution carefully placed the power to declare war in the legislature to check the war-proneness of the executive. Presidents since Washington have been consolidating their power over foreign affairs and the use of military force. Washington, Lincoln, and FDR wielded extraordinary powers during times of national crisis, but they made no claims to authorities beyond those enumerated in the Constitution. They took the initiative and in extreme cases asked permission after the fact risking rebuke, including censure and impeachment. Truman is the first to claim extraconstitutional authorities early in the Cold War initiating the rise of what has been called the imperial presidency. The end of the Vietnam War presented one opportunity to restore the constitutional presidency, and the end of the Cold War another, but Congress fumbled both opportunities. The debate over the Syria intervention hinted at a third opportunity for a return to a constitutional presidency, but it too appears to have fizzled.

The Constitutional Convention was held behind closed doors, and the closest thing we have to an official transcript is James Madison's notes and letters to Thomas Jefferson. The Federalist and Anti-Federalist papers presented the competing arguments to the public in the debate leading to ratification add to our understanding.

The framers feared too much power concentrated in any branch of government. Madison, principal architect of the Constitution, established the three branches of government, in Articles I, II, and III, and then enumerated the authorities of each to establish the checks and balances that would prevent concentration of power.

To what expedient, then, shall we finally resort, for maintaining in practice the necessary partition of power among the several departments laid down in the Constitution? ... [T]he great security against a gradual concentration of the several powers in the same department consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. ... Ambition must be made to counteract ambition. (Madison, Federalist 51)

War making was one of the most important powers to divide, and the authority to take the nation to war was a significant subject of debate in 1787 at the Philadelphia convention. Pierce Butler of South Carolina recommended that the president should have that authority because he "will have all the requisite qualities and will not make war but when the nation will support it." Elbridge Gerry of Massachusetts countered that he "never expected to hear in a republic a motion to empower the executive alone to declare war." Gerry prevailed.

The Constitution supposes what the history of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the Legislature. (Madison to Jefferson)

At the same time, the framers were well aware that command of military and naval forces must be guided by one. The principle of unity of command was well understood.

The President of the United States is to be "commander-in-chief of the army and navy of the United States ..." The propriety of this provision is so evident in itself ... Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power in a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength forms a usual and essential part of the definition of the executive authority. (Hamilton, Federalist 74)

But commander in chief powers were limited.

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies -- all which, by the Constitution under consideration, would appertain to the legislature. (Hamilton, Federalist 69)

Among the framers, Madison favored the Congress as policy maker while Hamilton was the strongest and most persistent champion of an energetic executive. According to Madison, "it was Congress's constitutional role to determine the substance and direction of American foreign policy, while the task of the president was limited to implementing the will of the legislature." And even Hamilton proposed that the Senate "have the sole power of declaring war" and that the executive "have the direction of war when authorized or begun." "With the war-making propensities of absolute monarchs in mind, the framers of the Constitution took care to assign the vital foreign policy powers exclusively to Congress."

The preponderance of war-making powers resides with Congress as enumerated in Article I.

Article I, § 8. The Congress shall have Power ... To provide for the common Defense ... To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; ...To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers vested by this Constitution in the Government of the United States or in any Departmental Officer thereof.

The remaining war-making powers reside with the president as chief executive, chief diplomat, and commander in chief of the armed forces.

Article II, § 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.

And Article III gives the Supreme Court the sole authority to interpret the Constitution and "establish bounds to legislative discretion." Court justices would be "selected for their knowledge of laws acquired by long and laborious study" while "members of the legislature will rarely by chosen with a view to those qualifications." The Court would thus check a legislature that deviated too far from its constitutional authorities. (Hamilton, Federalist 81)

Article III. The judicial Power shall extend to all Cases, in law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority.

The Supreme Court quickly reinforced congressional war powers to include declared wars and lesser uses of force that were "limited in place, time, and objective." The principal court rulings of 1800, 1801, and 1804 were delivered when the framers' intent was within recent memory.

The Cold War
Presidential dominance over Congress, largely through claims of supposed commander-in-chief authorities, virtually uncontested from 1945 to 1965, underwent somewhat of a reversal after Vietnam. Truman was the first to claim extraconstitutional war powers initiating a "police action" in Korea without requesting or receiving congressional authorization. Eisenhower took a more conservative view and saw Congress as a full partner. Presidential powers grew during the Kennedy-Johnson years and peaked under Nixon. Following past excesses, Congress's scrambling to reclaim powers contributed to the weakness of the Carter administration. Following Carter, the Reagan administration set out to reclaim imagined lost powers and presidential dominance, and Congress bowed to a popular president.

Presidential historians and scholars converged on the idea of an imperial presidency toward the end of the Nixon-Agnew administration as each was forced from office in disgrace. As the Nixon era came to an end, Arthur Schlesinger published the 1973 classic, The Imperial Presidency. "When the constitutional balance shifts to the presidency, the presidency can be said to become imperial." Schlesinger goes on to argue that the domain of foreign policy is the "perennial threat to the constitutional balance."

When the 104th Congress convened in 1995, the Soviet Union was no longer a unifying threat. A strongly ideological Republican majority in Congress was pitted against a Democratic president initially weak in foreign policy and further weakened by events in Somalia, Haiti, and Bosnia. If ever there would be conditions favoring restoration of congressional over presidential war powers, this was it.

In 1998, as the House impeached Clinton, presidential scholars predicted the end of the imperial presidency. But by 1999 a new imperial presidency was emergent. In the Senate, the Republican Party's presidential aspirations for Robert Dole, and Newt Gingrich's leadership in the House, caused Congress to flail and then fail. Establishing a balanced budget took legislative priority over reasserting congressional war powers.

Presidential candidates needed to appear presidential and not obstructionist. In the House, Gingrich argued for a stronger hand for the presidency as did John McCain in the Senate. Presidents and presidential aspirants tend to favor presidential dominance. Madison's balancing ambitions failed as the ambitions of congressional leaders lay with the executive rather than the legislative branch.

On a permanent war footing during the Cold War, every use of military force risked direct super power confrontation, and that risk induced some caution in presidential decisionmaking. The dissolution of the Soviet Union removed that risk. A competing superpower no longer disciplined presidents, Congress had become accustomed to not disciplining presidents, and presidents would not discipline themselves.

Arguments over Presidential Dominance
Two divergent schools of thought were apparent. One school favored a conservative interpretation of the Constitution with congressional dominance in war powers. The other school favored a liberal extrapolation granting extraconstitutional authorities to the president. The debate has been vigorous and of great interest to specialized scholars but has not engaged the public. Clinton's unauthorized use of force precipitated a debate in the Presidential Studies Quarterly between David Merlin and David Adler that nicely captures the two dominant interpretations of war powers.*

The Conservative View: Textualist and Intentionalist Interpretations. The doctrine of original intent forces interpreters of the constitutional text to seek meaning from the intentions of the framers, including the debates during the summer of 1787 captured in Madison's notes and the Federalist Papers that accompanied the ratification process. But textualists reject the doctrine of original intent instead following the text that is written rather than the rationale that produced it. Conservatives tended to either textualist or intentionalist interpretations. Both preserve congressional dominance.

The Liberal View: Living Document Interpretation. Others believe instead that the framers could not have anticipated the technological advances of two centuries and that the text must be open to interpretation in the current context. They subscribe to the living document school. For them, therefore, the constitutional text and the authors' original intentions are anachronisms and are of interest only to academics. The living document interpretation is held by those Liberals with interventionist tendencies. The living document school is typified by Mervin's response to Adler's article criticizing the Clinton administration's unauthorized use of military force.

The framers sought to make Congress preeminent in war making, an understandable and plausible intention at the end of the eighteenth century. More than two hundred years later, the situation has changed profoundly. Prodigious technological development, the expiration of US isolation, and the massive information advantages that now accrue to the executive have combined to undermine the reasoning that lay behind the fashioning of the War Clause. These realities have gained credence among members of Congress, judges, and the public at large, but have yet to be widely accepted in the academic community.

The Conservative Response: Follow it or Amend It. Continuing the living document argument, Mervin points out that the Constitution's framers were fallible. They spoke in less than enlightened terms of women, Africans, and American natives. Just as those pronouncements came from an anachronistic value system, so too do congressional war powers. Countering from the conservative side, Adler acknowledges those constitutional defects, but adds that those anachronistic positions were altered by the constitutionally prescribed amendment process.

What is at stake here is nothing less than the rule of law, the marrow of which consists of presidential subordination to the Constitution. ... If a president strongly, even fervently, believes military force is necessary, he is allowed to argue his case before Congress. But he may go no further if constitutional government is to command any respect.

A Neo-Conservative View: The Unitary Presidency. A new argument for the imperial presidency emerged as the Republican Party changed and the meaning of "conservative" changed with it. While the living document view minimized, essentially ignored, the framers' intent and text to arrive at the imperial presidency, neoconservatives, attempted to justify the imperial presidency based on text and intent. They arrived at the unitary presidency.

The classic explanation for extra constitutional powers wielded by the chief magistrate is what John Locke referred to as the prerogative of the crown. The Lockean prerogative is "the power to act according to discretion for the public good, without the prescription of the law and sometimes even against it." Support for the Lockean prerogative is not found in the constitutional text or the framers' intent.

In fact, Thomas Jefferson proclaimed, "a party of revolution against the royal prerogatives -- the divine right of kings and the corruptions of empire associated with an essentially unfettered monarch." We would be a nation of laws, not men. Nixon's statement, "When the president does it, that means that it is not illegal," captures the rule-of-man over rule-of-law attitude.

The sole organ claim is also cited frequently as legal support for presidential war. In the Supreme Court case, Curtiss-Wright, the Court concludes that the president is the "sole organ of the nation in its external relations." Given full context, "the president was 'sole organ' in announcing and implementing policy, not in making it." And Curtis-Wright was about foreign commerce, not war.

The unitary presidency argument discounts the design objective of preventing a concentration of power in one branch, discounts the coequal status of the three branches, discounts the congressional war powers of Article I, emphasizes the commander-in-chief power in Article II, and discounts the interpretive powers of the Supreme Court.

It is exceedingly difficult to understand how presidential war derives from a textualist or intentionalist interpretation of the Constitution. The argument is made, nonetheless. John Yoo, a political appointee in the Office of Legal Counsel, authored many of the most extreme positions during the Bush 43 administration that were later repudiated. His name, more than any other, is associated with the unitary presidency. According to Louis Fisher, the non-partisan Congressional Research Service's expert on constitutional separation of powers, Yoo "never distinguished between the president's defensive powers as opposed to initiating offensive actions against another country." And the distinction is the crux of the matter.** The president's defensive powers are quite strong, while his offensive powers are non-existent.

Semantic Arguments: The Meaning of War. And there are those who argue presidential power via the meaning of war. Truman called the conflict in Korea a "police action." When challenged about Clinton's military action against Iraq in 1998, Secretary of State Madeleine Albright responded "We are talking about using military force, but we are not talking about a war. That is an important distinction." It is an important distinction, but Supreme Court rulings in the early 1800s made clear that both uses of force were subject to congressional authorization.

In 2011, the Office of Legal Counsel submitted its opinion to the Obama White House on the "Authority to use Military Force in Libya." Its opinion rested in large part on "whether the military operations that the President anticipated ordering would be sufficiently extensive in 'nature, scope, and duration' to constitute a 'war' requiring prior specific congressional approval." It concluded that the degree of involvement anticipated did not constitute a war.

And presidents have conducted a variety of air strikes without congressional authority. Air strikes were conducted against Libya (1986), Iraq (1993), Bosnia (1993), the Sudan and Afghanistan (1998), and Yugoslavia (1999). Previously allowed under international law, the UN charter made illegal the reprisal -- an act that follows a previous illegal act of another state. Reprisals continue, however, usually justified as acts of self defense. The legality of modern reprisals, for example, Reagan's air strike against Libya and Clinton's air strike against Iraq, are questionable at best, without congressional authorization and against international law.

Extra-Legal Arguments: Precedent. Another view cites precedent rather than law. Republican presidential aspirant Representative Peter King of New York recently argued against the need for congressional authorization to use force in Syria citing examples from the Reagan, Clinton, and Obama administrations. Rape and murder occur with alarming regularity, but frequency of those criminal acts does not bestow legality.

And Here We Are...
The dominant parties have not taken permanent positions on the issue of presidential war. As with many principles, the parties have traded places over time. Renowned constitutional historian, Leonard Levy, provides the mainstream and conservative view that "the imperial presidency has no support in the framer's understanding." Many, not all, Liberals have found that the literal text and original intent provide a sound foundation for their policy preferences and have moved away from the living document school. Liberal Democrats and Libertarian Republicans are agitating for the return to constitutional checks on presidential war making and the rule of law. Centrist Democrats and neo-conservative Republicans hold to the imperial presidency, and the imperial presidency -- whether rationalized by the living document, unitary presidency, or precedent -- still dominates.

Several explanations exist for why the shift has taken place. One of the more compelling arguments is that the shift is due to Congress's desire to avoid risk and accountability. Others attribute the shift from congressional government to presidential government to the weakened parties that cannot discipline Congress against a unitary president. To explain more recent behavior, still others point to the lack of widely agreed to post-Cold War policy objectives; a quarter century after the end of the Cold War -- when US foreign policy was driven to contain communism -- the U.S. has yet to reach a new political consensus on its desired role on the 21st century world stage.

When dealing with leaks about NSA data collection, President Obama, a constitutional lawyer, made a surprising suggestion to Congress: take back some of the powers granted in the Patriot Act. After bypassing Congress over intervention in Libya, Obama turned to Congress before using force in Syria. It is remarkable that a sitting president would consider diminishing the power of his office, but Congress hasn't taken the bait. As with the 104th Congress, budget battles will take precedence over constitutional war powers. Another opportunity missed.

What's your view -- a republic of divided powers or an unchecked president? Should we (a) follow the Constitution as written, (b) amend the Constitution to grant the president the war making powers of the old European monarchs, or (c) ignore the Constitution and just accept what has become common practice -- the imperial presidency.

* David Gray Adler, "The Clinton Theory of the War Power," Presidential Studies Quarterly 30, no. 1 (March 2000): 155-168. David Mervin, "Demise of the War Clause," Presidential Studies Quarterly, 30, no. 4 (December 2000): 770-776. David Gray Adler, "Virtues of the War Clause," Presidential Studies Quarterly 30, no. 4 (December 2000): 777-782.

** Louis Fisher, Congressional Abdication on War & Spending (College Station: Texas A&M University Press, 2000).