Does the Constitution require the President to obtain specific authorization from Congress before initiating hostilities?
Article II, Section 1, Clause 1, vests the entirety of the "executive Power" in a single person, the President of the United States.
By contrast, under Article I Congress enjoys only those legislative powers "herein granted." Scholars generally agree that this vesting of executive power confers upon the President broad authority to engage in foreign relations, including war, except in those areas in which the Constitution places authority in Congress.
The debate, then, is over the extent of Congress's constitutional authority to check the President in matters of war.
Article II, Section 2, expressly designates the President as "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." Presidential power advocates argue that this provision confers substantive constitutional power upon the executive branch to engage military forces in hostilities.
The presumption of presidential initiative in war established by these two provisions of Article II appears to be bolstered by other constitutional provisions.
Article I, Section 10, Clause 3, expressly prohibits states from "engag[ing] in War, unless actually invaded, or in such imminent Danger as will not admit of delay" unless they have obtained the "Consent of Congress."
By contrast, no such limitation on engagement in war by the President can be found in Article II. Although Article II expressly authorizes the President to engage in other foreign relations powers (such as the making of treaties and the appointment of ambassadors) only with the consent of Congress, it imposes no such check with respect to the use of military force.
Any power to initiate hostilities would be useless, of course, without the resources($$) necessary to engage in hostilities.
Under our Constitution, the power to provide those resources is unequivocally vested with Congress.
- Under Article I, it is Congress, not the President, that has the power to "lay and collect Taxes" and to "borrow Money," to make "Appropriations" and "provide for the common Defence," to "raise and support Armies" and "provide and maintain a Navy," and to "call[] forth the Militia." Thus the President may be Commander in Chief, but he has nothing to command except what Congress may provide. As a result of Congress's authority over the purse, the President is unable as a practical (if not constitutional) matter to engage in hostilities without Congress.
The War Powers Resolution has proven largely impotent in practice. President James Earl Carter did not consult with Congress before attempting to rescue Iranian hostages. President Ronald Reagan refused formal compliance (instead claiming "consistency") with the terms of the Resolution when he deployed American military forces in Lebanon, Grenada, Libya, and the Persian Gulf. Before Desert Storm, President George H.W. Bush publicly declared that he had constitutional power to initiate war unilaterally. Congress responded by authorizing him to use force. President William Jefferson Clinton followed these precedents in Somalia, Haiti, Bosnia, the Middle East, and Kosovo.
(instead claiming "consistency") with the terms of the Resolution when he deployed American military forces in Lebanon, Grenada, Libya, and the Persian Gulf. Before Desert Storm, President George H.W. Bush publicly declared that he had constitutional power to initiate war unilaterally. Congress responded by authorizing him to use force. President William Jefferson Clinton followed these precedents in Somalia, Haiti, Bosnia, the Middle East, and Kosovo. |
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