The Power to go to War

By Sam Huntington

We once more enter the discussion of who has the power to take the American people to war. On the one side of this argument, represented by nearly every president since Harry Truman, the president as chief executive and commander in chief of the Armed Forces of the United States has the power to act unilaterally with regard to imposing hostilities upon another nation. On the other side of this argument are those who argue that only Congress can declare war, only Congress can fund war, so that no president may commit this nation to war without the authority of the Congress.

It is easy for me to dismiss the first argument as one made by those who wish to retain their power. It is easy for me to support the second argument because it is ludicrous to imagine that a nation founded on the principle of checks and balances would so easily give over to the president such unlimited powers.

Dr. Robert Turner of the University of Virginia School of Law makes a case for the former argument, stating that it was the intent of the founding fathers to give the president massive power as this nation’s chief executive. According to Dr. Turner, Jefferson himself weighed in on this very topic:



“The Constitution has made the Executive the organ for managing our intercourse with foreign nation… From the origin of the present government to this day . . . it has been the uniform opinion and practice that the whole foreign fund was placed by the Legislature on the footing of a contingent fund, in which they undertake no specifications, but leave the whole to the discretion of the President.”

In addition, Chief Justice John Marshal (no friend of Jefferson) opined:

“By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion… [W]hatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive.”

Dr. Turner therefore concludes that the War Powers Act of 1973 is a fraud and an unconstitutional check upon the power of the President of the United States.

I believe the founding fathers were intentionally vague with respect to presidential power. Who then knew the scope of the presidency in outward years? I think the founding fathers were near-genius, but no one can see clearly into the future. By leaving this description vague, I believe the founding fathers trusted subsequent generations to work out their differences in a civilized manner.

As an aside, Mr. Washington himself was not altogether clear about what the framers of the Constitution intended in terms of presidential powers. He did not know what they meant by the words, “He shall have power, by and with the advice and consent of the Senate, to make treaties.” According to one historian, Washington tested this once by personally taking a matter before the senate and asking for their advice. He sat in the well of the Senate for two days and listened to them dickering back and forth—finally leaving and vowing never to return.

On the other hand, the War Powers Act of 1973 does appear to lend some specificity to the vague instruction of the U. S. Constitution, Section 2:

(a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicate by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.

(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Dr. Turner argues that the idea of an imperial president was a myth. I think he is very wrong about that—and we do not have to return to the days of Andrew Jackson to consider whether this is true. When a sitting president of the United States announces that he does not need the Congress in order to implement his agenda, then we are talking about a dangerously imperial presidency. I am talking about Barack Obama, in case you missed it.

Turner also proclaims the War Powers Act a fraud … but now let us consider that Lyndon Johnson took this country to war predicated on events that never actually happened. It may be true that Congress overwhelmingly supported Johnson at the beginning of the Vietnam War, but they did so because he lied to Congress about the circumstances of the so-called Tonkin Gulf incident. I must now say that Lyndon Johnson was a disgrace, and a supremely costly one.

Under these circumstances, when the American people finally came to the realization that they could not trust the federal government, Congress asserted its authority over presidential imperialism by enacting the War Powers Act. I approve of Congress as a check against an imperial presidency —even if it is limited to an Authorization for the Use of Military Force (AUMF).