Academic journal article
By Yoo, John
Harvard International Review , Vol. 28, No. 1
The Iraq is beginning to look like a rerun of the Vietnam War, and not just because critics are crying out that the United States has again fallen into a quagmire. War opponents argue that a wartime president has overstepped his constitutional bounds and that if Congress' constitutional role in deciding on war had been respected, the United States could have avoided trouble or at least have entered the war with broader popular support. According to Democratic Senator Edward Kennedy, the White House is improperly "abusing power, is excusing and authorizing torture, and is spying on American citizens." The terrorists would never have been harshly interrogated and intelligence surveillance never domestically expanded if only President George W. Bush had looked to Congress.
These war critics misread the Constitution's allocation of warmaking powers between the executive and legislative branches. Their interpretation is weakest where their case should be its strongest: who gets to decide whether to start a war. For much of the history of the nation, presidents and congresses have understood that the executive branch's constitutional authority includes the power to begin military hostilities abroad.
Energy in the Executive
During the last two centuries, neither the president nor Congress has ever acted under the belief that the Constitution requires a declaration of war before engaging in military hostilities abroad. Although the United States has used force abroad more than 100 times, it has declared war only five times: the War of 1812, the Mexican-American and Spanish-American wars, and World War I and II. Without declarations of war or any other congressional authorization, presidents have sent troops to oppose the Russian Revolution, intervene in Mexico, fight Chinese Communists in Korea, remove Manuel Noriega from power in Panama, and prevent human rights disasters in the Balkans. Other conflicts, such as both Persian Gulf Wars, received "authorization" from Congress but not declarations of war.
Critics of these conflicts want to upend long practice by appealing to an "original understanding" of the Constitution. But the text and structure of the Constitution, as well as its application over the last two centuries, confirm that the president can begin military hostilities without the approval of Congress. The Constitution does not establish a strict warmaking process because the Framers understood that war would require the speed, decisiveness, and secrecy that only the presidency could bring. "Energy in the executive," Alexander Hamilton argued in the Federalist Papers, "... is essential to the protection of the community against foreign attacks." He continued, "the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand."
Rather than imposing a fixed, step-by-step method for going to war, the Constitution allows the executive and legislative branches substantial flexibility in shaping the decision-making process for engaging in military hostilities. Given the increasing ability of rogue states to procure weapons of mass destruction (WMDs) and the rise of international terrorism, maintaining this flexibility is critical to preserving US national security.
The Declare War Clause
Critics of the President's war powers appeal to an understanding of declarations probably taught in most high school civics classes. It is perhaps common sense to equate the power to "declare" war with the power to "begin" or "commence" war.
The Constitution's Declare War Clause, however, should not be considered in isolation. In fact, the Constitution does not consistently use the word "declare" to mean "begin" or "initiate." For instance, one constitutional provision withdraws from states the power to "engage" in war. If "declare" meant "begin" or "make," the provision should have prohibited states from "declaring" war. …