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US Presidents and Congress Have Long Clashed Over War Powers

January 15, 2020 in History

By Dave Roos

Congress has the constitutional power to “declare war,” but U.S. presidents have long initiated military action without it.

The United States Constitution is clear about which branch of government has the power to declare war. In Article I, Section 8, the Constitution states that “Congress shall have the power… To declare war.” But that simple statement has left room for interpretation, and centuries of American presidents have claimed the right to launch military attacks without congressional approval.

“The history of war powers has been a history of disputes between branches about what the meaning of ‘war’ is, what the meaning of Congress’s authority over war is, and what kinds of actions do and don’t count as war,” says Mariah Zeisberg, associate professor of law and politics at the University of Michigan, and author of War Powers: The Politics of Constitutional Authority.

When the Constitution was being written and debated, the framers clearly wanted to break from the British political tradition of investing all war powers in the executive (the king), but they also knew that legislatures could be dangerously slow to respond to immediate military threats. So instead of granting Congress the power to “make” war, as was first proposed, founders like James Madison changed the language to “declare” war.

Madison was no fan of executive overreach—“the Executive is the branch of power most interested in war and most prone to it,” he wrote to Thomas Jefferson—but that change of wording in Article I, Section 8 of the Constitution implied that the president, as commander in chief (Article II, Section 2), retained certain powers to “make” war, if not declare it himself.

In the early days of the United States, the understanding was that the president could order the military to defend the country against an attack, but that any sustained military action would require congressional approval.

Presidential First Moves in Mexican-American War and Civil War

That constitutional compact didn’t take long to break down. In 1846, President James Polk ordered the U.S. army to occupy territory in the newly annexed state of Texas. Congress recognized Polk’s move as a de facto declaration of war with Mexico, which claimed the territory as its own and vowed to defend it against an American “invasion.”

Congress ultimately granted Polk an official declaration of war, but the House of Representatives later censured the president for …read more


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