In-depth briefing

The power to declare war

President Obama ordered the U.S. military to attack Libya without congressional approval. Was this legal?

Who has the power to declare war?
Congress does, according to the U.S. Constitution. Article 1, Section 8 unambiguously states that “Congress shall have power to...declare War.” The president is designated commander in chief, with the authority to direct the military. James Madison declared the War Powers Clause to be the most important in the Constitution because history had shown that “the executive is the branch of power most interested in war,” and therefore must be tempered by a deliberative Congress.

How many times has Congress declared war?
Just five: Against England in 1812, Mexico in 1846, Spain in 1898, Germany and Austria-Hungary in 1917, and Japan and Germany at the start of World War II. The U.S., of course, has been involved in far more than five military conflicts over the past two centuries; in fact, presidents have ordered the military into action in global trouble spots more than 100 times. From the beginning, presidents have argued that they have authority to take military action to protect vital national interests, and that congressional approval is not required if that action isn’t a full-fledged “war.” World War II represented the last time Congress formally declared war. Since then, “the War Powers Clause of the Constitution has become a nullity, if not a quaint relic,” wrote John Dean, a former counselor to Richard Nixon.

How did that happen?
During the Cold War, the definition of “war” changed. In 1947, as the Soviet threat and fear of a nuclear confrontation loomed large, the federal government created the office of the Secretary of Defense, the Joint Chiefs of Staff, the National Security Council, and the CIA. Each of these reported to the president, greatly enlarging the executive branch’s authority over national security. The tipping point came when communist-controlled North Korea invaded South Korea in 1950. President Truman wanted to go to war, but was unsure that Congress would go along. So he pushed the United Nations to act, and then argued that the U.S. was bound under the U.N. treaty to join in the effort. During the ensuing debate, Truman said his power to start a war without congressional authorization had been “repeatedly recognized by Congress and the [U.S. Supreme] Court.” When asked for a specific court decision, he snapped, “I haven’t got it with me just now.”

Was Truman telling the truth?
No. Nonetheless, a new precedent was set. Since then, presidents have sent American forces into combat many times without a formal declaration of war. Rather than call such action “war,” the U.S.—and other nations—has come to favor euphemisms such as “police action,” “operation,” “use of force,” and, in the case of President Obama’s recent attack on Libya, “kinetic military action.” War, says Georgetown University professor Barry Carter, has “become a very subjective concept.”

Did Congress ever fight back?
It did. In 1973, with the undeclared Vietnam War dragging on into its eighth year, Congress passed the War Powers Resolution to prevent future Vietnams. This law authorized the president to respond with military action to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” But if the conflict lasted more than 60 days, the law required the president to get congressional approval. A livid President Nixon vetoed the resolution, denouncing its proponents for “knife-in-the-back disloyalty.” But Congress overrode the veto.

What was the effect of that law?
Very little. Virtually every president since Nixon has found a way to evade, stretch, or ignore the War Powers Resolution. President Reagan’s interventions in Lebanon and Grenada, President George H.W. Bush’s invasion of Panama, and President Bill Clinton’s interventions in Somalia and Bosnia all utilized very loose interpretations of the requirement of “a national emergency.” In deciding to use U.S. forces to set up “no fly” and “no drive” zones in Libya, President Obama said that if Libya fell into chaos, it “could ignite wider instability in the Middle East, with dangerous consequences to the national security interests of the United States.” Even some Democratic congressmen called this a violation of the law’s intent, but talk of challenging Obama’s authority quickly died down.
So who really has the power to declare war?
In practice, the president does. Legal scholars continue to debate the fine points of the Constitution and the War Powers Resolution, but as Harvard Law School professor Jack Goldsmith recently pointed out, “constitutional practice” carries far more legal weight than theoretical debate. Congress has never truly challenged a president’s authority to unilaterally order military action. Therefore, that authority has hardened into precedent, whatever the Founders’ original intent. President George H.W. Bush captured the attitude of every modern president when he launched the first Gulf War, obtaining congressional approval only after the decision to attack had been made. “I didn’t have to get permission from some old goat in Congress,” Bush said, “to kick Saddam Hussein out of Kuwait.”

Obama’s change of heart
When he was running for president in 2007, former constitutional law professor Barack Obama said that President George W. Bush had no legal authority to launch the Iraq war. “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Obama said. His views have apparently evolved since he was elected, given his decision last month to order an attack on Libya without congressional approval. Obama justified his about-face by claiming the assault on Muammar al-Qaddafi’s forces wasn’t a war but a humanitarian mission carried out to enforce a U.N. resolution. With that, Obama joined a select group of presidents, among them Jefferson, Lincoln, and Nixon, who came in as opponents of expanded executive power, but changed their tunes once ensconced in the White House. As historian Arthur Schlesinger has noted, “Power always looks more responsible from within than from without.”


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