Congressional Power to Declare War and Raise Armies

Cautious of granting the president excessive control over the military, the Framers of the Constitution allocated several war powers to Congress. The enumerated powers include the power to declare war and raise armies.

Congress's powers to declare war, raise armies, and its duty to fund armies all act as checks and balances concerning the president's war powers. Throughout history, conflicts have arisen between the legislative and executive branches regarding the scope of their respective powers.

This article explains Congress's war powers and their interplay with the president's war powers. It begins by outlining and describing Congress's war powers. It then provides the historical background of the powers and concludes by describing their development.

Article I, Section 8 of the Constitution

Article I, Section 8 of the Constitution of the United States enumerates Congress's powers. It grants the following powers to Congress regarding war:

"The Congress shall have Power . . .

[10] To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations

[11] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water

[12] To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years

[13] To provide and maintain a Navy

[14] To make Rules for the Government and Regulation of the land and naval Forces

[15] To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions

[16] To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress."

Not only does Congress have the enumerated powers listed above, but it also relies upon several other powers with regard to war. These include the following:

• Article I, Section 8, Clause 1: The taxing and spending powers

• Article I, Section 8, Clause 18: The necessary and proper clause

The U.S. Constitution grants Congress many war-related powers. Throughout American history, Congress and the president have offered conflicting interpretations of these and other powers.

The following sections describe some of these conflicts and relevant U.S. Supreme Court cases interpreting them.

The Power to Declare War Explained

Supreme Court Justice Joseph Story wrote in his Commentaries on the Constitution that "[I]t should therefore be difficult in a republic to declare war; but not to make peace." As the Stennis Center notes, the Framers gave Congress the sole power to declare war because they wanted the people's will to decide when to enter such a conflict.

If the Framers had given the president the sole power to declare war, a single person could have decided to enter the United States into a military conflict. Instead, they vested it in Congress, comprised of senators and representatives from each state. This ensured that the public could more easily hold their government accountable for entering a war and continuing to fight it.

Since the American Revolution, the United States has engaged in 108 military operations. However, Congress has only issued 11 formal declarations of war, the last of which was in 1942. Given the discrepancy between wars fought and declarations issued, there is clearly some conflict between a president's use of military force and Congress's war powers.

Of course, the United States has fought several wars since 1942. How has it done so without Congress issuing declarations of war? In some cases, Congress authorized a president's military action after they took it. In other cases, Congress provided a different type of authorization (joint congressional resolutions) that did not amount to a formal declaration of war but had essentially the same effect.

For specific examples, refer to the section on the Development of Congress's War Powers below.

The Power to Raise Armies Explained

The Constitution gives Congress the power to raise armies and the responsibility to fund them. The ability to raise and fund armies is an essential check on the president's commander-in-chief powers.

Congress approves a military budget for the Department of Defense every year. The president can veto the budget, like any other legislation.

Article II of the Constitution contains the commander-in-chief clause. It gives the president authority to conduct military operations once a war begins. Once the United States enters a war, the president determines where to deploy troops and the strategies to employ against enemy combatants.

If the president controlled the military's funding, they would essentially have endless resources to continue fighting. However, because Congress controls funding, the will of the governed plays a role in any war effort.

If a war loses public support, constituents can have their voice heard. If Congress reduces spending on war efforts, it may prevent the president from conducting war.

Historical Background of Congress's War Powers

In 1787, the Continental Congress convened a group of delegates from each state to discuss amendments to the Articles of Confederation. The states had ratified the Articles in 1781 amid the Revolutionary War. However, after its victory over the British in 1783, America was threatening to implode.

One of the major weaknesses of early America was its weak federal government. For example, Congress could not raise funds on its own. Instead, it relied on the states' approval of treaties and trade regulations. Infighting between the states led to an ineffective national government.

The statesmen invited to the Convention were supposed to amend the Articles. However, soon after the Framers arrived, they shirked their duty and began creating an entirely new form of government.

By the end of the summer of 1787, the Framers proposed the Constitution of the United States to the states. Ratified in 1788, the Constitution created a federal democratic republic and a strong national government. The federal government is comprised of three branches of government:

• The legislative branch (i.e., Congress) is tasked with lawmaking in the United States. It is comprised of the House of Representatives and the Senate.

• The executive branch consists of the president. They must protect and uphold the Constitution and faithfully execute the laws. The president is also commander in chief of the U.S. military.

• The judicial branch consists of the Supreme Court and the lower federal courts. It interprets the laws of the United States.

The Constitution enumerates each branch's specific powers and limitations. Each branch has a series of checks and balances on the other branches. These act as safeguards, ensuring no single branch becomes too powerful.

Before submitting the Constitution to the states for ratification, the drafters discussed and debated each part. Much of the debate centered on the division of power between Congress and the president. Even after the Constitution's ratification, debates about the proper distribution of war powers continued.

According to the Constitution Annotated, there was little debate about vesting the commander-in-chief powers in a single person. The Framers drew on their experience during the American Revolution. They had seen General George Washington effectively lead the Continental Army to victory. Vesting the power in a single person allowed for quick decisions necessary during war.

However, the Framers were also wary of vesting too much power in a single branch of government. Their experience with the English monarchy had taught them that power could corrupt. Therefore, they vested Congress with the power to declare war, fund armies, and other controls over military affairs.

The Framers intended this separation of powers to check the president's power to wage war. Their plan to limit the president's power over military affairs did not go exactly as planned. The following section describes several instances where the legislature's and executive's powers conflicted.

Development of Congress's War Powers

The Supreme Court's early decisions regarding war powers generally favored congressional control. The decisions emphasized Congress's power regarding when to go to war and the extent of wars.

The balance of power between the executive and legislature has ebbed and flowed. At some points in history, like the Civil War and Vietnam, the executive branch's powers seemed to supersede Congress's. The president often took unilateral action, and Congress authorized it afterward.

At other times, the president and Congress have been in lockstep. For example, the day after the attack on Pearl Harbor, Congress issued a declaration of war against Japan at the president's request. Following the September 11, 2001, terrorist attack, Congress authorized President George W. Bush to use whatever means he felt necessary to combat terrorism.

This section provides examples of the legislative and executive branches' war powers throughout history. The conflicts and Supreme Court cases interpreting them clarify the scope of the branches' respective war powers.

The Civil War

Most historians consider the 1861 attack on Fort Sumter as the beginning of the Civil War. After the attack, President Abraham Lincoln issued a proclamation to blockade Southern ports. He ordered the U.S. Navy to seize any ships that violated the blockade, and the government would keep the vessels as "prizes."

When Lincoln issued the blockade, Congress had not declared war on the Confederacy. Congress eventually authorized Lincoln's blockade. But, it never officially declared war against the South.

In 1862, the Supreme Court decided a series of cases involving seized ships. One of the issues involved was whether the president could institute the blockade without a declaration of war.

The Court noted that only Congress can declare a national or foreign war. But the Constitution also does not allow Congress to declare war against individual states. Therefore, Congress could not declare war against the Southern states that had seceded.

The Court then noted that the Constitution does not give the president the power to declare war. However, the Constitution allows them to use the military and militias for the country's common defense. The Court noted that the president has this ability whether the attack comes from a foreign country or rebellious states.

It noted further that the president is "not only authorized but bound to resist force by force." Although the president cannot initiate a war, they do not have to wait for congressional authorization to respond to war on the country's doorstep. Accordingly, the president had the authority to label the attackers as belligerents. He could then determine the degree of force necessary to respond to the threat.

The Court allowed President Lincoln to enforce the blockade without congressional authorization. The so-called Prize Cases stand for the notion that the president can respond to sudden attacks on their own initiative.

However, the cases left open the question of other circumstances that allow the president to initiate military operations without congressional approval. As you will see from later examples, there is still a conflict between a president's unilateral action and congressional authorization.

World War I and the Draft

Congress passed the Selective Service Act of 1917 to expand the U.S. military through conscription. The Supreme Court ruled on several challenges to the draft in 1918. The challenges included the following:

• That the draft violated states' constitutional rights to maintain a well-regulated militia

• Whether Congress had the Constitutional authority to enact a draft

• That the draft violated the Thirteenth Amendment's protection against involuntary servitude

The Supreme Court rejected all three arguments and upheld the Act's constitutionality. Regarding states' rights to maintain militias, the Court held that those rights were subordinate to the federal government's power to raise and maintain armies. It also held that Congress's power to raise armies differed from its ability to call on militias, and the Constitution did not limit it from raising armies as it saw fit.

Regarding the argument that the draft constituted involuntary servitude, the Court analogized it to civic duties people owe to their respective states, like jury duty and serving in a state militia. The Court noted that the draft did not introduce a "novel doctrine" concerning those state services and did not prohibit states from continuing to enforce them.

World War II

On December 7, 1941, Japan launched a surprise attack on Pearl Harbor in Hawaii. On December 8, 1941, Congress unanimously approved President Franklin D. Roosevelt's request to declare war against Japan. The Declaration of War Against Japan authorized President Roosevelt to wage war against Japan.

The Declaration of War Against Japan was a direct and formal declaration of war. It served as the template for declarations of war against Germany and Italy, which Roosevelt signed on December 11, 1941. Congress last issued formal declarations of war in June 1942 (against Bulgaria, Hungary, and Romania).

The Korean War

Perhaps the most important Supreme Court case regarding the interplay of the branches' war powers took place during the Korean War.

North Korea attacked South Korea in 1950. President Harry S. Truman sent U.S. troops to Korea in response. Congress did not declare war. Moreover, it never provided authorization of any kind regarding the Korean War. However, it continued to provide funding for the military operations there.

In 1951, President Truman attempted to seize private U.S. steel mills. He did so to prevent a nationwide labor strike from derailing the war efforts. The steel mill owners filed lawsuits challenging the action.

The Supreme Court ruled that Truman could not seize the steel mills. It held the seizures did not fall within the president's commander in chief powers, and Congress had not authorized him to do so. For more information, read What are the President's Powers as Commander in Chief?

The Gulf of Tonkin Resolution and the Vietnam War

In 1964, Congress issued the Gulf of Tonkin Resolution. Congress issued the Resolution in response to President Lyndon B. Johnson's request following an attack on the Navy in the Gulf of Tonkin.

The Resolution allowed President Johnson "to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression . . .". It ultimately became the basis for the United States' involvement in the Vietnam War.

In 1965, President Johnson deployed the military to Vietnam. Congress never officially declared war against North Vietnam.

In 1971, Congress repealed the Gulf of Tonkin Resolution. However, the real end of the war for the United States came due to Congress's refusal to fund the war effort. The lack of funding caused President Richard Nixon to withdraw the military.

The War Powers Resolution of 1973

As the Vietnam War progressed, it became increasingly unpopular across the United States. Additionally, there were concerns that the president had assumed more war powers than the Framers had intended.

In response, Congress passed The War Powers Resolution of 1973 ("the War Powers Act"). It restricts the president's ability to deploy the military unilaterally. It states that the president may deploy forces in the following situations:

• When Congress issues a declaration of war

• When specific statutory authorization allows the president to do so

• In the event of "a national emergency created by attack upon the United States, its territories or possessions, or its armed forces."

It also requires the president to consult with Congress about every military deployment. They must also issue a report within 48 hours of any action. Furthermore, the president has to terminate the use of force within 60 days unless Congress says otherwise. Congress may also pass a resolution requiring the president to remove military forces.

President Nixon vetoed the War Powers Act. He argued that it would undermine the country's ability to respond to international crises. He also said it would "undercut the ability of the United States to act as an effective influence for peace."

Congress ultimately overrode President Nixon's veto. The War Powers Act remains an active federal law.

Authorization for Use of Military Force

Following the terrorist attack on September 11, 2001, Congress issued the Authorization for Use of Military Force (AUMF).

The AUMF was a sweeping declaration that gave President George W. Bush the authority to use "all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons."

The AUMF also gave President Bush broad discretion to use the force and means he felt necessary to fight terrorism. For more information about President Bush's actions and the resulting Supreme Court cases that interpret them, read FindLaw's article on the commander-in-chief clause.