Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered “to make war.” 1 Although there were solitary suggestions that the power should be vested in the President alone,2 in the Senate alone,3 or in the President and the Senate,4 the limited notes of the proceedings indicate that the Convention’s sentiment was that the potentially momentous consequences of initiating armed hostilities should require involvement by the President and both Houses of Congress.5 In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual;6 in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of Executive efficiency nor to entrust the matter solely to a branch so close to popular passions.7

The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to “declare war.” 8 Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to ensure that the President was empowered to repel sudden attacks9 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.10

An early controversy revolved about the issue of the President’s powers and the necessity of congressional action when hostilities are initiated against the United States rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Thomas Jefferson sent a squadron of frigates to the Mediterranean to protect American ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war.11 Alexander Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war, but that when another nation made war upon the United States, the United States was already in a state of war and no declaration by Congress was needed.12 Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli “and also to cause to be done all such other acts of precaution or hostility as the state of war will justify.” 13 But Congress, apparently accepting Hamilton’s view, did not pass a formal declaration of war.14

Sixty years later, the Supreme Court sustained the blockade of the Southern ports that Lincoln instituted in April 1861 at a time when Congress was not in session.15 Congress subsequently ratified Lincoln’s action,16 so that it was unnecessary for the Court to consider the constitutional basis of the President’s action in the absence of congressional authorization, but the Court in its 1863 decision The Prizes Cases nonetheless approved, 5-4, the blockade order as an exercise of Presidential power alone, on the ground that a state of war was a fact.17 The Court reasoned: “The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.” 18 The minority challenged this doctrine on the ground that while the President could unquestionably adopt such measures as the laws permitted for the enforcement of order against insurgency, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences ensuing from a state of war.19

A unanimous Court adopted the position of the majority in the Prizes Case a few years later in The Protector when it became necessary to ascertain the exact dates on which the war began and ended. In The Protector, Chief Justice Salmon P. Chase reasoned that the Court must “refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second.” 20

These cases settled whether a state of war could exist without a formal declaration by Congress. When hostile action is taken against the Nation or against its citizens or commerce, the President may resort to force in response. But whether the Constitution empowers the President to commit troops abroad to further national interests absent a declaration of war or specific congressional authorization short of such a declaration has been controversial.21

, 87 Stat. 134, and subsequently, over the President’s veto, Congress enacted the War Powers Resolution, providing a framework for the assertion of congressional and presidential powers in the use of military force. Pub. L. No. 93–148, 87 Stat. 555 (1973), 50 U.S.C. §§ 1541–1548. See ArtII.S.2.C.1.10 1.10 Use of Troops Overseas and Congressional Authorization. The Supreme Court has not addressed this issue22 and lower courts have generally not adjudicated the matter on “political question” grounds.23 Absent judicial guidance, Congress and the President have had to reach accommodations with each other.24

Footnotes

1

2 Records of the Federal Convention of 1787, at 313 (Max Farrand ed., 1937).

2

Mr. Pierce Butler favored “vesting the power in the President, who will have all the requisite qualities, and will not make war but when the Nation will support it.” Id. at 318.

3

Mr. Charles Pinkney thought the House was too numerous for such deliberations but that the Senate would be more capable of a proper resolution and more acquainted with foreign affairs. Additionally, with the states equally represented in the Senate, the interests of all would be safeguarded. Id.

4

Alexander Hamilton’s plan provided that the President was “to make war or peace, with the advice of the senate.” 1 id. at 300.

5

2 id. at 318–319. In the Federalist No. 69 (Alexander Hamilton), Hamilton notes: “[T]he President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the confederacy; while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies,—all which, by the Constitution under consideration, would appertain to the legislature.” See also id. at No. 26, 164–171. Cf. C. Berdahl, War Powers of the Executive in the United States ch. V (1921).

6

The Federalist No. 69 (Alexander Hamilton). During the Convention, Elbridge Gerry remarked that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” 2 Records of the Federal Convention of 1787, at 318 (Max Farrand ed., 1937).

7

The Articles of Confederation vested powers with regard to foreign relations in the Congress.

8

2 Records of the Federal Convention of 1787, at 318–19 (Max Farrand ed., 1937).

9

Jointly introducing the amendment to substitute “declare” for “make,” Madison and Gerry noted the change would “leav[e] to the Executive the power to repel sudden attacks.” Id. at 318.

10

Connecticut originally voted against the amendment to substitute “declare” for “make” but “on the remark by Mr. King that ‘make’ war might be understood to ‘conduct’ it which was an Executive function, Mr. Ellsworth gave up his opposition, and the vote of Connecticut was changed.” Id. at 319. The contemporary and subsequent judicial interpretation was to the understanding set out in the text. Cf. Talbot v. Seeman, 5 U.S. (1 Cr.) 1, 28 (1801) (Chief Justice John Marshall stated: “The whole powers of war being, by the Constitution of the United States, vested in congress, the acts of that body alone can be resorted to as our guides in this inquiry.” ); Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866).

11

Messages and Papers of the Presidents 326, 327 (J. Richardson ed., 1896).

12

7 Works of Alexander Hamilton 746–747 (J. Hamilton ed., 1851).

13

2 Stat. 129, 130 (1802).

14

Congress need not declare war in the all-out sense; it may provide for a limited war which, it may be, the 1802 statute recognized. Cf. Bas v. Tingy, 4 U.S. (4 Dall.) 37 (1800).

15

Prize Cases, 67 U.S. (2 Bl.) 635 (1863).

16

12 Stat. 326 (1861).

17

Prize Cases, 67 U.S. (2 Bl.) 635 (1863).

18

Id. at 669.

19

Id. at 682.

20

The Protector, 79 U.S. (12 Wall.) 700, 702 (1872).

21

The controversy, not susceptible of definitive resolution in any event, was stilled for the moment, when in 1973 Congress set a cut-off date for United States military activities in Indochina, Pub. L. No.

93–52, 108

, 87 Stat. 134, and subsequently, over the President’s veto, Congress enacted the War Powers Resolution, providing a framework for the assertion of congressional and presidential powers in the use of military force. Pub. L. No. 93–148, 87 Stat. 555 (1973), 50 U.S.C. §§ 1541–1548. See ArtII.S.2.C.1.10 1.10 Use of Troops Overseas and Congressional Authorization.

22

In Atlee v. Richardson, 411 U.S. 911 (1973), aff’g 347 F. Supp. 689 (E.D. Pa., 1982), the Court summarily affirmed a three-judge court’s dismissal of a suit challenging the constitutionality of United States activities in Vietnam on political question grounds. The action constituted approval on the merits of the dismissal, but it did not necessarily approve the lower court’s grounds. See also Massachusetts v. Laird, 400 U.S. 886 (1970) (denying leave to file complaint); Holtzman v. Schlesinger, 414 U.S. 1304, 1316, 1321 (1973) (actions of individual justices on motions for stays). The Court has consistently denied certiorari in cases on its discretionary docket concerning this issue.

23

E.g., Velvel v. Johnson, 287 F. Supp. 846 (D. Kan. 1968), aff’d sub nom. Velvel v. Nixon, 415 F.2d 236 (10th Cir. 1969), cert. denied, 396 U.S. 1042 (1970); Luftig v. McNamara, 252 F. Supp. 819 (D.D.C. 1966), aff’d 373 F.2d 664 (D.C. Cir. 1967), cert. denied, 389 U.S. 945 (1968); Mora v. McNamara, 387 F.2d 862 (D.C. Cir. 1967), cert. denied, 389 U.S. 934 (1968); Orlando v. Laird, 317 F. Supp. 1013 (E.D.N.Y. 1970), and Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970), consolidated and aff’d, 443 F.2d 1039 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971); Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973).

During the 1980s, based on the political question doctrine and certain other discretionary doctrines, courts were not receptive to suits, many by Members of Congress, seeking a declaration of the President’s powers. See, e.g., Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982) (military aid to El Salvador), aff’d, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984); Conyers v. Reagan, 578 F. Supp. 324 (D.D.C. 1984) (invasion of Grenada), dismissed as moot, 765 F.2d 1124 (D.C. Cir. 1985); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (reflagging and military escort operation in Persian Gulf), aff’d. No. 87-5426 (D.C. Cir. 1988); Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990) (U.S. Saudia Arabia/Persian Gulf deployment).

24

For further discussion, see ArtII.S2.C1.1.1 Historical Background on Commander in Chief Clause to ArtII.S2.C1.1.19 Military Commissions.