Who Said Anything About ‘War Powers’?

Geoffrey Perret

Since the founding of the Republic there have been 12 major wars in 12 generations, and the ultimate result has been a steady rolling back of the ideas that guided the men who wrote the Constitution. On almost any reading it is clear that the framers expected Congress, not the president, to be the dominant element in American government.

The presidency is mentioned in only a few brief paragraphs in the Constitution and is accorded less space than the role and responsibilities of the judiciary. It is Congress that declares war, raises military forces and finds the money for them. The role of the president is to be “commander in chief of the army and the navy of the United States and of the militia of the several States, when called into the actual service of the United States.”

What the framers had before them was the example of the British monarch as commander in chief, someone ready if need be to lead armies in the field. No one doubted that Washington could do that, and in the Whiskey Rebellion of 1794 that is exactly what he did.

When John Adams became president, he appointed Washington to serve as commander in chief during the quasi-war with France. The Senate confirmed Washington’s appointment. And then in 1812, a British army closed in on the District of Columbia.

If anyone knew what the Constitution required it was President James Madison, one of its principal authors. In 1814, the bookish Madison strapped on a sword, mounted a war steed and led the Army out to stop the British at Bladensburg, Md. Two British musket volleys and a bayonet charge put Madison and his soldiers to flight. No one thereafter assumed that the president would act as his own field commander.


When the next war came — with Mexico in 1846 — it was the handiwork of President James K. Polk. Well aware that he could not get Congress to declare war on a country that had not attacked the United States, Polk hoped to provoke an incident on the disputed American-Mexican border. Taking the bait, the Mexican government declared that “a defensive war” now existed between Mexico and the United States. It was anything but defensive. The Mexican commander on the Rio Grande ordered his troops to cross the river. They ambushed a troop of American dragoons, killing 69 of them. After that, Polk got his declaration of war.

Polk’s involvement in the strategy of the war and the way he chose military commanders by political rather than military criteria amounted to a new conception of the role of commander in chief. However, the real turning point came with Abraham Lincoln. Until the Civil War there was a widely-held belief on Capitol Hill that Congress framed the issues of war and peace. The president’s role was to implement the policy that Congress established.

Lincoln ignored all that. He instituted the draft, which was almost certainly illegal; went to war without a declaration of war; and shelved habeas corpus. He justified his actions by claiming to possess special “war powers,” a unique kind of authority rooted in the emergency of war.

The Constitution contains not a single reference to presidential war powers. But every wartime president since Lincoln has claimed these powers.

In 1898 William McKinley went to war with Spain because public opinion, Congress and the press believed, wrongly, that the Spanish had sunk the battleship Maine in Havana harbor. Congress accordingly declared war. In World War I, Woodrow Wilson waited nearly three years, until Germany resorted to unlimited submarine warfare, before seeking a declaration of war.

Franklin Roosevelt made no secret of the fact that he was itching to take on Hitler, but it was the Japanese attack on Pearl Harbor, followed a few days later by a German declaration of war on the United States, that got the country into World War II – with an official declaration from Congress.

When war broke out in Korea in June of 1950, the United States had 500 military advisers in South Korea, but that did not create an obligation to defend the country. There was little likelihood that Congress would declare war on North Korea, so Truman did not ask it to. He simply shoveled combat troops and aircraft into South Korea, only to find he could not win his undeclared war.

In Vietnam, Lyndon Johnson sought a functional equivalent to a traditional declaration of war by asking for a Congressional resolution to sanction American intervention. Congress later realized it had been duped and in 1973 passed the War Powers Act to curb presidential war-making. The act requires the president to confer with Congress before going to war. Yet since this legislation was passed, every president has ignored it.

George Herbert Walker Bush asked for and got a Congressional resolution authorizing armed intervention in Kuwait. The current President Bush got a similar resolution for the invasions of Iraq and Afghanistan.

Since Lincoln’s day the war powers of the presidency have been pumped up like a balloon. It is current American policy that the president has the power to order the kidnapping, torture, indefinite secret imprisonment and even the death of almost anyone, anywhere. Can this really be what the Founding Fathers intended?