Download Presidential War Making Powers

4.8: Presidential War
Making Powers
AP U. S. Government
Congress shall have the power to…
 To declare war;
The Constitution
Article I,
Section 8
 To raise and support armies
 To provide and maintain a navy;
 To oversee the rules for the military;
 To provide for calling forth the militia
to…suppress insurrections and repel
invasions;
 To provide for organizing, arming, and
disciplining, and governing the militia
The Constitution
Article II,
Section 2
The President shall be Commander in
Chief of the Army and Navy of the
United States, and of the Militia of the
several States, when called into the
actual Service of the United States
Commander in
Chief
“The President shall be Commander in
Chief of the Army and Navy of the United
States, and of the Militia of the several
States, when called into the actual
Service of the United States”
---Article I Section 2
Hamilton,
Federalist 69
 “The 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, gall which, by the
Constitution under consideration, would appertain to
the legislature.”
Why put the war power
in Congress’ hands?
Why?
“The power of declaring war…is in its nature and
effects so critical and calamitous, that it requires the
utmost deliberation, and the successive review of all of
the councils of the nations. War, in its best estate,
never fails to impose upon the people the most
burthensome taxes and personal sufferings. It is always
injurious, and sometimes subversive of the great
commercial, manufacturing, and agricultural interests.
Nay, it always involves the prosperity, and not
unfrequently the existence, of a nation. It is sometimes
fatal to public liberty itself…”
--Supreme Court Justice Joseph Story (Fisher p. 4)
Why put the power in
the president’s hands?
Hamilton,
Federalist 70
“Decision, activity, secrecy, and dispatch
will generally characterize the
proceedings of one man in a much more
eminent degree than the proceedings of
any greater number; and in proportion as
the number is increased, these qualities
will be diminished.”
War Powers Resolution
(1973)
November 7, 1973 – in response to President
Nixon’s secret bombing and subsequent invasion
of Cambodia and the wider war in Vietnam
The War
Powers
Resolution
The president shall “in every possible instance”
consult with Congress before committing troops to
hostilities and consult regularly after
Requires presidential notification of Congress
within 48 hours of committing forces to hostile
situations overseas
The president is required to bring troops home
within 60-90 days unless Congress approves more
time
1. President must consult w/
Congress before introducing
armed forces into hostilities
The War
Powers
Resolution
2. Consult with Congress
regularly until troops removed
3. If war not declared, President
must submit report to
Congress within 48 hours of
troop deployment
4. President must remove troops
after 60 days (+30 days for
withdrawal) if Congress has
not declared war
It is the purpose of this joint resolution to fulfill the intent of the
framers of the Constitution of the United States and insure that the
collective judgment of both the Congress and the President will apply
to the introduction of United States Armed Forces into hostilities, or
into situations where imminent involvement in hostilities is clearly
indicate by the circumstances, and to the continued use of such
forces in hostilities or in such situations.
War Powers
Resolution
The constitutional powers of the President as Commander-in-Chief to
introduce United States Armed Forces into hostilities, or into
situations where imminent involvement in hostilities is clearly
indicated by the circumstances, are exercised only pursuant to (1) a
declaration of war, (2) specific statutory authorization, or (3) a
national emergency created by attack upon the United States, its
territories or possessions, or its armed forces.
War Powers Resolution
Examples of
Presidential WarMaking Powers
World War II
Yesterday, December 7, 1941 - a date which will live in infamy - the United States
of America was suddenly and deliberately attacked by naval and air forces of
the Empire of Japan.
…As Commander-in-Chief of the Army and Navy I have directed that all measures
be taken for our defense, that always will our whole nation remember the
character of the onslaught against us.
December 8,
1941
…I believe that I interpret the will of the Congress and of the people when I assert
that we will not only defend ourselves to the uttermost but will make it very
certain that this form of treachery shall never again endanger us.
…I ask that the Congress declare that since the unprovoked and dastardly attack
by Japan on Sunday, December 7, 1941, a state of war has existed between the
United States and the Japanese Empire.
President Franklin D. Roosevelt
War Message to Congress
JOINT RESOLUTION Declaring that a state of war exists between the Imperial
Government of Japan and the Government and the people of the United States and
making provisions to prosecute the same.
Whereas the Imperial Government of Japan has committed unprovoked acts of war
against the Government and the people of the United States of America:
December 8,
1941
Therefore be it Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled, That the state of war between the United
States and the Imperial Government of Japan which has thus been thrust upon the
United States is hereby formally declared; and the President is hereby authorized and
directed to employ the entire naval and military forces of the United States and the
resources of the Government to carry on war against the Imperial Government of
Japan; and, to bring the conflict to a successful termination, all of the resources of
the country are hereby pledged by the Congress of the United States.
Congressional Declaration of War
House 388-1
Senate 82-0
Vietnam
Last night I announced to the American people that the North Vietnamese regime
had conducted further deliberate attacks against U.S. naval vessels operating in
international waters….
After consultation with the leaders of both parties in the Congress, I further
announced a decision to ask the Congress for a resolution expressing the unity
and determination of the United States in supporting freedom and in protecting
peace in southeast Asia.
August 5,
1964
As President of the United States I have concluded that I should now ask the
Congress, on its part, to join in affirming the national determination that all such
attacks will be met, and that the United States will continue in its basic policy of
assisting the free nations of the area to defend their freedom.
As I have repeatedly made clear, the United States intends no rashness, and seeks
no wider war. We must make it clear to all that the United States is united in its
determination to bring about the end of Communist subversion and aggression
in the area. We seek the full and effective restoration of the international
agreements signed in Geneva in 1954, with respect to South Vietnam, and again
in Geneva in 1962, with respect to Laos...
President Lyndon B. Johnson
Statement on the Gulf of Tonkin Incident
Resolved by the Senate and House of Representatives of the United States of America in
Congress assembled,
That the Congress approves and supports the determination of the President, as
Commander in Chief, to take all necessary measures to repel any armed attack against
the forces of the United States and to prevent further aggression.
August 7, 1964
…the United States is, therefore, prepared, as the President determines, to take all
necessary steps, including the use of armed force, to assist any member or protocol
state of the Southeast Asia Collective Defense Treaty requesting assistance in defense
of its freedom.
…This resolution shall expire when the President shall determine that the peace and
security of the area is reasonably assured by international conditions created by action
of the United Nations or otherwise, except that it may be terminated earlier by
concurrent resolution of the Congress.
Gulf of Tonkin Resolution
House 416-0
Senate 88-2
Iraq
I know Members of Congress agree that Saddam Hussein's regime is still a threat to peace, as it was
when you passed the Iraq Liberation Act of 1998. I also know members of the United Nations are
angry that this regime continues to thumb its nose at the world, defying at least 16 U.N. Security
Council resolutions adopted between 1990 and 1999 that require Iraq to disarm and give up
weapons of mass destruction, to stop threatening its neighbors and to stop oppressing the Iraqi
people. America intends to lead the way to make certain that the Saddam Hussein regime is not
able to threaten anyone in the world with the world's most devastating weapons.
September 4,
2002
Doing nothing in the face of a grave threat to the world is not an option. At an appropriate time and
after consultations with the leadership, I will seek congressional support for U.S. action to do
whatever is necessary to deal with the threat posed by Saddam Hussein's regime. The Congress
can play an important role in building a national consensus for action.
My Administration remains committed to the regime change policy enshrined in the Iraq Liberation
Act. The world must address how the Iraqi people can be liberated from the bondage in which the
regime holds them and realize a better future for their children.
President George W. Bush
Letter to Speaker Dennis Hastert
This joint resolution may be cited as the `Authorization for Use of Military Force
Against Iraq Resolution of 2002'.
October 10,
2002
…The President is authorized to use the Armed Forces of the United States as he
determines to be necessary and appropriate in order to-- (1) defend the national
security of the United States against the continuing threat posed by Iraq; and (2)
enforce all relevant United Nations Security Council resolutions regarding Iraq.
…In connection with the exercise of the authority granted in subsection (a) to use
force the President shall, prior to such exercise or as soon thereafter as may be
feasible, but no later than 48 hours after exercising such authority, make
available to the Speaker of the House of Representatives and the President pro
tempore of the Senate his determination
…Consistent with section 8(a)(1) of the War Powers Resolution, the Congress
declares that this section is intended to constitute specific statutory
authorization within the meaning of section 5(b) of the War Powers Resolution.
Joint Resolution of Congress
House 296-133
Senate 77-23
 President George H. W. Bush:
 “I don’t have to get permission from some old goat in
the United States Congress to kick Saddam Hussein
out of Kuwait.”
How do we
think of the
president’s war
powers today?
 President Bill Clinton:
 “I think I have a big responsibility to appropriately
consult with Members of Congress in both parties—
whenever we are in the process of making a decision
which might lead to the use of force. But I think that,
clearly, the Constitution leaves the president, for
good and sufficient reasons, the ultimate decision
making authority.”
What
changed?
 Gradual expansion of doctrine of “protecting
Americans abroad”
 General growth of Presidential prominence in
the press and elections
 Curtiss-Wright case
 Korea and Alternative sources of legitimacy
(UN, NATO)
 Precedents
 Military technology and the Cold War
 Secret agencies
 Congressional abdication of responsibility
In what ways can
Congress fight back?
Why is it difficult for Congress to do so?
What other constitutional powers does Congress possess
that can limit the president’s war-making ability?
Other
Congressional
Powers
 Passing laws
 Controlling appropriations (funding)
 Confirmation of nominees
 Impeachment
 Treaty ratification
 Hearings and investigations
Consulting requirement:
War Powers
Resolution
 “The President in every possible instance
shall consult with Congress before
introducing US Armed Forces into hostilities
or into situations where imminent
involvement in hostilities is clearly indicated
by the circumstances, and after every such
introduction shall consult regularly with the
Congress…”
Reporting requirement
 In the absence of a declaration of war, when
troops are introduced
War Powers
Resolution
 1) into hostilities or imminent hostilities
 2) into the territory of a foreign nation armed
for combat
 3) In numbers which substantially enlarge the
forces in a nation or region…
Automatic removal
War Powers
Resolution
 Within 60 days after the report is submitted
or required to be submitted, the President
shall terminate any use of United States
armed forces unless the Congress
 Declares war
 Has extended by law the 60 day period
 Is physically unable to meet
Post War Powers
Resolution Actions
Reagan
Bush
Clinton
Post WPR
Presidential
Behavior
 Common behaviors:
 Relying on United Nations as source of legitimacy
 Denying Congress has a role in initiating conflict
 Moving troops first, to apply pressure to Congress
Supreme Court
Weighs In
War Powers:
The
Supreme
Court
Weighs In
The Prize Cases
(1862)
Korematsu v. United
States (1944)
Youngstown Sheet &
Tube Co. v. Sawyer
(1951)
Hamdan v. Rumsfeld
(2005)
 Key Issue: Did President Lincoln
act within his presidential powers
when he blockaded southern ports
without a declaration of war?
The Prize
Cases (1862)
 Court’s Decision: The President
had the power to act because a state
of war existed.
 Discussion Question: Does this
case expand or limit the war powers
of the President and/or Congress?
 Key Issue: Did the Present, with the
support of Congress, have the power
to restrict the rights of Japanese
Americans by relocating them to
internment camps?
Korematsu
v. U.S. (1944)
 Court’s Decision: The
government’s limitation of rights
was justified during a time
of“emergency and peril.”
 Discussion Question: Does
this case expand or limit the war
powers of the President and/or
Congress?
Youngstown
Sheet Co. v.
Sawyer (1951)
 Key Issue: Did President Truman
have the power to seize & operate
steel mills to avert a strike during the
Korean War?
 Court’s Decision: The President did
not have the authority to seize private
property without a congressional
statute.
 Discussion Question: Does this case
expand or limit the war powers of the
President and/or Congress?
 Key Issues: 1) Were the military
commissions set up by the Bush
administration to try detainees at
Guantanamo Bay constitutional?
Hamdan
v.
Rumsfeld
(2005)
 2) Can Congress pass legislation
preventing the Supreme Court from
hearing the case?
 Court’s Decision: Neither an act
of Congress nor the inherent powers
of the President authorize military
commissions that do not comply
with US and international laws.
 Discussion Question: Does this
case expand or limit the war powers
of the President and/or Congress?
Questions to consider
Have the lines between the president's role as commanderin-chief and Congress's power to declare war been
blurred?
Is the president too able to commit American troops to
conflict without congressional approval or oversight?
Is the War Powers Resolution effective or even
constitutional?
How do the president’s war-making powers and
congressional oversight like the War Powers Resolution
illustrate the concept of checks and balances?
How might a divided government make this issue more
contentious?