The Presidency 49

The following is an extract from Lesson 3 of Trust and the Presidency. You can read the entire lesson here:

To recap from Lesson 1, other than for national self-defense, the President’s war powers were quite constrained. Congress, not the President, was to decide if and when to declare war, if and when to suppress domestic insurrections.  Congress was to decide whether to create an army, how the army and navy would be funded, whether to call up the state militia, and how the army, navy, and the state militia would be organized.  These stipulations are spelled out in the Constitution and are cited below.

The Commander in Chief Clause in Article 2, Section 2 says “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”

The Calling Forth Clause in Article I, Section 8 reserves to Congress the power “to declare war,[and] to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions…”

Article I, Section 8 also reserves to Congress the power “to define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; … [to] make Rules concerning Captures on Land and Water; to raise and support Armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain a Navy; to make Rules for the Government and Regulation of the land and naval Forces; 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…”

War powers are consequential.  Wars can cost us our limbs, our lives, and the lives of our loved ones.  They can cause shortages, divert resources, raise taxes, raise inflation rates, and increase debt.  Wars well won, as in World War I and World War II, can increase our global standing. Wars poorly chosen and poorly fought can also reduce our standing in the world, earning us tenacious enemies willing to try to strike us on our own soil.

Over time, the presidency has gained new authorities to initiate war, engage in hostilities short of war, and direct the deployment of military forces for a wide variety of purposes.  Congress and the President have enacted 11 separate formal declarations of war against foreign nations in five different wars.1 By contrast, between 1789 and now, only five countries and four organizations have attacked U.S. territory.2  Congress and the President have also enacted 70 authorizations for the use of force (AUMF) without formal declarations of war.3 These have been directed against nations, non-state organizations such as Al-Qaeda, pirates, slavers, and drug lords.  Several of these authorizations have been quite broad in scope (allowing operations in entire regions or the entire planet) and open-ended, subject only to presidential determinations that the intended objectives had been achieved.4

  1. See Congressional Research Service (2020). Defense Primer: Legal Authorities for the Use of Military Forces.
  2. The five countries include Great Britain, 1812-15, Mexico, 1846-48 and 1918, Germany, 1916-18 and 1939-45, Italy, 1941-45, and Japan, 1941-45. The four groups include the Villistas, 1916, the Escobars, 1929, Al-Qaeda, 1993 and 2001, and the so-called Islamic State, 2015 and 2016.  See U.S._territory
  3. Congressional Research Service (2020). A handful of these authorizations were for domestic deployments under the 1807 Insurrection Act.
  4. See details of key authorizations in Congressional Research Service (2014). Declarations of War and Authorizations for the Use of Military Force: Historical Background and Legal Implications.

Image: Thomas Jefferson.

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