WAR POWERS (Update 2)

The war powers have generated two principal constitutional issues. The first concerns the locus of power to initiate hostilities. The Constitution gives Congress the power to decide whether the nation should go to war while leaving the President authority to "repel sudden attacks." Since the 1950s, however, Presidents have repeatedly claimed that their foreign affairs and commander-in-chief powers now permit them to initiate hostilities of any type, without Congress's approval.

This claimed presidential war power is defended on several grounds, none of which squares with orginal intent. First, it is said that, given their "limited objectives," today's military conflicts are not "wars"; instead, they are labeled "peacekeeping" operations, "police actions," "humanitarian interventions," "offensive military attacks," or "nation building," for which congressional approval is allegedly unnecessary. Second, it is asserted that the power to "repel sudden attacks" permits the executive to initiate so-called "defensive wars" to protect U.S. interests throughout the world. Third, it is argued that because Presidents have previously used military force without Congress's approval, the power to declare war now belongs to the executive; this ignores youngstown sheet and tube co. v. sawyer (1952), immigration and naturalization service v. chadha (1983), and new york v. united states (1992), which held that even long-standing practice cannot justify one branch's usurping the power of another. Finally, Presidents assert that they may use military force to implement the united nations charter and mutual defense pacts such as the North Atlantic Treaty Organization (NATO) and the South East Asia Treaty Organization (SEATO) even though these treaties commit the U.S. to respond only in accord with its "constitutional processes."

President william j. clinton has relied on these arguments in using military force without congressional approval. He unilaterally ordered missile strikes against Baghdad, Iraq, claiming this was an act of "self-defense" against an earlier attempt on the life of President george h. w. bush. Clinton used combat troops for "nation building" in Somalia without congressional sanction. He threatened to invade Haiti "to carry out the will of the United Nations," denying that Congress's permission was needed. He ordered air strikes in Bosnia and Kosovo as part of joint UN–NATO operations, without prior consent from Congress.

Lawsuits challenging presidential war-making have uniformly failed on justiciability grounds. Raines v. Byrd (1997) will make future challenges by members of Congress even more difficult. Raines suggested that as a matter of separation of powers, Congress lacks standing to challenge actions of the President because the role of Article III courts is to protect the "rights and liberties of individual citizens," not redress "injury to official authority or power."

The second major question involving the war powers is the extent to which they may support domestic legislation. This became a critical issue after world war i when Congress invoked its war powers to enact liquor prohibition, operate the nation's rail and communications systems, outlaw profiteering, prosecute strikers, suppress radicals, and censor the leftist press. The Supreme Court, though upholding most of these laws, agreed that war powers legislation is subject to judicial review. Since the expansion of the commerce clause in the late-1930s, Congress has had little need to use its war powers for domestic purposes. Yet to the extent united states v. lÓpez (1995) signals a narrowing of the commerce power, Congress may again be tempted to invoke its war powers in the domestic sphere. Should this occur, questions concerning the scope of these powers may return to center stage.

Christopher N. May
(2000)

(see also: Congress and Foreign Policy; Congressional Standing; Congressional War Powers; Presidential Powers; Senate and Foreign Policy; War, Foreign Affairs, and the Constitution.)

Bibliography

Ely, John Hart 1993 War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath. Princeton, N.J.: Princeton University Press.

Fisher, Louis 1995 Presidential War Power. Lawrence: University Press of Kansas.

May, Christopher N. 1989 In the Name of War: Judicial Review and the War Powers since 1918. Cambridge, Mass.: Harvard University Press.

U.S. Senate, Committee on Foreign Relations 1967 National Commitments. Senate Report No. 797, 90th Congress, 1st Session. Washington, D.C.: Government Printing Office.