Tag Archives: Foreign Policy

Arguments in Favor of Congressional War Powers

The argument for Congressional War Powers (Congressionalists):

Nothing in the Constitution expressly empowers the president to start an offensive war. The framers explicitly gave the power “to declare war; grant letters of Marque and Reprisal, and make Rules concerning Captures on land and Water” (Article I, Section 8).

The latter clauses refer to lower-level hostilities that do not account for an all out war. The Letters of Marque and Reprisal clause–marque being the French equivalent of reprisal–can be best understood as a single phrase. At the time of the Founding, the people, through Congress, authorized holders of letters of marque and reprisal to engage in hostile actions against enemies of the state. Essentially, only the people and the states through their representation can authorize any military adventure. Period.

In Federalist No. 69 Hamilton writes that the president’s war powers are inferior to that of the British king, “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 regulation of fleets and armies; all which, by the constitution would appertain to the legislature.”

In the Madison’s Convention notes, him and Elbridge Gerry “moved to insert “make” war, leaving to the executive the power to REPEL sudden attacks.”

It doesn’t say anything about starting an offensive war.

Moreover, in his notes, Madison records Mr. Gerry’s rebuttal to Pierce Butler’s assertion that war making powers should be vested in the executive’s hands alone. Gerry states that he “never expected to hear in a republic a motion to empower the executive alone to declare war.”

George Mason was against “giving the power of war to the executive, because not safely to be trusted with it, or to the Senate, because not so constructed as to be entitled to it. He was for clogging rather than facilitating war, but for facilitating peace. He preferred “declare” to “make.”

Admittedly, the notes on this debate are sparse to say the least.

Next will be the arguments of the Presidentialist camp. Also extremely interesting.


– Will Ricciardella



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Arguments in Favor of Presidential War Powers

Arguments for presidential war powers (Presidentialists), in no particular order:

1. The President in Article II, Section 1, Clause 1 retains sole authority over the executive branch and gives broad powers with respect to foreign relations, including war, unless otherwise specified (powers granted to Congress in Article I).

2. Context and the time of ratification must be considered. Congress seldom met at our founding and the future of the nation and it’s survival was tenuous at best. As Madison writes in his notes, Charles Pinckney “opposed the vesting [of] this power in the legislature. Its proceedings were too slow. It would meet but once a year. The House of Representatives would be too numerous for such deliberations…”

Essentially, why disperse war making powers amongst a body that seldom meets and as cumbersome as Congress. The decision for war would be dispersed among the many members of Congress, posing a great risk from foreign invasion for the newly formed and vulnerable nation.

3. The Constitution distinguishes between “declaring” war and “engaging” in (Article I, Section 10, Clause 3) or “levying” war (Article III, Section 3, Clause 1). Why would the framers who were so careful with their words, distinguish between the different terms? If only Congress can initiate a war, it would superfluous to add this.

4. They (the Framers) changed the term “make war” to “declare war.” This would insinuate that the declaration of war is a statutory arrangement changing the legal status of allied nations and resident aliens.

5. John Adams (Quasi-war, 1798), Thomas Jefferson (First Barbary War, 1802), and James Madison himself (Second Barbary War 1815) engaged in military hostilities without an explicit declaration of war. Instead an authorization of force was used, clearly creating a distinction between ‘authorization’ and a ‘declaration.’

6. The U.S. has only declared war five times in it’s history: The War of 1812, The Mexican-American War of 1846, the Spanish-American War of 1898, World War I and World War II. The latter four merely declared the existence of an already existing war. Moreover, those declarations were accompanied by authorizations of the use of force making a clear distinction between the two.

7. The Commander-in-Chief clause vests the power of commanding the military to the executive and the executive alone giving him/her “war making” powers as distinguishable from legal declaration for statutory purposes.

8. The founders were well aware of the long British practice of undeclared wars. Meaning that the last minute change from “make” to “declare” is quite significant.

9. Congress has the ultimate check to the President’s war making power, that is the power of the purse. It would behoove every president that wishes to make war to first consult congress seeking a declaration or an aforementioned authorization before deploying the military (Bush sought out authorization before engaging in hostilities in the Middle East). If the people find a war unnecessary, protracted or appalling, Congress need only to pass a bill defunding said war (This is exactly what ended the War in Vietnam.)

There are more arguments that distinguish declarations from making actual war contained in Grotius’ “The Law of War and Peace” (1646) that served as an influence on the Framers and shaped their idea of legal war powers.

When all is said and done however, Congress has virtually the last say in almost everything the federal government does through the power of the purse. It seems many abdicate this duty from Congress by consistently blaming the executive of engaging in “illegal wars” rather than pressuring Congress to end them.


– Will Ricciardella

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