Myth #25: The President Has To Ask Congress for Permission to Wage War Because The Constitution Gives The Congress The Authority to Declare War

This is the Twenty-Fifth in the series: 25 Myths of the U.S. Constitution.

Note: These articles later were updated and combined into my first book: 25 Myths of the United States Constitution.

By Douglas V. Gibbs

When President George W. Bush decided to invade Iraq, he decided to run the idea by Congress, just out of political courtesy. Congress concurred, and the war began. Later, George W. Bush was criticized for his decision, and accused of running an illegal war because Congress never declared war.

During the Obama presidency, President Barack Obama decided to send military personnel into Libya in 2011 in a joint effort with the United Nations and NATO allies to assist a rebellion against Libyan dictator Moammar Gadhafi. Obama initiated this military operation without congressional approval, without a declaration of war, and then stated he was not required to do so because it was "Kinetic Military Action." As with Bush, there was a significant opposition to Obama's decision, claiming that he had acted unconstitutionally by waging war without a blessing from Congress, and a declaration of war, which can only be declared by the United States Congress.

In both cases, the President of the United States was well within his authority to wage war. I am not condoning the actions, or suggesting Bush or Obama made good decisions. In fact, I think it is a wise move for the President to discuss any intentions to use the military with his military advisers, and Congress, before taking any military action of any kind. However, regardless of the wisdom of the decisions, in both cases, from a constitutional point of view, the Commander in Chief was indeed constitutionally authorized to wage war without a declaration of war, and even without conferring with Congress before making the decision.

Former Attorney General Ed Meese says on the subject that the President has the sole power to wage war under the Constitution.

“Protecting the nation requires a unity of purpose and faculty, and it cannot be devolved to a committee or Congress,” he explains.

The President has the authority to wage war, Meese went on to explain, because in times of crisis, no time should be wasted in legislative debate and maneuver. Thus, “the Constitution place[s] paramount authority for national security in a single executive.”

Under the Articles of Confederation, which was "the constitution before the constitution," Congress had the sole power to wage war. The executive, under the Articles, had little power as it was, and in the case of war, had no say in the matter whatsoever.

During the Constitutional Convention in 1787, the founders were searching for a more balanced approach to the question of war. Congress, being populated by representatives of the States, were often in their districts. Unlike the politicians of today, the representatives were statesmen who spent more time at home than in Washington. If Congress had the sole power to wage war, the time it would take to get the message to the Congressman, and then for that Congressman to travel back to Washington, would be far too long when faced with the need for a quick decision regarding the issue of war.

On August 17, 1787, the delegates debated heavily over war powers. The fear was that by giving the President the sole power to wage war a tyrannical president would use those powers in an abusive manner. Yet, to give Congress the sole power of waging war was inefficient, and had proven to be a poor decision under the Articles of Confederation.

A compromise was needed. The founders needed to create both an efficient system, yet one that used limiting principles, and a system of checks and balances, to protect the nation from a potentially tyrannical executive.

The power to wage war was granted to the President, and the power to declare war was vested in the Congress. The President, as a result of those debates, was granted the power to wage war whenever and wherever he deemed necessary. However, that war could only be formally declared by Congress. If Congress disagreed with the President's decision to wage war, we are reminded that the Congress has the power of the purse strings, and has the power to deny the President the funding to wage war. So, though the President has the power to wage war as he believes is necessary, that power is checked by the Congressional power of being able to defund the war.

If a President continues to wage war, even after congressional attempts to cut off funding, the Congress also has the power to impeach the President as well.

The decision to wage war often demands immediate action. In such a case, only the President has the ability to quickly step in and order the troops into battle to protect the national interest.

An added point is that both Barbary Wars, waged by Presidents Thomas Jefferson, and James Madison, were undeclared wars. If the President must wait for a declaration of war in order to wage war, then that would be to suggest that Thomas Jefferson, and the father of the Constitution James Madison, acted unconstitutionally to wage war against the Barbary Pirates. Did Jefferson and Madison go against the Constitution? Or were they waging war as Commander in Chief using the war powers granted by the Constitution?

The answer can be found in the constitutional debates on August 17, 1787.

-- Political Pistachio Conservative News and Commentary

The Truth About Executive Power in Times of Conflict - The Heritage Foundation

Madison's Notes on the Debates of the Constitutional Convention, August 17, 1787 - Avalon Project