Afghanistan, War Powers, and the Constitution

World War II. It was the last time the United States officially declared war.

As Gerald Astor writes in Presidents at War, “Congress has declared war only five times—the War of 1812, the Mexican War in 1846, the Spanish-American War in 1898, World War I in 1917, and World War II in 1941. Yet, the armed forces have been in harm's way close to two hundred times" (Astor, 2006).

When most people hear this they’re usually surprised, because in popular culture at least, most of these conflicts are clearly referred to as "wars." But, in fact, they were “military actions,” because they took place without an official declaration of war from Congress, as required by the United States Constitution. According to the Constitution, Congress has the power "To declare war…."; "To raise and support armies"; and "To provide and maintain a navy." (Article I, Section 8).

However, the Constitution also states that “The president shall be the commander in chief of the army and the navy of the United States" (Article II, Section 2). From the earliest days of our nation, this has led to a conflict between Congress and the president on how to interpret these separate but overlapping provisions. Our current presence in Afghanistan, and the president’s recent decision to increase troop levels there, is just another example.

As commander-in-chief, the president clearly has the power to conduct war. But, what is also clear is that the Framers wanted Congress to make decisions about going to war.

James Madison wrote that "The Constitution supposes, what the history of all governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care, vested the question of war in the legislature" (Adler, 2000). Despite this, though (as indicated above), there has been little congressional involvement in most United States military actions, as they are driven primarily by centralized presidential decisions.

This shift was made possible largely by a Supreme Court case in 1863, known as The Prize Cases, which dealt with President Lincoln’s decision during the Civil War to blockade southern ports and seize vessels bound for those ports (Lincoln made this "act of war" prior to any official declaration of war from Congress, so the decision was challenged as unconstitutional).

The Court found that Lincoln had the power to act because, “when states waged war against the United States government, the president was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name." In other words, in exceptional circumstances, it is the president’s constitutional responsibility to act militarily, whether Congress is involved or not. This opened the door for succeeding presidents to claim “exceptional circumstances” and pursue military actions on their own (and the Court has remained silent on this question since).

Although the Court has found that a president can conduct military actions without Congress, it has also indicated that how the president conducts those military actions is subject to Congress. But, the extent of that congressional control differs according to different decisions. Over the past 70 years there have been four major cases—Youngstown Sheet & Tube Co. v. Sawyer (1952), Hamdan v. Rumsfeld (2006), Ex parte Quirin (1942), and Korematsu v. United States (1944)—that have focused on more clearly defining the war powers of the president and Congress.

In Youngstown and Hamdan, the Court insisted on an expanded congressional role to curb presidential “wartime” decision making, while in Quirin and Korematsu it affirmed the expanded presidential role as defined by The Prize Cases. So, the question about the balance of power between the two branches remains.

This issue may very well be tested again with President Obama’s Afghanistan policy. The additional troops he’s requesting for this military action will require additional funding from Congress. Does Congress have the constitutional authority to refuse the funding of additional troops? Does the president have the constitutional authority to send them if Congress refuses to fund them? How does the question of funding military actions fit into the previous decisions of the Court?

Like most Constitutional debates, this one includes profound and deep questions about our system of government and how best it should function. Unlike many Constitutional debates, however, this is a debate that has imminent life and death consequences.