United States Constitution, Art I, Sec 8
“The Congress shall have the power…
- To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;
- To declare war, grant letters of marque and reprisal, and 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 calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
- 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, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;”
United States Constitution, Art II, Sec 2
- “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…”
Experience
The Founding Fathers spent a lot of time thinking about war. After all, war was a part of their life experience. Not only did they survive the American Revolution, but many fought in the French and Indian War before (part of the Seven Years War, the first world-wide war). In fact, the first shots of that first world war were fired by a twenty-two year-old American officer in Western Pennsylvania on his first assignment, Lieutenant Colonel George Washington. And there continued to be conflict on the frontier with the independent nations of Native Americans.
One of the reasons for writing the Constitution in the first place was to more efficiently defend the new nation. The Articles of Confederation, the prior “organizing document”, didn’t have a provision for a Navy, and more importantly, the capacity to raise the funds to create one. And while there was a provision for a National Army, there still wasn’t funding. So the individual states were ultimately responsible for National defense.
The Constitution put the responsibility for creating and funding both a National Army and Navy on the United States Congress. It also gave Congress the power to pay for state militias (the National Guard), that could be nationalized, but generally maintained under state command. But most importantly, the Constitution of the United States gave the power to declare war to the Congress, not the executive.
The President
The President is the Commander-in-Chief of all of various forms of military: Army, Navy, Marines, Air Force, Space Force, and the National Guards of the several states when Federalized. The Founding Fathers were clear: Congress creates, Congress declares, the President executes. George Washington as President, took personal command of the State Militia to put down an insurrection in Western Pennsylvania, the Whiskey Rebellion in 1794. He was authorized to do so by Congress in the “Militia Act of 1792”.
There was historic tension between the Congress and the President throughout history. In the Civil War, Lincoln took the actions he thought necessary, with Congress getting pulled along. The classic example was the Emancipation Proclamation, what today we would call an Executive Order. Lincoln only freed slaves in those states still in rebellion, because his authority only extended to those areas in insurrection. The states that remained in the Union but maintained slavery (Missouri, Kentucky, Maryland, Delaware and the parts of Louisiana and Tennessee under Union control) were not “in” insurrection, and the Order did not apply to them.
Congress
And while Woodrow Wilson staked his Presidency on the treaty ending World War I, guaranteeing American support for the new League of Nations, the United States Senate refused to ratify it. The United States never participated in the League, perhaps dooming it to failure, and World War II.
After the Civil War, and World War I, Congress moved to reclaim war powers away from the Presidency. However, the threat and expanse of World War II caused the President to gain greater powers over the military than ever before.
But the real change in the balance of power between Congress and the President came after World War II. With the advent of nuclear missiles, that could launch a devastating strike within minutes, the process of declaring war seemed cumbersome and probably irrelevant. Instead, Congress gave the executive long-term “use of force” powers. The last “declared war” was World War II, but there remains a long list of conflicts, still with Congressional approval: Korea, Vietnam, the Persian Gulf, and Kosovo. And even more actions were justified after the attacks of 9-11; in Iraq and Syria, and America’s longest war (two decades) in Afghanistan.
Why War?
The term “war” is used a lot today. We are “at war” with organized narcotics traffickers, now called “narco-terrorists” in order to “fit” under the use of force provisions passed by Congress after 9-11. The United States is committing arbitrary actions on the high seas, destroying a second presumed narcotics trafficking boat just the other day. What Congress might have defined as piracy back in 1788, now is an ongoing US policy.
We are also “at war” with undocumented migrants, using some of the same reasoning and executive authority that allowed for the internment of Americans of Japanese descent during World War II. There’s a “war on crime”, so much so, that the National Guard is being Federalized to patrol the streets in Los Angeles, Washington DC, and now Memphis. (Even though the Federalized National Guard cannot, by law, do policing actions such as arrests). And, after the assassination of conservative figure Charlie Kirk by a disturbed individual, the executive branch is ready to “declare war” (a power they do not have) on the vocal opposition to their actions.
War Department
“War” allows for the President to exercise the nearly unbridled authority of the Commander-in- Chief. There are only two checks on that power: Congress “clawing back” their authority, or the Supreme Court restraining Presidential overreach. And, if past actions are prologue, don’t expect either to happen very soon.
And one final point: war by definition is violent. This week we speak constantly of “dialing back” the violence in American life. But if the Executive is constantly using the language of war and conflict, it’s difficult to conclude that anything other than more violence will be the outcome.
America has a long way to go, to get beyond our current sad state. Using “war” as an excuse for action (or the name for a department of government) won’t help.
