In placing the power to declare war on Congress, the Framers recognized that in some instances the President may have to respond to sudden attacks, particularly when Congress is out of session. However, the full scope of the war power remained with Congress until Presidents decided to act on their own without seeking advance authority from lawmakers. In more recent decades, Presidents chose to seek authority not from Congress but from the U.N. Security Council and NATO allies.
An early dispute arose during the Quasi War from 1798 to 1800. President John Adams adhered to constitutional principles by seeking and obtaining numerous statutes to act militarily against France. In Talbot v. Seeman (1801), the Supreme Court spoke clearly by declaring that the “whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry.” Part of statutory policy authorized the President to seize vessels sailing to French ports. Yet President Adams chose to also direct American ships to capture vessels sailing to or from French ports. In Little v. Barreme (1804), the Supreme Court declared that statutory policy necessarily prevailed over inconsistent presidential orders and military operations.
Another important precedent arose when President James Polk chose to act unilaterally against Mexico in 1846 by ordering General Zachary Taylor to occupy disputed territory along the Texas-Mexico border. He told Congress that Mexico had exceeded the boundary of the United States and “invaded our territory and shed American blood upon the American soil.” He notified Congress that “war exists.” Lawmakers insisted that hostilities did not necessarily mean war. The latter step required express action by Congress. Polk’s action was censured by the House of Representatives in 1848 on the ground that the war had been “unnecessarily and unconstitutionally begun by the President of the United States.”
Subsequent wars were declared by Congress: in 1898 against Spain followed by World War I and World War II. Matters then changed fundamentally in constitutional terms when Presidents began to seek authority not from Congress but from outside bodies like the U.N. Security Council and NATO allies. In 1945, during debate over the United States joining the United Nations, President Truman sent a cable from Potsdam stating that all agreements involving U.S. troop commitments to the U.N. would first have to be approved by both houses of Congress. Aware of Senate debate on which branch controlled the sending of armed forces, Truman wired a note to Senator Kenneth McKellar (D-Texas) on July 27, 1945, making this pledge: “When any such agreement or agreements are negotiated it will be my purpose to ask the Congress for appropriate legislation to approve them.” That note was placed in the Congressional Record. Supported by that understanding, the Senate approved the U.N. Charter by a vote of 89 to 2.
The meaning of U.S. constitutional processes is set forth in Section 6 of the U.N. Participation Act of 1945. Without any ambiguity the statute requires that agreements for the use of military force “shall be subject to the approval of the Congress by appropriate Act or joint resolution.” With those safeguards in place to protect the Constitution, Truman on June 26, 1950 explained to the American public about the use of military force by North Korea against the Republic of Korea. The Security Council had ordered the withdrawal of the invading forces to positions north of the 38th parallel. At that point there was no commitment of U.S. military forces.
Yet on the following day he announced that North Korea had failed to cease hostilities and withdraw to the 38th parallel. He ordered U.S. air and sea forces to provide support to South Korean government troops. How could he act militarily in Korea under the U.N. umbrella without any congressional approval? With the Soviet Union absent, the Security Council voted 9 to zero to require North Korea to cease hostilities and withdraw their forces. It cannot be argued that the President’s constitutional powers vary with the presence or absence of Soviet delegates at the Security Council.
On June 29, 1950, Truman was asked at a press conference whether the country was at war. He responded: “We are not at war.” Asked whether it would be more correct to call the conflict “a police action under the United Nations,” he agreed: “That is exactly what it amounts to.” The U.N. exercised little real authority over the conduct of the war. Other than token support from some allies, it was an American war measured by troops, money, casualties, and deaths.
Federal and state courts had no difficulty in defining the use of military force in Korea as war. A federal district court noted in Weissman v. Metropolitan Life Ins. Co. (1953): “We doubt very much if there is any question in the minds of the majority of the people of this country that the conflict now raging in Korea can be anything but war.” During Senate hearings in June 1951, Secretary of State Acheson admitted the obvious: “In the usual sense of the word there is a war.”
Subsequent Presidents continued to use military force abroad without seeking prior authority from Congress. With the ill-fated Bay of Pigs, President John F. Kennedy supported a unilateral invasion of Cuba, leading to a highly risky confrontation with the Soviet Union after Cuba sought and received nuclear weapons to defend itself against the United States. President Ronald Reagan became involved in the Iran-Contra affair, directly against statutory policy.
On February 19, 1998, during a visit to Tennessee State University, Secretary of State Madeleine Albright was asked how President Bill Clinton could order military force against Iraq after opposing American policy in Vietnam. She replied: “We are talking about using military force, but we are not talking about a war. That is an important distinction.” Through her analysis, the Framers’ decision to keep the war power with Congress could be nullified simply by defining presidential actions as military force rather than war.
As with Truman, President Clinton saw no need to seek congressional approval for his military actions abroad. Instead, he sought support from the Security Council and NATO allies. He used military force in Iraq, Somalia, Haiti, Bosnia, Afghanistan, Sudan and Kosovo without once receiving statutory support for his initiatives. After a peace agreement with Bosnia was reached, he announced that “America’s role will not be about fighting a war.” With full inconsistency he added: “Now the war is over,” describing the conflict in Bosnia as “this terrible war.”
On June 26, 1993, he ordered air strikes against Iraq in response to an attempted assassination of former President George H. W. Bush during a visit to Kuwait. In a message to Congress he said the attack was ordered “in the exercise of our inherent right of self-defense as recognized in Article 51 of the U.N. Charter.” In September 1996 he ordered the launching of more cruise missiles against Iraq in response to an attack by Iraqi forces against the Kurdish-controlled city of Irbil in northern Iraq. Do Presidents have independent authority to unleash military attacks against foreign leaders who abuse their own people? The list of eligible countries would be quite lengthy.
Clinton inherited a number of problems in Somalia. Civil war and famine reached high levels. On December 3, 1992, the Security Council adopted Resolution 794 to authorize the use of peacekeeping troops to address the deteriorating crisis. Given conditions in that region, U.S. troops were likely to become involved in hostilities. The Justice Department had advised Bush that he possessed constitutional authority to commit U.S. troops to Somalia without specific prior congressional authority. With Clinton as President, Congress debated the need for authorizing legislation. Senator Majority Leader George Mitchell (D-Maine) supported a Senate joint resolution to authorize the deployment of American troops to Somalia, pointing out that Security Council resolutions “are no substitute for congressional authorization.” The resolution passed by voice vote but the two chambers could not agree on compromise language.
In 1996, Clinton sent cruise missiles into Afghanistan to attack paramilitary units and into Sudan to destroy a pharmaceutical factory. At a news conference on October 8, 1998, he announced that he had decided the United States would vote to give NATO authority to conduct military strikes against Serbia if President Milosevic “continues to defy the international community.” He would decide, not Congress. His foreign policy advisers went to Capitol Hill to consult with lawmakers but not to obtain their approval.
In October 1998, the Clinton administration threatened the Serbs with air strikes, this time because of Serb attacks on ethnic Albanians in Kosovo. Congress was given no formal role in the use of military force. The war against Yugoslavia began the following March without any congressional support. Clinton explained his policy on the introduction of ground troops. He would “fully consult” with Congress but that did not mean seeking statutory authority.
President Barack Obama followed the same practice of using military force abroad by seeking support not from Congress but from the Security Council and NATO allies. On March 21, 2011, he explained that the United States took military action in Libya to enforce U.N. Security Council Resolution 1973, anticipating that operations would conclude “in a matter of days and not of weeks.” Military force lasted seven months, thereby exceeding the 60-90 day limit of the War Powers Resolution.
A memo by the Office of Legal Counsel on April 1, 2011, concluded that the use of force against Libya did not constitute “war” because of the limited “nature, scope, and duration” of the military actions. By early June, however, having exceeded the 60-day limit of the War Powers Resolution, Obama now requested another memo from OLC stating that “hostilities” did not exist. Interestingly, OLC declined to provide that memo. Jeh Johnson, General Counsel for the Defense Department, also refused to provide support for Obama.
It is argued at times that when a President receives a Security Council resolution providing support for military action there is compliance with international law. However, nothing in that procedure complies with the U.S. Constitution. Through the treaty process (as with the U.N. Charter and NATO) the Senate may not transfer the Article I authority of Congress to international and regional organizations. From Truman forward, Presidents have engaged in numerous unilateral military operations without seeking congressional authority. Acting independently, President Donald Trump bombed Syria after its use of nerve gas, assisted Saudi Arabia with its military actions in Yemen, and claimed the right to use military force against Iraq if it bombed Saudi oil facilities. In February 2021, President Joe Biden unilaterally bombed a target in Syria as a military response against Iran.
Congress may stand against the President or stand behind him, but it should not stand aside as it has done from Truman forward, occasionally complaining about presidential usurpation. The Framers valued deliberation because it strengthens the democratic process and lessens the chance of political mistakes and constitutional violations. In Youngstown Co. v. Sawyer (1952), Justice Robert H. Jackson urged us to hold fast to essentials. With all the “defects, delays and inconveniences” of political activity, we have “discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by parliamentary deliberations.”
Louis Fisher is visiting scholar at the William and Mary Law School. From 1970 to 2010 he served at the Library of Congress as senior specialist in separation of power at Congressional Research Service and specialist in constitutional law at the Law Library of Congress. He testified before congressional committees more than fifty times on a range of constitutional issues. Author of 27 books and more than 600 articles, many of his articles and congressional testimony are posted on his personal webpage at http://www.loufisher.org