Congress and Warmaking
A Wall Street Journal editorial contends that efforts by the Senate Foreign Relations Committee to derail President Bush’s planned “surge” in Iraq is not only “feckless” but “unconstitutional.”
As Commander-in-Chief, the President has the sole Constitutional authority to manage the war effort. Congress has two explicit war powers: It has the power to declare war, which in the case of Iraq it essentially did with its resolution of 2003. It also has the power to appropriate funds.
There is a long and unsettled debate over whether Congress can decide to defund specific military operations once it has created a standing Army. We lean toward those who believe it cannot, but the Founders surely didn’t imagine that Congress could start dictating when and where the 101st Airborne could be deployed once a war is under way.
Article I, Section 8 of the Constitution outlines the enumerated powers of the Legislative Branch. Those relating the military affairs:
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;
That section also contains the so-called Elastic Clause:
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
FindLaw’s annotation of the Supreme Court’s rulings on disputes arising from this section is, as usual, is excellent. It’s clear that the matter is quite complicated:
Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,1397 Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by Article I, Sec. 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.1398 Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland,1399 he listed the power ”to declare and conduct a war”1400 as one of the ”enumerated powers” from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War, the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex parte Milligan, Chief Justice Chase described the power to declare war as ”necessarily” extending ”to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.”1401 In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,1402 the Court referred to ”the war power” as a single unified power.1403
Footnotes hyperlinked in original. It strikes me as quite obvious, though, from even the plain text of the Constitution, that the Congress was expected to have substantial power about the conduct of war. Indeed, the idea that the chief branch of government was to have no say in the prosecution of a war once they declared it, is anathema to the idea of limited government with checks and balances.
Read the rest of the longish essay at FindLaw. There’s no doubt the issues are complicated. That’s the nature of the “invitation to struggle.” But, rather clearly, Congress has the right to have a say in the conduct of war.