War powers Summary

  • Last updated on November 11, 2022

The constitutional and political authority to protect the nation from its enemies and to place U.S. military forces abroad in hostile situations.

Article I, section 8, of the U.S. Constitution grants Congress the power to tax and spend for the common defense, to declare war, to raise and support armies and a navy, and to make rules for the government of such forces. The Constitution (Article II, section 2) makes the president commander in chief and gives him or her the power to make treaties and appoint ambassadors with the advice and consent of the Senate. Although Congress has the power to declare war, from the nation’s beginnings, presidents have claimed the authority to place military troops abroad and to wage war. The United States has been involved in only five declared wars: the War of 1812, the Mexican-American War (1846-1848), the Spanish-American War (1898), World War I (1917-1918), and World War II (1941-1945). Of those, only the War of 1812 was actively debated by Congress before a formal declaration of war was made. Nevertheless, military troops have been deployed more than two hundred times in various military actions abroad.

In Bas v. Tingy[case]Bas v. Tingy[Bas v. Tingy] (1800), the Supreme Court recognized that Congress could authorize war both by a formal declaration and by passing statutes that recognized a state of “limited,” “partial,” or “imperfect” conflict. A sharply divided court upheld President Abraham Lincoln’s blockade of Confederate ports in the Prize Cases[case]Prize Cases[Prize Cases] (1863), stating that while Lincoln did not have the power to initiate a war, he did have the authority to meet force with force without any special legislative authority. The Court gave further support to presidential power in the conduct of foreign affairs in United States v. Curtiss-Wright Export Corp.[case]Curtiss-Wright Export Corp., United States v.[Curtiss-Wright Export Corp., United States v.] (1936) and United States v. Belmont[case]Belmont, United States v.[Belmont, United States v.] (1937), asserting that the president was the sole representative of the nation in its foreign relations and affairs.Foreign affairs and foreign policy

The aftermath of World War II saw the rise of the United States to world power status and the development of permanent standing armies, factors not anticipated by the Framers of the Constitution. Beginning with the administration of President Franklin D. Roosevelt, presidents have argued for an expansive reading of the executive war powers to meet the needs of national securityNational security in the nuclear age. With few exceptions, the federal courts have been unwilling to involve themselves in the conflict between the legislative and executive branches over the exercise of war powers, calling the issue a political question and inappropriate for judicial resolution. Central to the war powers debate has been the legality and applicability of the War Powers Act of 1973War Powers Act of 1973, which sets time and communications requirements upon any military troop deployment by the president.

Further Reading
  • Dirck, Brian R. Waging War on Trial: A Handbook with Cases, Laws, and Documents. Santa Barbara, Calif.: ABC-Clio, 2003.
  • Ely, John Hart. War and Responsibility. Princeton, N.J.: Princeton University Press, 1993.
  • Fisher, Louis. Presidential War Power. Lawrence: University Press of Kansas, 1995.
  • Moore, James. Bush’s War for Reelection: Iraq, the White House, and the People. New York: John Wiley & Sons, 2004.
  • Ng, Wendy L. Japanese American Internment During World War II: A History and Reference Guide. Westport, Conn.: Greenwood Press, 2002. Comprehensive reference source on the internment years.
  • Woodward, Bob. Bush at War. New York: Simon & Schuster, 2002.

Conscription

Curtiss-Wright Export Corp., United States v.

Japanese American relocation

Military and the Court

National security

Presidential powers

Prize Cases

War and civil liberties

War Powers Act of 1973

Wartime seizure power

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