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EXECUTIVE ASSUMPTION OF THE WAR-MAKING POWER

By ALBERT H. PUTNEY, Professor of Constitutional Law, National University

Law School

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One of the most remarkable chapters of the constitutional history of the United States has been the gradual passing of the war-making power, at least in so far as war can be made with the military and naval forces already authorized, from the hands of the legislative department of the Government into those of the executive.

One of the most important questions which to-day confronts the citizens of the United States, one which must affect their future to an extent which is only just beginning to be appreciated, is whether such transfer of power must be accepted as permanent.

War is defined as the condition where a State attempts to maintain its rights either actual or alleged by force. War is declared whenever a State employs force against another State except in self-defense.

The question as to where the power to declare war (in the broad sense in which the term is used in international law) resides was the last of the great constitutional questions to arise in the United States. For several generations, however much men might dispute upon many questions of constitutional construction, here was one question upon which there was a practically universal agreement. As late as the close of the nineteenth century no one could have foreseen the condition which to-day exists.

From the first inauguration of President Washington down to the third

year of the twentieth century the Congress of the United States maintained the exclusiveness of its rights to declare war, or to authorize offensive warlike acts even though limited in their scope; and the validity of the claims of Congress were recognized by the acquiescence of the executive department and frequently by an express acknowledgment in some presidential message.

During the twentieth century, however, there has been a gradual increasing encroachment upon this power by the executive department, until to-day it, in effect, claims the right to make war, or, what under the Constitution amounts to the same thing, to authorize warlike acts abroad, without the consent of Congress, to the extent to which such warfare can be carried on by the military forces under the command of the President.

The vital question involved is whether the old or the new method of exercising the war-making power is the one authorized under the United States Constitution.

In determining this question recourse must be had to the debates in the Federal Constitutional Convention, to the decisions of the Supreme Court of the United States, and to the past practice of the legislative and executive departments.

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The Constitution of the United States (Art. I, sec. 8, clause 2) provides, that: “The Congress shall have power

to declare war.”

The Supreme Court of the United States has declared, in the most unequivocal language, that this power of Congress is an exclusive one:

By the Constitution, Congress alone has the power to declare a national or foreign war

The Constitution confers on the President the whole executive power

He is Commander in Chief of the Army and Navy of the United States

He has no power to initiate or declare a war either against a foreign nation or a domestic state.'

The Supreme Court of the United States has also given the broadest possible interpretation to the meaning of the term “war," holding it to embrace all cases where a country attempts to maintain its rights by the employment of force:

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. It is not denied, nor in the course of the argument has it been denied, that Čongress may authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.?

It may, I believe, be safely laid down that every contention by force between two nations, in external matters under the authority of their respective governments, is not only war, but public war.3

These early decisions of the Supreme Court have never been overruled, or even modified, by that court. In its definition of the scope to be given the term “war" the Supreme Court was merely asserting a well-recognized principle of international law.

Armed intervention consists in threatened or actual force, employed or to be employed by one State in regulating or determining the conduct or aflairs of another. Such an employment of force is virtually a war, and must be justified or condemned upon the same general principle as other wars."

It is, of course, needless to say that other countries have the same right and power to declare war against the United States that we have against them, and therefore our country may be forced into a war without a formal declaration by Congress. Even in such cases it is customary for Congress to make a formal declaration that a state of war exists.

The Spanish Government on April 21, recognized the United States resolution of April 20, 1898, demanding "that the Government of Spain at once relinquish its authority and government in the island of Cuba and withdraw its land and naval forces from Cuba and Cuban waters," and directing and empowering the President “to use the entire land and naval forces of the United States, and to call into actual service of the United States the militia of the several States, to such extent as may be necessary to carry these resolutions into efiect" as evident declaration of war."

Congress by its act of April 25 declared that war had existed since April 21.5

The granting of the war-making power to Congress by the provisions of the Constitution of the United States was one of the greatest innovations in the direction of greater human liberty and justice made by that document. It presented a striking contrast

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I The Prize Cases, 2 Black. 635, 668; 17 L. Ed. 459, 477.

Talbot v. Seeman, I Cranch., 1, 28; 2 L. Ed. 15, 24. • Bas, v. Tingy, i Dallas, 37, 10; 1 L. Ed. 731, 732-3. * Halleck's International Law, Ch. XIV, sec. 12. The Pedro, 175 U. S. 345, 303; 44 L. Ed. 195, 198.

to the rule on the subject prevailing in the European monarchies at that time.

It was a deliberate innovation and one which was considered of the highest importance by those adopting it.

The historical background to this innovation was vividly set out at a later time in a speech by Senator Sumner, of Massachusetts:

By the Constitution it is solemnly announced that to Congress is given the power to “declare war''. This allotment of power was made only after much consideration and in obedience to those popular rights consecrated by the American Revolution. In England and in all other monarchies at the time this power was the exclusive prerogative of the Crown, so that war was justly called the last reason of kings. The framers of our Constitution naturally refused to vest this kingly prerogative in the President. Kings were rejected in substance as in name. The one-man power was set aside and this kingly prerogative placed under the safeguard of the people, as represented in that highest form of national life, an act of Congress. No other provision in the Constitution is more distinctive or more worthy of veneration. I do not go too far when I call it an essential element of republican institutions, happily discovered by our fathers.

What the framers of the Constitution intended in this matter is to be most accurately determined, however, from a study of the debates in the Federal Constitutional Convention itself.

The question was brought before the convention on August 17, 1787, when Mr. Pierce Butler, of South Carolina, suggested that the power to declare war should be vested in the President. No other Member acquiesced in this view, the motion was not seconded, in fact Mr. Butler apparently made no formal motion, and the question therefore was not formally before the convention. The suggested idea was so repugnant to the views of the other Delegates, however, that at least five of the prominent Members of the convention, including a future President, a future Vice President, and a future Chief Justice of the United States,' signified, in one way or another, their opposition to the granting of any such power to the President. Mr. Gerry stated that he "never expected to hear in a republic a motion to empower the Executive alone to declare war."

Even Mr. Butler appears to have later completely changed his views on this question, for on September 7 we find him seconding a motion “to authorize a concurrence of two-thirds of the Senate to make treaties of peace, without the concurrence of the President." In arguing for this motion he supported it:

As a necessary security against ambitious and corrupt Presidents. He men. tioned the late perfidious policy of the Statholder of Holland, and the artifices of the Duke of Marlboro to prolong the war of which he had the management.10

It is improbable that a single Member of the convention would have signed his name to the Constitution if he had supposed that that instrument might be construed as authorizing the President to initiate a foreign war, either general or partial, without the express authorization of Congress.

Even as the Constitution stood, however, there was great fear among many of the citizens of the United States that too great military authority was given to the President therein.

6 Mr. Madison. He would leave " to the Executive the power to repel sudden attacks." ? Mr. Gerry.

Mr. Ellsworth. Mr. Ellsworth's attacks on this proposal were not as direct as that of the other speakers, but appear by inference. Mr. Sherman and Mr. Mason also opposed the proposal.

Madison's "The Debates in the Federal Convention of 1787” under date of August 17. 10 Id, under date of September 7.

In an effort to overcome this feeling the authors of the Federalist wrote on this subject as follows:

The President is to be Commander in Chief of the Army and Navy of the United States. In this respect his authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first general and admiral of the confederacy, while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies--all which, by the Constitution under consideration, would appertain to the legislature.” il

STATEMENTS BY PRESIDENTS OF THE UNITED STATES RELATIVE TO

THE ExclUSIVENESS AND EXTENT OF THE WAR-MAKING POWER OF CONGRESS TO THE CLOSE OF THE NINETEENTH CENTURY

Several generations of American statesmen had passed away before any suggestion was made by any department of the United States Government that the President had any authority to employ force or to authorize its employment outside of the limits of the United States for offensive purposes, no matter for what object or under what provocation, without express authorization by Congress.

Neither President Washington nor President John Adams appear to have discussed this question to any great extent, but neither made any effort to exercise the war-making power. The latter of the two, in his special message to Congress of May 16, 1797, said:

It remains for Congress to prescribe such regulations as will enable our seafaring citizens to defend themselves against violations of the law of nations and at the same time restrain them from committing acts of hostility against the powers at

war.

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President Jefferson in his first annual message, dated December 8, 1801, recognized, in the most unmistakable language, both the exclusiveness and the extent of the war-making power of Congress, and at the same time distinguished between the making of war and acts of self-defense:

The Bey had already declared war. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded and that of the Atlantic in peril. The arrival of our squadron dispelled the danger. One of the Tripolitan cruisers having fallen in with and engaged the small schooner Enterprise, commanded by Lieutenant Sterret, which had gone as a tender to our larger vessels, was captured, after a heavy slaughter of her men, without the loss of a single one on our part.

Unauthorized by the Constitition, without the sanction of Congress, to go beyond the line of defense, the vessel, being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether, by authorizing measures of offense also, they will place our forces on equal footing with that of its adversaries.

It is to be noticed how conservative President Jefferson was as to the extent of his powers even after another country had declared war against the United States.

President Jefferson clearly recognized and stated the distinction between those cases where the use of force abroad for the protection of American lives and property is really defensive and where, therefore, it may be authorized by the President without the consent of Congress and those cases where it is offensive in its character and therefore only permissible when authorized by Congress. In the case of actual physical attacks upon American citizens or their property or the immediate danger of such attacks the forces of the United States may be used for strictly protective purposes without the consent of Congress, which it is manifestly impossible to obtain in such cases. When, however, any attempt is made to take over the control of territory, to use force for the collection of claims due to American citizens, to interfere with the military operation of foreign troops, or, above all, to interfere between two governments, each claiming to be the legal government of the country, war (perhaps only partial war, but still war) is waged, and this can only be constitutionally done under the authorization of Congress. There is here no question of any surrender of American rights or any failure to protect American interests; it is merely a question as to which department of the Government has been granted the power of deciding upon the question of the necessity of war. The framers of the Constitution felt that this was too great a power to be safely placed in the hands of any one man and expressly granted it to Congress. For more than & century the President of the United States acquiesced in this decision. The distinction between the two classes of cases is so clear-cut that there can be no legitimate reason for doubt as to the category into which any particular case should fall; any confusion on this point will be the work of those who, for some reason or another, wish to muddy the waters.

1 The Federalist, No. LXIX

Congress a little later authorized the blockade of Tripoli, indicating that Congress can always be relied upon to authorize the proper use of force where legitimate American interests are really in danger.

No member of the Federal Constitutional Convention took a more prominent part in the framing of the United States Constitution or was better informed as to its real intent and meaning than James Madison. His conduct may be fairly held to be more entitled to weight in determining the proper construction of the constitutional powers of the President than that of any other President of the United States.

It is evident that that President never for a moment supposed that, in virtue of his office, he possessed the slightest power to make war of any kind, either full or partial.

His belief, or in his case it might better be said his positive knowledge, as to the intentions of the framers of the Constitution on this point is shown in his message of June 1, 1812, where, after recounting the terrible outrages which had been committed by English ships upon American commerce and after calling attention to the failure of "our remonstrances," he referred the matter to the attention of Congress in the following words:

Whether the United States shall continue passive under these progressive usurpations and these accumulating wrongs, or, opposing force to force in defense of their national rights, shall commit a just cause into the hands of the Almighty Disposer of events, avoiding all connections which might entangle it in the contests or views of other powers, and preserving a constant readiness to concur in an honorable reestablishment of peace and friendship, is a solemn question which the Constitution wisely confides to the legislative department of the Government.

The denial of the war-making power to the President has never been construed to include the denial of the right to defend the United States wnen its territory is actually attacked by foreign enemies; and such right of self-defense may be reasonably construed to au

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