The Personal Website of Mark W. Dawson

Commander in Chief Powers

A Declaration of War by the United States falls under the War Powers Clause of the Constitution. In Article I, Section 8, Clause 11 of the U.S. Constitution, it vests in Congress the power to declare war, with the following wording:

“[The Congress shall have Power ...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water ...”

However, Article II, Section 2, Clause 1 of the U.S. Constitution expressly designates the President as:

“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;“

As such, Presidents have claimed that they have Commander in Chief powers under this designation that are not explicitly specified in the Constitution.

Several wars have been declared under the U.S. Constitution, although there is some controversy as to the exact number, as the Constitution does not specify the form of such a declaration. Five wars have been declared by Congress under their constitutional power to do so: the War of 1812, the Mexican–American War, the Spanish–American War, World War I, and World War II. The Korean War, the Vietnam War, the Gulf War, the Afghanistan War, and the Iraq War were major military conflicts in which no war was declared by Congress. Also, many of the conflicts with the American Indian tribes were conducted under Commander in Chief powers, without a Congressional War declaration, but often with Congressional approval.

From almost the beginning of the United States, Presidents have used their Commander in Chief powers to engage in military conflicts without the approval of Congress. President John Adams had his Quasi-War, President Thomas Jefferson had the First Barbary War, and President James Madison had his Second Barbary War. And President Abraham Lincoln engaged in the Civil War without a Congressional Declaration of War (he did so under the reasoning that he was suppressing an insurrection and not conducting a war). In all of these cases, the President justified their use of military power as in the best interest of America and the American people, as well as to prevent harm by foreign nations and foreign nationals against Americans and American businesses located outside of the United States.

In modern America, Presidents have utilized the Commander in Chief powers to engage in minor military conflicts. In Bill Clinton's presidency, the U.S. engaged in several military actions, including interventions in Somalia, Bosnia, and Kosovo. President Obama is known to have ordered airstrikes in Afghanistan, Pakistan, Libya, Yemen, Somalia, Iraq, and Syria. President Biden’s usage of the Commander in Chief powers has been murkier, as he may not have initiated any new conflict, but he ended only one of the many unnecessary conflicts he inherited, and he continued to support many others under his Commander in Chief powers. President Biden also watched and provided aid in the Russo-Ukrainian War and the War in Gaza under his Commander in Chief powers (mostly with the support of Congress). He also assisted in the rise and financial support of Iranian nuclear weapons and ballistic missile development, and the escalation of the Israel conflicts in the Middle East, as outlined in the Cato Institute's “Fact-Checking Biden’s Speech about US Conflicts”. President Trump, in both his administrations, also frequently used his Commander in Chief powers as a primary tool of foreign policy, often without seeking congressional approval. His notable military actions include airstrikes in Syria and Yemen, along with the recent strikes against Iran's nuclear facilities. A more comprehensive list of Presidents and instances of bombings without congressional approval can be obtained here.

Thus, the question that comes up almost every time the need arises for military action is how much, what kind, and for how long any military force the President can unleash in the absence of an official declaration of war by Congress? Constitutional scholars disagree on how much military power the Commander in Chief can use without Congressional approval. The War Powers Resolution of 1973 tried to resolve this question, but the resolution has several Constitutional issues. The primary issue is whether Congress can, by legislation, constrict the Commander in Chief's powers, other than by the power of the purse, which is explicitly given to Congress by the Constitution. If Congress is opposed to any Commander in Chief actions, then they should use this power of the purse to eliminate or restrict funding for the action.

Some Constitutional scholars have suggested that explicit restrictions on the Commander in Chief's actions may only occur through a Constitutional Amendment. The answer to the Constitutionality of the War Powers Resolution may have to be resolved by a Supreme Court ruling. However, neither Congress nor the President has legally challenged the War Powers Resolution, as they both benefit politically from the murkiness of various legal interpretations of the resolution, and they are both concerned that their interpretations may be declared unconstitutional.

Additionally, since 1973, most presidents have ignored parts or all of the War Powers Resolution. According to the Congressional Research Service, “presidents have taken a broader view of the Commander in Chief power to use military force abroad. They have variously asserted ‘sources of authority’ … [and] other statutes that do not specifically cite the War Powers Resolution. Additionally, they have relied on the Commander in Chief power itself and the president's foreign affairs authority under Article II of the Constitution”. For more information on the War Powers Resolution of 1973 I would direct to the factually website question on “How does the War Powers Act of 1973 limit presidential military action?”

The other overriding issue is that in modern warfare, quick and decisive military action, along with secrecy, is often needed to achieve one's goals or to defend against aggression. Congress is not known for quick and decisive action, and in their deliberations, they may hinder or prevent achieving the goal or defending against aggression. In addition, in their deliberations, they may reveal information that could give aid or assistance to the foe. Consequently, Commander in Chief powers are more necessary in modern conflicts, as the harm inflicted by a foe may be extensive and deadly without quick, decisive, and secret military action. Thus, the War Powers Resolution of 1973 may do more harm than good in restricting Commander in Chief powers.

I can propose no solution to this issue of Presidential versus Congressional war powers. It is a complicated Constitutional issue, and any solution may do harm to America and Americans' interests. Thus, it may be best not to have a solution, but to leave it to the American people to decide if the President or Congress is acting in the best interests of America and Americans. And the American people's decision should be reflected in elections, as polling is not a reliable source of determining the will of the American people.