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The President as Commander in Chief

The Constitution gives the power of declaring war solely to Congress, while the president serves as commander in chief of the U.S. military. What does commander in chief mean? As American citizens, it is our responsibility not only to stay informed about the domestic and international uses of our military, but also to make thoughtful judgments about the wisdom and prudence of each use. Is it the responsibility of free people to spread freedom around the world? What about the responsibility to, at a minimum, refrain from sustaining tyranny? Should the military ever be used against American citizens?

Making these judgments is crucially important, especially as Americans are increasingly subject to law enforcement on the local level (local and county police), state level (state police, highway patrol, etc.), and by federal government agencies such as the Federal Bureau of Investigation (FBI), Drug Enforcement Administration (DEA), National Security Agency (NSA), the Bureau of Alcohol, Tobacco, and Firearms, and Explosives (ATF), U.S. Customs and Border Patrol, U.S. Immigration and Customs Enforcement (ICE), and the Transportation Safety Administration (TSA). Is this web of agencies and organizations—all of which have surveillance and detention powers— good or bad for liberty?

In addition to these policing bodies, U.S. military forces have been deployed against Americans several times in our history without a congressional declaration of war as in the Korean War, the Vietnam War, the Persian Gulf War, and the wars in Iraq and Afghanistan in the twenty-first century. Have these been proper uses of the military?

Military Force Against Foreign Enemies

In response to presidential requests, Congress has used its constitutional power to declare war five times in the nation’s history: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. Since World War II, the United States has never actually declared war, despite our being at near-constant war since the days of the Truman administration.

In 1947, President Harry Truman announced that the United States would assist any nation in the world that was threatened by Communism. When Communist North Korea invaded free South Korea in 1950, Truman sent U.S. troops as part of a combined United Nations force defending South Korea. Truman did not ask for a declaration of war, and described the troops’ mission as a “police action.” For the next several decades and beyond, the word “war” would begin to lose its precision. Rather, declaring war came to be seen as unnecessary or inconvenient.

The power to make war continued to shift from Congress to the president during the administrations of Presidents John F. Kennedy, Lyndon Johnson, and Richard Nixon.

In 1961, Kennedy sent supplies and advisors to South Vietnam in their fight against Communist North Vietnam. Johnson escalated the war. When he was elected president, Nixon promised to end the Vietnam War, but instead he expanded it with secret bombings in Cambodia in order to bring the enemy to the negotiating table.

The trend of increased presidential power to make war approached a breaking point. News of the My Lai massacre broke in 1969. Nixon revealed the “Cambodian Incursion” in April of 1970; The next month, National Guardsmen at Kent State fired on unarmed students protesting the expansion of the Vietnam War into Cambodia, killing four and wounding nine others. The Pentagon Papers were published in 1971, revealing that the government had misled Congress and the public about the cause of entry into the full scope of the Vietnam War.

The War Powers Resolution

Congress responded to these events by attempting to reclaim some of the war powers it had been giving over to the president since World War II.

The Democratic Congress, in response to the peace movement led by the New Left, ordered an immediate end to the bombing raids in Cambodia, and drew up the War Powers Resolution (1973).

The bill required the president to consult Congress before the start of hostilities, and report regularly on the deployment of U.S. troops. Further, the president would have to withdraw forces within sixty days if Congress had not declared war or authorized the use of force.

When it came to his desk, Nixon vetoed the War Powers Resolution. In his veto message, he wrote that the resolution “would attempt to take away, by a mere legislative act, authorities which the President has properly exercised under the Constitution for almost 200 years.” He also noted that Congress already had a constitutional check on the president’s power with its funding power. But Congress overrode his veto and the War Powers Resolution became law in 1973.

Although the War Powers Resolution may have been meant to return the power to declare war to Congress, that has not been the result.

The president’s war-making power has continued to increase. No president has fully complied with the War Powers Resolution, and no Congress has declared war since World War II despite near-constant conflict. The tension over the balance of powers listed in the Constitution between the legislative and executive branches’ war powers has remained.  A few examples of this tension include: The Senate never ratified the 1979 SALT II treaty, negotiated by President Jimmy Carter. President Ronald Reagan sent troops into Grenada, calling the deployment a “rescue mission.” He did so without seeking congressional authorization. President George H.W. Bush, believing a “New World Order” was needed in the post-Cold War Era, sought to build an international coalition before he invaded Iraq. He had secured congressional approval of military force but no formal declaration of war. President Bill Clinton used executive orders and presidential directives to declare areas in Kosovo a “war zone” and used military troops for an “intervention.” President George W. Bush invaded Iraq in 2003 after asking for and receiving Congress’s “authorization to use military force” without a declaration of war.

From War to Fighting Terrorism

If the executive’s war powers had been growing, then they began growing still further—both at home and abroad—after the September 11, 2001 attacks. The power to wage “war” against foreign nations become the power to “fight terrorism” plotted by terrorist organizations such as Al Qaeda. Not long after the attack, President George W. Bush received congressional authorization to use military force in Afghanistan. Congress passed the PATRIOT Act and Bush proposed the creation of a new cabinet department: the Department of Homeland Security. Other agencies and departments experienced growth, including the Department of Defense, the Department of Cybersecurity and Communication, the Bureau of Counterterrorism, the Transportation Safety Administration, the National Counterterrorism Center, the National Security Agency, the Federal Bureau of Investigation, and many others.

Many of these organizations have scrutinized the activities of Americans in unprecedented ways.

Why has Congress stopped declaring war? Some argue that the rise of nuclear weapons and other technologies after World War II justify the increased power of the president to wage war without congressional approval. If an enemy leader across the world need only press a button to launch a nuclear attack, the president cannot call Congress into session to ask for a declaration of war before issuing a response. Critics of this view point out, however, that no military action conducted by a president without a declaration of war has been ordered because of an immediate threat to the United States. Further, the commander in chief role has always traditionally included the power to repel attacks without a declaration of war. Finally, Congress can “declare war” as a means of acknowledging that a state of war exists—as it did after Japan’s December 7, 1941 attack on Pearl Harbor. Following the September 11, 2001 attacks, Congress did not declare war.

The rise of government’s need to fight global terrorism is another justification for increased commander in chief power. According to a study published in the Washington Post, “some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States. An estimated 854,000 people hold top-secret security clearances. In Washington and the surrounding area, thirty-three building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or twenty-two U.S. Capitol buildings—about 17 million square feet of space.”

War, Liberty, and the Future

The American Armed Forces have fought valiantly against foreign enemies since the Founding of the nation. As commander in chief, the president has the power to oversee the Armed Forces during their service.

Congress has the power to call military personnel into service with a declaration of war. There have been many times when these two branches of government have worked in concert to protect the rights and liberties of the American people and the territories held by the United States. Disagreements continue to occur regarding the balance of this power, and federal government powers do tend to increase during times of crisis. A study of the history of the constitutional separation of war powers raises questions. Has the separation of war powers worked? Was Madison correct to believe that the checks and balances in the Constitution would be enough to protect the people from enemies and at the same time from a too-powerful government? Has ambition counteracted ambition, as the Founders hoped it would?