Who Decides on War? The Constitution, the 1973 Law and the Gray Zone

How many wars has the United States formally declared? Take a guess. Most people say it must be dozens: Korea, Vietnam, Iraq, Afghanistan, the whole long list. The real answer is five. Congress has declared war on foreign nations eleven times, but those eleven declarations covered only five wars: the War of 1812, the Mexican-American War, the Spanish-American War, the First World War and the Second World War. The last declarations came in June 1942. Since then, American troops have fought and died in conflicts that were never declared, and some of them were enormous.

That gap between the written Constitution and how the country actually goes to war is the subject of this post. I am not going to tell you the answer is simple, because it is not. Reasonable conservatives disagree. Some of them want a president with broad freedom to protect the country. Others want Congress to own every serious decision to send Americans into combat. I want to give you the text, the history in order, and the strongest version of each side so you can decide for yourself, and so that you can read the next fight in the news with a clear head.

What the text says

Article I, Section 8 gives Congress a list of war powers. Congress has the power "to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." It raises and supports armies, with the limit that no appropriation for the army may be for longer than two years. It provides and maintains a navy. It makes rules for the government and regulation of the land and naval forces. And, importantly, it controls the money for all of it.

Article II, Section 2 says "The President shall be Commander in Chief of the Army and Navy of the United States." That is all it says about his military role. It does not say he can declare war. It does not say he can start one.

The delegates at the Constitutional Convention in 1787 had this choice in front of them. An early draft gave Congress the power to "make war." During the debate, the delegates changed the word to "declare," according to James Madison's notes, so that the president could repel sudden attacks without waiting for a vote. That detail is the key to the whole subject. The founders deliberately left the president room to defend the country in an emergency. They just as deliberately did not give him the power to start a war on his own initiative.

Alexander Hamilton explained the president's role in Federalist 69. He compared the president's power as Commander in Chief to that of the British king and said the American president's authority would be much narrower: the supreme command and direction of the military forces as the first general and admiral, rather than the king's powers to declare war and to raise and regulate fleets and armies. In other words, Hamilton, the great champion of strong executive power, told the ratifying public that the president would not have the king's war powers. Congress would.

1950: Korea, a war without a declaration

For the first century and a half, presidents used force without declarations in small ways: fighting pirates, protecting Americans abroad, landing marines in Caribbean nations. The scale was modest, and Congress rarely made an issue of it. Korea changed everything.

On June 25, 1950, North Korean forces invaded South Korea. President Harry Truman ordered American forces into the fight within days. He acted with resolutions of the United Nations Security Council behind him and without a declaration of war or other authorization from Congress. Truman described the effort at a press conference as a "police action." It became a full-scale war. The conflict lasted until the armistice in 1953, and American casualties were large.

Truman's defenders argued that he was carrying out the treaty obligations of the United States as a member of the United Nations, and that the emergency required speed. His critics, including many Republicans at the time, argued that he had taken the country into a war without going to Congress at all. Korea itself was a central issue in the 1952 election. It is useful to remember when someone tells you that questioning a president's use of force is a new, partisan idea. Republicans were making that very argument in 1950.

1973: the War Powers Resolution

Vietnam made it worse. American involvement grew through the 1960s on the strength of the Gulf of Tonkin Resolution of 1964, a congressional resolution that many members later felt had been stretched far beyond what they intended. By 1973, with the war winding down and the Watergate scandal consuming the White House, Congress decided to set rules.

The War Powers Resolution, passed over President Richard Nixon's veto on November 7, 1973, had four main parts.

1. Consultation. The president must consult with Congress "in every possible instance" before introducing forces into hostilities.
2. Reporting. He must report to Congress in writing within 48 hours of sending forces into hostilities or into situations where hostilities are imminent.
3. The 60-day clock. Unless Congress declares war or specifically authorizes the use of force, the president must end the use of forces after 60 days, with an additional 30 days permitted for the safe withdrawal of troops.
4. Congressional override. The original text also allowed Congress to order a withdrawal by a concurrent resolution, which the president would not sign. The Supreme Court's 1983 decision in INS v. Chadha, which struck down a similar one-house or two-house veto, cast serious doubt on that provision.

Nixon vetoed it, calling parts of it unconstitutional and dangerous. Congress overrode the veto with two-thirds of both houses, a rare show of strength by a legislature that had long left foreign policy to the president. Every president since, from both parties, has complied with the reporting requirement in some form while also saying that parts of the resolution are unconstitutional. That is an important piece of the story: the law has been followed in part and disputed in part for fifty years.

1983: Grenada and Lebanon

In October 1983, President Ronald Reagan sent American forces to Grenada after a violent coup on the Caribbean island. The operation was over quickly, and the question of the 60-day clock never had time to bite. A little earlier, Marines had been deployed to Lebanon as part of a multinational force. In that case Congress and the White House reached a compromise: Congress passed a resolution authorizing the Marines to remain in Lebanon for up to eighteen months, and the president signed it, while saying he did not concede that the War Powers Resolution applied. That episode shows a way the system can work: a president and a Congress that bargain in public and put the result in a statute.

1991: the Gulf War authorization

When Iraq invaded Kuwait in August 1990, President George H. W. Bush assembled a large coalition and a large American force. In January 1991, Bush asked Congress for authority to use force. Congress passed the Authorization for Use of Military Force Against Iraq Resolution, and Bush signed it in mid-January. The president had said that he believed he did not need congressional approval, but he asked for it anyway.

This is the model many constitutional conservatives point to: a president with plenty of confidence in his own authority who decided, for the sake of the country's unity and the soldiers' morale, to take the question to the people's representatives and win the vote. It was also followed by a quick and decisive victory. The vote in Congress was close, and so it was a real debate, not a rubber stamp.

1999 and 2011: Kosovo and Libya

The 1990s and 2000s brought the gray zone fully into view. In 1999, President Bill Clinton joined a NATO air campaign against Yugoslav forces in Kosovo. The campaign began in March and ran about eleven weeks. Congress never authorized it. The House voted against giving formal approval, and it also declined to order the president to stop. The administration argued that Congress's votes to fund the operation, and its other actions, were enough. When a group of members sued, a federal appeals court dismissed the case because the members lacked standing, so the courts did not resolve it.

In 2011, President Barack Obama joined a NATO operation in Libya, starting in March of that year. As the 60-day mark passed, the administration told Congress that the American role was limited to support, did not involve ground troops or serious risk to Americans, and therefore did not amount to "hostilities" within the meaning of the resolution. Critics of both parties said that reading drained the 60-day clock of its meaning. Notice that neither Clinton nor Obama was following a doctrine invented for the occasion. They were using the same flexibility that Truman, Reagan and the Bushes had used. The parties changed. The pattern held.

After the attacks of September 11, 2001, Congress passed the Authorization for Use of Military Force on September 18, 2001, and in October 2002 passed another one for Iraq. Those authorizations have been used by presidents of both parties for many years, in many places. They are broad, they are old, and Congress has rarely rewritten them. If you want a reason why the argument never ends, start there.

The argument for the resolution, and the argument against

Let me give both sides at their strongest.

For the War Powers Resolution.

1. The Constitution gives Congress, not the president, the power to declare war. A law that sets a time limit on military action without Congress is a modest way of enforcing that text.
2. Congress also controls the money, and under the Necessary and Proper Clause it can set conditions on how forces are used.
3. Without a clock, presidents will always take the easy path and let Congress's role fade, as it did after 1950.

Against it.

1. The Commander in Chief Clause gives the president command of the forces, and a rigid clock interferes with the conduct of war. An enemy can simply wait for 60 days to pass.
2. The Constitution's remedy for a president who misuses the military is Congress's power over spending, the power of impeachment and the vote, not a statute that tells him when he must stop.
3. Presidents of both parties have objected to the law, and the courts have never ruled on its central provisions. A law that the branch it binds refuses to treat as binding is a weak law.

Here is where I come out. I think the text puts the decision to begin sustained, large-scale war in Congress's hands, and I think presidents of both parties have wandered too far from it. I also think the president must have room to act fast against a sudden attack, which is the room the founders left. The gray zone is the space between a surprise raid and a prolonged war, and in that space the best protection is not a legal clock but a Congress with the nerve to use its own tools: hearings, authorizations, and the budget. If you are watching any current fight, including the debate over Iran, the same frame applies. Read the text of the resolutions yourself on Congress.gov, and check the reporting that presidents submit under the resolution. For a related look at how courts judge presidential power, see Justice Jackson's Three-Box Test for Presidential Power, Put to Work and the discussion in United States v. Nixon and What the Court Really Said About Executive Privilege.

What Congress can do when it wants to be heard

A reader could finish this history and conclude that Congress is helpless. It is not. It is reluctant, which is different. Members of Congress have several tools that do not depend on any court, and they are available to whichever party is in the majority or the minority.

1. The power of the purse. The Constitution limits army appropriations to two years at a time, and every year Congress writes the defense budget. A funding bill can say what money may and may not be used for.
2. Authorizations with edges. Congress can write a narrow authorization with a named enemy, a named purpose and an expiration date, or it can write a broad one that lasts for decades. The difference is a choice, and members make it with their votes.
3. Hearings and reporting. Committees can summon officials and demand the written reports the 1973 law already requires. Sunlight is cheap, and presidents hate it.
4. Votes on the record. The hardest thing for many members of Congress is to cast a vote on war. Any authorization debate forces each member to say yes or no where voters can see. That is why it is so often avoided.

The party that is out of power has a part in this, too. Even a minority can force questions, offer amendments and make a record, as I describe in What the Minority Party in Congress Can Still Do When It Doesn't Run the Floor. And the historical stories matter: the way Republicans and Democrats alike have switched sides on these questions depending on who held the White House is a good reason to hold a principle that does not move with the calendar.

The bottom line

• Five wars, eleven declarations. The country has declared war formally only a handful of times. The rest was done by authorization, by statute, or by presidential order.
• The text splits the power. Congress declares war, funds the forces and makes the rules. The president commands them and may repel sudden attacks.
• The 1973 law is a clock, not a cure. Sixty days, with an extra thirty to withdraw, but every president since has disputed parts of it, and the courts have mostly stayed out.
• Hold both parties to the same standard. The argument you make against one president's use of force is the argument the other side will make against yours.
• Write your representatives. If you want a say before the next deployment, ask your member of Congress where they stand on an authorization vote. You can follow votes on the votes page.