Who Declares War? What the Founders Meant and Where We Drifted

Pop quiz. How many times has Congress formally declared war? If you said "a lot," you have been paying attention to the news. If you said "five wars, eleven declarations, and the last one was in 1942," you are either a historian or a bore at parties, and I salute you.

The United States has fought in far more than five wars. Korea, Vietnam, the Gulf, Afghanistan, Iraq, and a long list of smaller operations did not begin with a declaration. Somewhere between 1812 and now, the most solemn power the Constitution gives the national government went from a thing Congress did to a thing Congress commented on afterward. How did that happen? And is it a problem?

My answer is yes, it's a problem, and it is one that conservatives, of all people, should care about. We say we believe in limited government, enumerated powers, and the separation of powers. The war power is the test of whether we meant it.

The argument in five steps

Here's what I'm going to argue.

1. The text gives Congress the power to declare war and the president the command of the forces.
2. The founders divided these on purpose, and their debates show they understood why.
3. The early presidents, including Jefferson, behaved as if the division was real.
4. Since 1950, practice has drifted steadily toward the executive, and not by constitutional amendment.
5. The cure is not a magic statute. It is Congress using the powers it already has, above all the power of the purse.

The text

Two clauses carry most of the weight.

Article I, Section 8, Clause 11 gives Congress the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water." Clause 12 gives it the power "To raise and support Armies," with the limit that no appropriation for that use shall be "for a longer Term than two Years." Clause 13 adds the power to provide and maintain a Navy.

Article II, Section 2, Clause 1 says "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."

Read them together and the structure is easy to see. Congress decides whether the country is at war and pays for the forces. The president commands them once they are in the field. The two-year limit on army appropriations is a small but telling detail. The founders so distrusted a standing army controlled by one person that they made Congress re-vote the money on a regular schedule.

What the founders said they were doing

The Constitutional Convention took up the question on August 17, 1787. An early draft had given Congress the power to "make war." Delegates moved to change it to "declare war." The reason was to leave the president the power to repel sudden attacks, since a legislature cannot assemble in a night to answer an invasion. The change was made.

So there's a principle behind the language. The president can respond to a sudden attack on the country. The decision to start a war, to choose a fight, is for Congress. Madison, who took the careful notes that preserve this debate, held the view for the rest of his life that the power to commence war was legislative.

Hamilton, no friend of weak executives, said much the same in Federalist 69, where he compared the proposed president to the British king. The king, he noted, declares war and raises and regulates fleets and armies. The president, by contrast, would have "the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy." The point of the comparison was to reassure readers: this is not a monarch. The power to declare and the power to fund were placed elsewhere.

Pacificus and Helvidius

The founders themselves did not agree on all of it, and the best illustration is a fight between two men who had written the Federalist Papers together.

In April 1793, with Europe at war after the French Revolution, President Washington issued a proclamation of neutrality. Critics said he had no authority to do so, since only Congress could decide between war and peace. Hamilton defended him in a series of essays signed "Pacificus" in the summer of 1793. His argument was that the Constitution's first sentence of Article II vests "the executive Power" in the president, and that the specific listings, such as the power to make treaties, are not a complete inventory. The exceptions in Article I, including the power to declare war, should be read narrowly, he said, and everything else in the field of foreign affairs falls to the executive.

Madison, at Jefferson's urging, responded as "Helvidius." His answer was that the power to declare war is, in its nature, legislative, because it involves deciding the rules the nation will live under. Applying a law is executive. Making the decision to go to war is not applying anything. If the president could do it, the legislative power would be a dead letter. He would also write, in 1795, a line conservatives should treasure: of all the enemies of public liberty, war is perhaps the most to be dreaded, because it breeds armies, debts, and taxes. That is why it should be hardest to start.

Notice what each man conceded. Hamilton did not claim the president could declare war. His claim was about neutrality and the general direction of foreign relations. Madison did not claim the president could do nothing. Both agreed on the core. The dispute was about the edges, and the edges are where the drift began.

Jefferson and the pirates

The first real test came early, and it came from a man who had no love for executive power.

For years the Barbary states of North Africa had demanded tribute from American merchant ships. In May 1801 the Pasha of Tripoli declared war on the United States by chopping down the flagstaff outside the American consulate. President Jefferson sent a naval squadron to the Mediterranean.

What he told Congress in December 1801 is the interesting part. His message said that he was unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense. In other words, his ships could defend themselves and American shipping, but offensive action needed a vote. Congress then passed an act in February 1802 authorizing the president to use the armed vessels of the United States to protect commerce and seamen against the Tripolitan cruisers.

Jefferson did not want a war without a vote. He wanted a vote. That was the early understanding, and it came from the man who wrote the Declaration. I'd say any theory of presidential war power has to get past Jefferson's own letter to Congress before it starts.

The Quasi-War

A few years earlier, in 1798, the United States had fought an undeclared naval conflict with France, called the Quasi-War. There was no declaration, but Congress did not stand aside. It passed a series of statutes: it created the Navy Department in April 1798, authorized the president to use warships against French armed vessels, and set limits on what could be done.

The courts noticed. In Bas v. Tingy (1800), justices said that a war could be limited in scope, and that the Constitution's war clause did not require total war to be declared in every case. And in Little v. Barreme (1804), Chief Justice John Marshall wrote an opinion about a naval captain who had seized a ship under orders from President Adams. Congress had authorized seizures of vessels going to French ports. The ship in question was sailing from one. The president's order went further than the statute, and the Court held the captain liable. Even in a limited war, Congress could set the boundaries, and the president could not go past them.

That is the early model: limited wars authorized by statute, with Congress drawing the lines and the courts enforcing them.

Where the drift began

Now fast-forward. The United States formally declared war five times, in eleven separate declarations: Britain in 1812, Mexico in 1846, Spain in 1898, Germany and Austria-Hungary in 1917, and, in World War II, Japan, Germany, and Italy in 1941 plus Bulgaria, Hungary, and Romania in 1942. After that, no declaration.

The pivot came on June 25, 1950, when North Korea invaded South Korea. President Truman committed American forces within days. He acted under United Nations Security Council resolutions that the Soviet Union, boycotting the Council at the time, was not there to veto. He did not ask Congress for a declaration or an authorization. At a press conference on June 29 a reporter asked whether the country was at war, and Truman answered that it was not, calling it a "police action." That phrase has haunted constitutional law ever since.

Truman's critics included Republicans, and in early 1951 Senator Robert Taft argued in the Senate that the president had no authority to send troops to Europe without Congress. Two years later the Supreme Court decided Youngstown Sheet & Tube Co. v. Sawyer (1952), where Truman's seizure of the steel mills during the Korean War was struck down. Justice Jackson's concurrence set out a framework for presidential power that is still the standard reference. I use it in Justice Jackson's Three-Box Test for Presidential Power, Put to Work.

Then came the sequence everyone knows. Congress passed the Gulf of Tonkin Resolution in August 1964 and spent the next decade regretting the blank check. It repealed that resolution in 1971, and passed the War Powers Resolution over Nixon's veto in 1973. I explain the mechanics and the limits in The War Powers Resolution Explained, and Why Presidents Resist It. After that, Congress authorized the 1991 Gulf War by a resolution in January 1991. It passed an authorization after September 11, in September 2001, and another for Iraq in October 2002. These are real exercises of the power, and they should be counted. But they were authorizations, not declarations, and they were often written broadly enough that later presidents relied on them for operations the authors might not have imagined.

The best case for the executive

The strongest argument for broad presidential power goes like this.

1. The world the founders knew moved at the speed of a sailing ship. The world we live in has missiles that cross continents in minutes.
2. A president who must wait for a vote may wait too long.
3. Presidents have used force on their own authority since the earliest days, and Congress has generally let them.
4. Congress is badly built for wartime decisions. It is slow, it is divided, and many members prefer to let the president take the heat.

The last point stings because it is partly true. Many members of Congress like the current system. If a war goes well, they cheer. If it goes badly, they say they never voted for it. That is not a constitutional crisis. It is a lack of nerve.

The answer: the sudden-attack exception already covers speed. Nobody serious says the president must wait for a vote while a missile is in the air. The question is about the choice to start a war that is not an emergency, a campaign planned for weeks, with time to ask. For those, the founders' answer was clear. And a president who tells you he cannot ask Congress because Congress might say no has just described the reason the clause exists.

The fix, and the purse

So what do we do? I'm not going to tell you a statute will save us. Statutes do not enforce themselves.

The better tool is the power the Constitution already gives. Article I puts the money in the hands of Congress. A president can order forces to move, but he cannot spend a dollar that Congress has not appropriated. In 1973, Congress used that power to end funding for combat in Southeast Asia. In the 1980s it used it to restrict aid to the Contras. These measures worked because they asked members of Congress for something they can actually do: vote on money.

Here is the practical proposal. Whenever forces are committed to a sustained operation, members should insist on a vote on an authorization with a clear objective and an end date or a requirement for renewal. If the president won't ask, Congress should put the question in an appropriations bill. That makes the representatives go on record, which is the point of a representative government.

This is a bipartisan project. A conservative who wants Congress to reclaim this power should expect to apply it to a Republican president, too. A principle that only works against the other party is a tactic. For the broader theory of congressional power, see Congress Can Only Do What the Constitution Lists and Madison Said So and Congress Should Write the Laws, and Other Radical Ideas From Article I. For the Republican record of presidents seeking authorizations, see How Republican presidents asked Congress for war powers from Formosa to Iraq.

The bottom line

• The Constitution splits the war power on purpose: Congress declares and funds, the president commands. The founders did this because war is the most dangerous power in the hands of one person.
• Jefferson, who wrote the Declaration, told Congress he could not go beyond defense without its sanction. Marshall's Court held that Congress could limit even an undeclared war.
• The drift since 1950 happened by habit, not by amendment, and habits can be broken.
• The best remedy is the one in the text: the power of the purse, used by members willing to vote.
• Ask your senators and representative a simple question: if forces are sent into a sustained fight, will you demand a vote on authorization? Whatever party holds the White House, the answer should be the same.