Article I, Section 8, Clause 11:

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

The legislative and executive branches have differed in their interpretation of their respective powers to initiate military action. In a joint resolution enacted in 1973 known as the War Powers Resolution, Congress stated that the Constitution permits the President to introduce troops into hostilities (or situations where hostilities are imminent) only after Congress has declared war, specifically authorized the President to use force, or there is a national emergency created by an attack on the United States or its territories.1 This view echoes James Wilson’s position at the Pennsylvania ratifying convention, where he suggested that any presidential power to initiate conflicts would be limited:

Some statements and practices of early U.S. presidents and government officials likewise suggest that these political figures understood that the power to initiate offensive military actions lay exclusively with Congress.3

The executive branch contends that it is not legally bound by Congress’s interpretation of the Declare War Clause and that the President possesses much broader constitutional authority than the congressional view would permit.4

. See also (stating that the War Power Resolution’s “policy statement” describing separation of war powers “is not to be viewed as limiting presidential action in any substantive manner.” ). As reflected by the opinions5 of the Office of the Legislative Counsel (OLC) of the Department of Justice, the executive branch has generally taken the position that the Constitution’s assignment to Congress of the power to declare war implies that no other branch of government can bring the United States into a “full-scale war” without congressional authorization.6 Under this view, military action cannot rise to the level of what OLC describes as “war in the constitutional sense” without congressional authorization.7

Although OLC’s prevailing view is that the Declare War Clause limits presidential power, the executive branch has also reasoned that only “prolonged and substantial military engagements” rise to the level of what OLC calls war in the constitutional sense.8

. Operations involving “exposure of U.S. military personnel to significant risk over a substantial period” are most likely to rise to the level war in the constitutional sense, according to OLC. Id. The executive branch has never publicly concluded that a military operation crossed the threshold into an unconstitutional war, but it has opined that a variety of military operations do not reach this level.9 For example, OLC has concluded that deployments of 20,000 ground forces, a two-week air campaign including 2,300 combat missions, and an air campaign involving over 600 missiles and precision-guided munitions did not amount to wars in the constitutional sense.10 Although Congress enacted authorizations for use of military force in the Vietnam War, the Persian Gulf War of 1991, the post-September 11 conflict of Afghanistan, and the 2003 Iraq War, each presidential administration claimed that it possessed independent constitutional authority to engage in each of those conflicts even if Congress had not authorized it.11 Accordingly, it is unclear whether any military action short of a “total war” akin to World Wars I and II would, in the executive branch’s view, rise to the level of war in the constitutional sense that requires congressional authorization.

In addition, not every presidential Administration has accepted the view the Declare War Clause limits the President’s power to deploy U.S. military forces. During the George W. Bush Administration, OLC took the position that the President has plenary authority to initiate military action in response to overseas threats, which is not limited by the Declare War Clause, and which Congress can only curtail by using the power of the purse.12

( “Congress’s power to declare war does not constrain the President’s independent authority over the use of military force.” ). See also § September 11, 2001 Terrorist Attacks and War Powers. Although OLC withdrew other opinions related to post-September 11 military actions addressing issues such as criminal prohibitions on torture, it has not withdrawn the Bush Administration’s interpretation of the Declare War Clause. See Memorandum from Steven G. Bradbury, Principal Deputy Assistant Att’y Gen., for the Files, Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 (Jan. 15, 2009), ; Memorandum from David J. Barron, Acting Assistant Att’y General, Withdrawal of Office of Legal Counsel CIA Interrogation Opinions (Apr. 15, 2009), >https://www.justice.gov/olc/file/2009-06-11-wd-cia-interr-01/dl.

Despite the wide disagreement over how the Constitution allocates power to commit U.S. forces into hostile circumstances, the judicial branch in recent decades has generally refrained from resolving cases that require resolution of this dispute.13 Lower federal courts have often declined to decide challenges to presidential authority to deploy U.S. force into conflicts overseas, holding that the plaintiffs could not meet threshold constitutional standards14 required for federal court jurisdiction.15

(per curiam) (dismissing as moot former service member’s challenge to constitutionality of military operation against the Islamic State); (holding that ten Members of the House of Representatives and group of taxpayers lacked standing to challenge military operations in Libya); (dismissing as unripe complaint by active-duty members of the military, parents of military personnel, and members of the U.S. House of Representatives seeking injunction against initiation of war against Iraq and challenge to the constitutionality of a 2002 authorization for use of military force); (affirming dismissal of suit by thirty-one Members of Congress challenging the legality of the air campaign in Yugoslavia), ; (dismissing as moot suit by eleven Members of the House of Representatives challenging as unconstitutional the 1983 military invasion of Grenada); (dismissing as nonjusticiable political question claim by Members of Congress that executive branch officials assistance to “Contra” forces in Nicaragua violated the Declare War Clause); (affirming dismissal of suit by twenty-nine Members of Congress challenging the legality of the United States’ presence in, and military assistance to, El Salvador as presenting nonjusticiable political questions). Courts have based these decisions on several justiciability doctrines that limit federal court review,16 including standing,17 mootness,18 ripeness,19 and the political question doctrine.20

Footnotes

1

See War Powers Resolution, Pub. L. No. 93-148 § 1(c), 87 Stat. 555 (1973) (codified at 50 U.S.C. § 1541(c)). The War Powers Resolution also contains, among other provisions, mandatory troop withdrawal timelines for the President to follow if Congress does not declare war or authorize hostiles, which are discussed in more detail in and Matthew C. Weed, Cong. Rsch. Serv., R42699, The War Powers Resolution: Concepts and Practice (2019), >https://crsreports.congress.gov/product/pdf/R/R42699/16.

2

The Debates in the Several State Conventions on the Adoption of the Federal Constitution 528 (Jonathan Elliot ed., 1836).

3

For example, James Madison wrote in a 1789 letter to Thomas Jefferson that the Constitution “with studied care vested the question of war in the Legisl[ature.]” Letter from James Madison to Thomas Jefferson (Apr. 2, 1798), >https://founders.archives.gov/documents/Madison/01-17-02-0070. Later that year, Jefferson wrote to Madison that the Constitution provides “one effectual check to the Dog of war by transferring the power of letting him loose from the Executive to the Legislative body.” Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15 Papers of Thomas Jefferson 397 (J. Boyd ed. 1978). See also, e.g., Michael D. Ramsey, Textualism and War Powers, 69 U. Chi. L. Rev. 1543, 1566 (2002) ( “Madison, Hamilton, Jefferson, Wilson, Washington, Jay, Marshall, and an array of lesser figures indicated that war power lay primarily with Congress, and no prominent figure took the other side.” ); Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War” , 93 Cornell L. Rev. 45, 90–93 (2007) (examining early constitutional practice).

4

See

Overview of the War Powers Resolution,

8 Op. O.L.C. 271, 274 (1984)

. See also

Presidential Power to Use the Armed Forces Abroad Without Statutory Authorization,

4A Op. O.L.C. 185, 190 (1980)

(stating that the War Power Resolution’s “policy statement” describing separation of war powers “is not to be viewed as limiting presidential action in any substantive manner.” ).

5

OLC’s opinions are “controlling” on questions of law within the executive branch subject to the ultimate authority of the President, but they are not law binding outside the executive branch. Compare, e.g., Memorandum from Steven G. Bradbury, Principal Deputy Asst. Att’y Gen., Office of Legal Counsel to Att’ys of the Office, Re: Best Practices for OLC Opinions 1 (May 16, 2005), >https://www.justice.gov/olc/page/file/1511836/dl, with McElroy v. United States ex rel.

Guagliardo,

361 U.S. 281, 285–86 (1960)

(declining to follow an Attorney General opinion and noting that such opinions are entitled to some weight, but do not have the force of judicial decisions).

6

See, e.g.,

April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities the President,

42 Op. O.L.C., slip op. at 8 (2018)

.

7

See, e.g.,

id.

;

Deployment of United States Armed Forces into Haiti,

18 Op. O.L.C. 173, 173 (1994)

.

8

See, e.g.,

Authority to Use Military Force in Libya,

35 Op. O.L.C., slip op. at 8 (2011)

. Operations involving “exposure of U.S. military personnel to significant risk over a substantial period” are most likely to rise to the level war in the constitutional sense, according to OLC. Id.

9

See through .

10

See

April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities the President,

42 Op. O.L.C., slip op. at 10 (2018)

(summarizing opinions addressing prior missions in Bosnia, Haiti, and Libya).

11

See through .

12

The President’s Constitutional Auth. to Conduct Military Operations Against Terrorists & Nations Supporting Them,

25 U.S. Op. O.L.C. 188, 193 (2001)

( “Congress’s power to declare war does not constrain the President’s independent authority over the use of military force.” ). See also § September 11, 2001 Terrorist Attacks and War Powers. Although OLC withdrew other opinions related to post-September 11 military actions addressing issues such as criminal prohibitions on torture, it has not withdrawn the Bush Administration’s interpretation of the Declare War Clause. See Memorandum from Steven G. Bradbury, Principal Deputy Assistant Att’y Gen., for the Files, Status of Certain OLC Opinions Issued in the Aftermath of the Terrorist Attacks of September 11, 2001 (Jan. 15, 2009), >https://www.justice.gov/sites/default/files/opa/legacy/2009/03/09/memostatusolcopinions01152009.pdf; Memorandum from David J. Barron, Acting Assistant Att’y General, Withdrawal of Office of Legal Counsel CIA Interrogation Opinions (Apr. 15, 2009), >https://www.justice.gov/olc/file/2009-06-11-wd-cia-interr-01/dl.

13

See sources cited infra note 15. See also .

14

Threshold justiciability requirements are discussed in more detail in and subsequent essays.

15

See, e.g.,

Smith v. Trump,

No.

16-5377, 731

F. App’x 8, 9 (D.C. Cir., July 10, 2018)

(per curiam) (dismissing as moot former service member’s challenge to constitutionality of military operation against the Islamic State);

Kucinich v. Obama,

821 F. Supp. 2d 110, 125 (D.D.C. 2011)

(holding that ten Members of the House of Representatives and group of taxpayers lacked standing to challenge military operations in Libya);

Doe v. Bush,

323 F.3d 133, 135 (1st Cir. 2003)

(dismissing as unripe complaint by active-duty members of the military, parents of military personnel, and members of the U.S. House of Representatives seeking injunction against initiation of war against Iraq and challenge to the constitutionality of a 2002 authorization for use of military force);

Campbell v. Clinton,

203 F.3d 19 (D.C. Cir. 2000)

(affirming dismissal of suit by thirty-one Members of Congress challenging the legality of the air campaign in Yugoslavia),

cert denied,

531 U.S. 815 (2000)

;

Conyers v. Reagan,

765 F.2d 1124, 1125 (D.C. Cir. 1985)

(dismissing as moot suit by eleven Members of the House of Representatives challenging as unconstitutional the 1983 military invasion of Grenada);

Sanchez-Espinoza v. Reagan,

770 F.2d 202, 210 (D.C. Cir. 1985)

(dismissing as nonjusticiable political question claim by Members of Congress that executive branch officials assistance to “Contra” forces in Nicaragua violated the Declare War Clause);

Crockett v. Reagan,

720 F.2d 1355, 1357 (D.C. Cir. 1983)

(affirming dismissal of suit by twenty-nine Members of Congress challenging the legality of the United States’ presence in, and military assistance to, El Salvador as presenting nonjusticiable political questions).

16

See sources cited supra note 15.

17

See .

18

See .

19

See .

20

See .