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; . . .

Shortly after the September 11, 2001 terrorist attacks on the United States, Congress passed and President George W. Bush signed into law a joint resolution authorizing the President to use force against the nations, organizations, and persons the President determines were responsible for the attacks.1 The Bush Administration initially requested that Congress provide broader authorization to use force “to deter and pre-empt any future acts of terrorism or aggression against the United States[,]” but that language was not enacted.2

The Bush Administration did not view congressional authorization as necessary for its post-September 11 invasion of Afghanistan and other military actions. 3

. In late September 2001, the Office of Legal Counsel (OLC) in the Department of Justice opined that the President already possessed independent constitutional authority to respond to the terrorist attacks.4 In OLC’s view, the joint resolution “confirmed” the President’s power, but was narrower than the constitutional authority under Article II that the President already possessed.5 Although Congress declined to adopt the proposal for a more comprehensive authorization to address future attacks, OLC opined that such congressional authorization was not legally necessary because Article II of the Constitution provided the President plenary authority to “pre-empt . . . terrorist threats from new quarters.” 6

The Bush Administration OLC also opined that the Declare War Clause does not constrain presidential power or prohibit the President from initiating a full-scale war without a declaration of war or congressional authorization.7

( “Congress’s power to declare war does not constrain the President’s independent and plenary constitutional authority over the use of military force.” ). This conclusion marked a departure from earlier OLC opinions, which analyzed whether proposed military actions were of a such a significant scale that they could rise to the level of a war, which only Congress has the power to declare.8 During the Obama and Trump Administrations, OLC reverted to the executive branch’s earlier interpretation that the Declare War Clause limits presidential power, at least in the case of a full-scale war with another country.9

As discussed in other essays, the Supreme Court also curtailed some of the Bush Administration’s conduct of its post-September 11, 2001 actions, particularly in the context of detainees and military trials.10

Footnotes

1

Pub. L. No. 107-40, 115 Stat. 224 (2001). See also .

2

147 Cong. Rec. 18215 (2001).

3

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

25 U.S. Op. O.L.C. 188, 212–14 (2001)

.

4

Id. at 212–13

.

5

Id.

6

Id. at 213

.

7

Id. at 193

( “Congress’s power to declare war does not constrain the President’s independent and plenary constitutional authority over the use of military force.” ).

8

See, e.g.,

Deployment of United States Armed Forces into Haiti,

18 U.S. Op. O.LC. 173, 179 (1994)

(concluding that the deployment of forces into Haiti did not interfere with congressional authority because the action did not rise to the level of a war within the meaning of the Declare War Clause based on its “anticipated nature, scope and duration” );

Proposed Deployment of United States Armed Forces into Bosnia,

19 U.S. Op. O.LC. 327, 331–32 (1995)

(concluding that introduction of ground troops into Bosnia did not amount to “‘war’ in the constitutional sense” ).

9

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

42 Op. O.L.C., slip op. at 3 (2018)

;

Authority to Use Military Force in Libya,

35 Op. O.L.C., slip op. at 4, 22 (2011)

. 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.

10

See ; ; .