Declaration of War

Jeff Renz jr167163e at
Tue Aug 30 15:26:54 PDT 2005

I'll limit this to original meaning.  The President swears or affirms that s/he will "protect and defend the Constitution" and is granted the power of Commander in Chief of the Armed Forces.  Art. II secs. 1[8], 2[1].  The United States shall . . . protect each [State] against invasion. . . ."  Art. IV, sec. 4.

The Framers were faced with a history of abuses of war-making power by past sovereigns.  Parliament on occasion, limited the war-making power of the sovereign by refusing to vote supplies to the crown.  [In 1625, for example, Parliament refused to vote supplies to Charles I who was at war with Spain.]  The English Bill of Rights, however, did not limit the power of the King to make war, except to prohibit the keeping of a standing army and to prohibit the King from raising funds from his subjects without the consent of Parliament.  Quartering of soldiers (a kind of tax on the people who quartered them, and thus a means of paying for the army) was also prohibited.

So the executive was worthy of being reined in by 1787.  But the Framers could not rein him in fully, because to deprive him of the power to defend the US against attack would leave the US open to attack from foreign powers, including the Indian tribes.  Would anyone argue that FDR could not, following the Pearl Harbor attack, direct the army and navy to find the Japanese fleet and sink as much of it as possible, prior to Congress's declaration of war?

In light of his power as CinC and his power and duty to protect against invasion, the President has a limited war making power.  S/he may defend the US against an actual, imminent, or threatened invasion.  S/he may probably defend US territory and citizens against an actual, imminent, or threatened attack, since that would often involve an attack upon members of the US armed forces, triggering the CinC power.

In contrast, the President cannot use war to advance his or her view of national interests, that is to say as a foreign policy tool, whether pursuant to a UN resolution or not, without the consent of Congress.

So, if Pres. Chavez were planning an attack American territory, yes, the President could constitutionally order his assassination or, to put it in a less flammatory way, the President could order a pre-emptive strike on the CinC of Venezuela's armed forces in order to prevent an attack on the US.  If, on the other hand, Pres. Chavez decided to turn off the oil spigot, the President has to go to Congress.

In any event, Congress always holds the cards or, more precisely, the purse strings, since it may decline to fund, or fully fund, the armed forces.  This, however, takes courage, which is a power that Article I failed to confer upon Congress.

Prof. Jeffrey T. Renz
School of Law
The University of Montana
Missoula, Montana  59812
jeff.renz at
-------------- next part --------------
An HTML attachment was scrubbed...

More information about the Conlawprof mailing list