The Law: The President's War Powers

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Potential Attack. In the early days of the Republic, the founders' system was honored, as Presidents sought congressional permission for military moves abroad−if not always formal declarations of hostility. During the so-called "undeclared war" with France between 1798 and 1800, Congress authorized naval seizures of American merchant ships going to French ports. But President John Adams went further and ordered the seizure of American ships leaving those ports as well, and the Supreme Court held that he had exceeded the intent of Congress. As Administration defenders often note, President Jefferson felt free to send naval vessels to protect U.S. ships against the Barbary pirates. Nonetheless, Jefferson carefully refused to allow his commanders to hold even captured pirate vessels until Congress had approved action "beyond the line of defense."

Later Presidents often continued to get at least some form of authorization from Congress before taking major military plunges, but their area of discretion slowly enlarged. In 1911, President William Howard Taft moved 20,000 troops to the Mexican border to protect American lives and property threatened by the Mexican revolution−but recognized congressional jurisdiction by refusing to send forces over the boundary. Presidents asked for and received formal declarations for the War of 1812, the Spanish-American War, the Mexican War and World Wars I and II.

Chasing Bandits. Even so, the Constitution does not define the difference between war and murky actions short of it. As a result, Chief Executives have felt increasingly free to undertake the military maneuvers required of a major nation. For its part, Congress did not assert authority over such actions as Theodore Roosevelt's military move into Panama in 1903 and Woodrow Wilson's willingness to do what Taft would not−send troops to chase Pancho Villa's raiders in Mexico in 1916.

Bipartisan congressional support for an anti-Communist foreign policy after World War II accelerated the trend toward presidential war power. By the time Truman dispatched troops to Korea, Ohio's Senator Robert Taft was almost alone in complaining that the President, by his undeclared "police action," had "usurped authority in violation of the laws and the Constitution." All told, it has been calculated, U.S. Presidents have ordered troops into position or action without a formal congressional declaration a total of 149 times.

Strict Construction. All this raises several fascinating questions. In the past, congressional authorizations and resolutions short of a declaration of hostilities have been sufficient for Presidents to commit troops to military actions bearing many hallmarks of full-scale war. Is there a point at which an expanding nonwar becomes a real war that must be declared in order to be legal? Congress has rarely been concerned with providing the answer. Does this mean that Congress has now effectively construed the Constitution to mean that, in military engagements, once a nonwar always a nonwar? If so, must Congress follow its own precedents?