Website of Dr. Almon Leroy Way, Jr.

Page Seven



Almon Leroy Way, Jr.


1. Hamilton's View of Presidential War-making Power

The foregoing review of the history of presidential behavior in the arena of international politics indicates that U.S. presidents have demonstrated a strong tendency to adhere to and act in accord with Alexander Hamilton's expansive view of the scope of presidential war-making authority under the U.S. Constitution. American presidents have been and are strongly inclined to apply to the fullest extent Hamilton's belief that--

    "... it is the peculiar and exclusive province of Con- Congress, when the nation is at pease, to change that state [of peace] into a state of war ... [but] when a foreign nation declares or openly and avowedly makes war upon the United States, they are then by the very fact already at war and any declaration on the part of Congress is nugatory; it is at least unnecessary." [Quoted in James Grafton Rogers, WORLD POLICING AND THE CONSTITUTION (Boston: 1945), p. 36.]

2. The Power of Congress to Declare War

While Article I, Section 8, of the U.S. Constitution provides that "The Congress shall have Power ... To declare War," neither Clause 11 nor any other provision of the Constitution states in so many words that Congress must pass a declaration of war before the President can legally order the nation's military forces into foreign hostilities. Even after the President has ordered the troops into conflict, he is not required by any clause of the Constitution to request a congressional declaration of war. Moreover, the absence of such a declaration does not tie the President's hands in the conduct of the war, as long as adequate appropriations for raising, supporting, maintaining, and transporting the military forces and otherwise funding the war effort are forthcoming from Congress.

The objective of the Founders in incorporating Clause 11 into the Constitution was to give to Congress a power which, in Great Britain, was constitutionally vested in the Monarch during the days when the King or Queen was the real head of the executive branch of government and the modern system of British parliamentary government had not yet evolved. Granting to Congress exclusive decision-making authority regarding whether the nation, at any given time, is officially at war with one or more foreign powers has never been practical, not even in the early days of the American Republic, before the advent of modern military technology, with the availability of means of rapid movement and deployment of military personnel, arms, and equipment. Such an allocation of war-making power happens to be considerably less practical in the contemporary era than it was during the late eithteenth and early nineteenth centuries. My study of study of military and diplomatic history has led me, slowly and reluctantly, to the conclusion that the eithteenth-century British Constitution properly vested the power to declare war in the Chief Executive--i.e., the Crown, before the emergence of modern parliamentary government. [Today, the Monarch, now the symbolic and ceremonious Chief of State, symbolically and ceremoniously wields the power to declare war, after the real executive authority, the Prime Minister and Cabinet, has symbolically and ceremoniously "recommended" such a declaration. In reality, the "recommendation" is an order or command, rather than a request or suggestion. Thus, the real decision-making power regarding matters of war and peace is in the Prime Minister and Cabinet, enjoying the support and confidence of a majority in the House of Commons, the popularly elected chamber of Parliament.]

The realities associated with war between sovereign states and between opposing coalitions of sovereign states render a nation's legislature ill-suited for determining when, in fact, the nation is at war and therefore military action must be immediately taken. What has been the consequence of this? U.S. presidents, when facing foreign threats or potential threats to American national interests, have tended to function as Hamiltonian or ultra-Hamiltonian presidents. Throughout our history under the Constitution, and especially during the contemporary era, presidents have been inclined to--

    Ignore the constitutional power of Congress to declare war;
    Seek to develop an independent presidential war-making power, i.e., a presidential war-making power not legally dependent for its exercise on a congressional decla- ration of war.

In seeking to develop an independent war-making power, not only have American presidents tended to adopt Hamilton's expansive view of the scope of the Chief Executive's constitutional authority and go to the very limits of that view in putting it into practice, they also have tended to go beyond the limits.

For the most part, presidents have been successful in this endeavor to assume an independent war-making power, pulling it off without causing major constitutional crises. In the case every war the U.S.A. has fought, the President, not Congress, was chiefly responsible for the nation's participation in the war.

3. The President's Use of Article XLIII of the U.N. Charter

The President's claim to an independent war-making power has been advanced primarily on the basis of a very broad construction, or interpretation, of his constitutional authority as Commander-in-Chief of the Armed Forces and as custodian of the executive power of the national government. However, development of this independent war-making power also has been futhered and its legitimacy enhanced by U.S. membership in the United Nations and by the ensuing obligations incurred by the U.S.A. under the United Nations Charter. On particular occasions since the close of World War II, the President has ordered U.S. military forces into foreign conflict abroad, acting not under the authority of a congressional declaration of war, but under that of a U.N. Security Council resolution passed under Article XLIII of the U.N. Charter, which provides:

    Section 1:
    All Members of the United Nations, in order to con- tribute to the maintenance of international peace and security, undertake to make available to the Security Council, on its call and in accordance with a special agreement or agreements, armed forces, as- sistance, and facilities, including rights of pas- sage, necessary for the purpose of maintaining in- ternational peace and security.
    Section 2:
    Such agreement or agreements shall govern the num- bers and types of forces, their degree of readi- ness and general location, and the nature of the facilities and assistance to be provided.
    Section 3:
    The agreement or agreements shall be negotiated as soon as possible on the initiative of the Security Council. They shall be concluded between the Secu- rity Council and Members or between the Security Council and groups of Members and shall be subject to ratification by the signatory states in accord- ance with their respective constitutional processes.

When the Korean War broke out in 1950, it was under Article XLIII of the U.N. Charter that the U.S.A. entered the war. Ordering U.S. air, naval, and ground forces to Korea, President Harry S. Truman announced that he was taking this action under the authority of a United Nations resolution approved by the Security Council, pursuant to Article XLIII of the U.N. Charter. The U.N. Security Council resolution, adopted on June 27, 1950, provided:

    "The Security Council,
    "HAVING DETERMINED that the armed attack upon the Republic of Korea by forces from North Korea con- stitutes a breach of the peace.
    "HAVING CALLED FOR an immediate cessation of hos- tilities, and
    "HAVING CALLED UPON the authorities of North Korea to withdraw forthwith their armed forces to the 38th. parallel, and
    "HAVING NOTED from the report of the United Nations Commission for Korea that the authorities in North Korea have neither ceased hostilities nor withdrawn their armed forces to the 38th. parallel and that urgent military measures are required to restore in- ternational peace and security, and
    "HAVING NOTED the appeal from the Republic of Korea to the United Nations for immediate and effective steps to secure peace and security,
    "RECOMMENDS that the Members of the United Nations furnish such assistance to the Republic of Korea as may be necessary to repel the armed attack and to restore international peace and security in the area."

Through diplomatic negotiation--the constitutional function of the executive branch of the U.S. national government--the President managed to obtain from the U.N. Security Council a resolution authorizing the U.S.A. and other member-states of the United Nations to enter the Korean War on the side of the non-Communist government of South Korea and against the Communist regime in North Korea. The U.N. resolution legitimized President Truman's decision-making and action whereby he brought the U.S.A. into the Korean War and did so without going before Congress to request a declara- tion of war. Pursuant to a decision of the U.N. Security Council, procured by Executive diplomacy, America entered a war which lasted three years and in which U.S. participation was never sanctioned by a congressional decla- ration of war.

When the Persian Gulf War broke out in 1991 and President George W. Bush ordered U.S. military forces into the conflict against Iraq, he acted, in part, under Article XLIII of the U.N. Charter and U.N. Resolution 678, which called on the member-states of the United Nations to come to the defense of Kuwait and employ "all means necessary" to drive the Iraqi invaders from that country. In 1994, President Clinton acted under Article XLIII and U.N. Resolution 940 when he committed U.S. troops to spearheading a 28-nation multinational force which occupied Haiti for the purpose of reestablishing order in that country and restoring Aristide to its Presidency.

4. The President's Use of the Joint Congressional Resolution

President Dwight D. Eisenhower, like Harry Truman, was an innovator in the continuing effort to develop an independent presidential war-making power. Eisenhower's innovation was utilization of the joint congressional resolution, short of a declaration of war, as a means of enhancing the President's discretionary decision-making and action-taking authority, as regards sending American troops into military conflict abroad.

What is a joint congressional resolution? It is very similar to a legislative bill passed by Congress. To go into effect as American law, a joint resolution, like a legislative bill, must (1) be approved by a majority in each of the two houses of Congress and then be consented to and signed by the President or (2), after a presidential veto (i.e., the President's refusal to give consent to and sign the measure), be repassed by a two-thirds vote in each house, thereby effecting a congressional override of the executive veto.

    [NOTE: An exception to the requirement of the Presi- dent's consent and signature is a joint congressional resolution passed by a two-thirds vote in the Senate and in the House of Representatives and proposing an amendment to the U.S. Constitution. A constitutional amendment proposed by Congress is not submitted to the President for his formal-legal consideration and approval. Rather, it goes to the fifty states for their consideration, and if ratified by three-fourths of them, becomes a part of the Constitution.]
    [NOTE: A joint resolution is to be distinquished from a concurrent resolution, which does not require the President's formal-legal approval. A concurrent resolution goes into effect when approved by simple majority vote in each of the two chambers of Con- gress.]

In 1955, President Eisenhower sought and obtained from Congress a joint resolution which, though not a declaration of war, afforded the President wide discretion to take military action off the coast of mainland China in order to protect Formosa (Taiwan) and the Pescadores Islands from Chinese Communist aggression. The Formosa Resolution authorized the President "to employ the Armed Forces of the United States as he deems necessary for the specific purpose of securing and protecting Formosa and the Pescadores against armed attack." In passing this resolution, Congress, without going so far as to formally declare war against Communist China, delegated to the President longterm discretionary authority to engage the U.S. Armed Forces in conflict with Chinese Communist military forces whenever, in his opinion, the latter threatened the security of Taiwan and the smaller offshore islands belonging to Taiwan.

President Eisenhower resorted to the same device in the Middle Eastern crisis of 1956. He requested and obtained from Congress a joint resolution authorizing him to employ, as he judged necessary, U.S. military forces in the "general area" of the Middle East to counter "overt armed aggresssion" on the part of "any nation controlled by international Communism."

In 1964, when President Lyndon B. Johnson ordered air strikes against North Vietnam and thereby further escalated U.S. involvement in the Vietnam War, he recommended and Congress passed a joint resolution which, in sweeping language, authorized the President "to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression." The Gulf of Tonkin Resolution declared that--

    "... the United States is ... prepared, as the President determines, to take all necessary steps, including the use of armed force to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom." [House Joint Resolution 1145, August 7, 1964.]

The resolution provided that it would remain in force until the President determined that--

    "... the peace and security of the [Southeast Asia] area is reasonably assured by international condi- tions created by the United Nations or otherwise, except that it may be terminated earlier by concur- rent resolution of Congress." [House Joint Resolu- tion 1145, August 7, 1964.]

In 1991, during the Persian Gulf War, President Bush, like his predecessors Dwight Eisenhower and Lyndon Johnson, resorted to the joint-congressional- resolution device (1) to enhance the legitimacy of presidential action to involve the U.S.A. in a situation of foreign hostilities and (2) to give the President a free hand in directing and conducting U.S. participation in the war. In response to Iraq's August 2, 1990, invasion of Kuwait and the November 29, 1990, U.N. Security Council resolution (U.N. Resolution 678) calling on U.N. members to assist Kuwait and authorizing them to use "all means necessary" to expel Iraqi forces from Kuwait, President Bush recommended to Congress a joint resolution authorizing him to employ U.S. military forces against Iraq. On January 12, 1991, Congress passed the Persian Gulf Resolution, which, in phraseology barely short of a formal declaration of war against Iraq, put the congressional stamp of approval upon U.S. participation in offensive operations in the Persian Gulf War and afforded the President wide discretion in his use of U.S. Armed Forces in the Persian Gulf region. Four days later, after expiration of the U.N. Security Council's deadline for Iraq to withdraw its forces from Kuwait, President Bush gave the orders and "Operation Desert Storm"--the sustained air and missile attacks on Iraqi military targets--was launched.

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