In the 2000 film Thirteen Days chronicling the Cuban Missile Crisis, John F. Kennedy tells General Taylor, “I’m the president of the United States, and I decide when we go to war.”

That’s how presidents have done things for decades. The problem is, that’s not what the Constitution says.

The power to “declare” war is the power to change the state of things from peace to war. While he was the Treasury Secretary, Alexander Hamilton wrote under the alias PACIFICUS that “the Legislature can alone declare war, can alone actually transfer the nation from a state of Peace to a state of War.”

Under the Constitution, Congress makes that decision. Not the President.

In Article I Section 8, Clause 11, Congress is delegated the power “to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

But when the Constitution authorizes Congress to “declare” War, what does that mean in practice?

Does it mean that only Congress can authorize military action? Does it mean that the president can order troops to attack foreign forces without approval from the legislative branch provided he doesn’t call it an act of war? Or does it mean that the president’s powers related to his role as commander-in-chief are heavily restricted to times of war, which can only be determined by Congress?

These questions have become increasingly relevant since 1941, the last time Congress officially declared a state of war. Since then, the U.S. military has fought in many conflicts around the world, but none involved a declaration of war by Congress. Instead, war has more and more been left to the discretion of the executive branch. This has drawn criticism from constitutional originalists who hold that this is a usurpation of the delegated war powers.

In his essay “Unleashing The Dogs Of War: What The Constitution Means By ‘Declare War,’ Saikrishna Prakash attempts to answer some of these questions, specifically:

  • Does Congress’s power to declare war encompass the authority to decide whether the nation will wage war?
  • Relatedly, does Congress’s power to decide whether the country will wage war extend to those situations where another nation already has declared war on the United States?

Prakash says the answer is “yes” to both questions, noting that “the Constitution’s allocation of war powers is not some dry academic dispute.”

Prakash reiterates a crucial point throughout the essay — the difference between “waging war” and “declaring war,” arguing that historically there was no distinction between the two. To wage war is to declare it. If a nation attacks another nation without a formal declaration of war, it is still a declaration of war. Formal declarations of war merely acknowledge what is already in existence.

The sticking point in parsing out the distribution of war powers between the executive and legislative branches is the designation of the president as the commander in chief of the military. This is a role that cannot be designated to anyone else. While Prakash notes that Congress’ control over military funding and the two-year restriction on appropriations serve as a check on any de facto war waged by the president, this doesn’t address the issue of whether or not the president has the constitutional right to wage war -without a congressional declaration – in the first place.

He notes that one problem is that “the Constitution merely grants Congress the power to ‘declare war,’ with little hint of what that means.” We are instead left with the historical context of what declaring war meant at the time of ratification, as well as statements made by the Constitution’s framers.

Within the different interpretations of the war powers is what Prakash calls a “pragmatist” view in which the president can wage war without congressional approval, provided that the country has already been attacked.

However, he writes that “when a nation attacks another, the victim always has choices. Will the victim respond in kind with full-scale war? Will it pursue rather pacific measures, such as a request for negotiations? Or will it pursue a third course of defensive measures, coupled with a stern ultimatum? The pragmatic view supposes that such choices do not exist.”

It’s worth noting that after the Japanese attack on U.S. naval and air forces at Pearl Harbor and other places around the Pacific Ocean, FDR in his speech the next day to Congress stated the following:

As Commander in Chief of the Army and Navy I have directed that all measures be taken for our defense.

I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7, 1941, a state of war has existed between the United States and the Japanese Empire

In other words, FDR had the U.S. forces prepared to defend themselves but asked Congress to declare a state of war. While Japan had informally declared war on the U.S. by attacking its military forces, the U.S. was still not in a declared state of war until Congress said so.

This was in keeping with the 18th-century understanding of what it meant to be at war. As Prakash writes, “If a war began with warfare, those acts of warfare were an informal declaration of war. If a war started with less hostile acts, those hostile acts were an informal declaration of war.”

This is important, because as Prakash notes:

When the Constitution uses “declare war,” the natural inference is that the Constitution incorporates the ordinary, established meaning of that phrase. This suggests that the Constitution adopted the preexisting and settled understanding that declarations of war could be formal or informal things and that hostile action might serve as declarations of war.

To reemphasize the point, declaring war and waging war were one and the same. If, for example, England engaged in acts that the French considered to be an act of war, they would regard England as being in a state of war regardless of whether there was a formal declaration by either country.

Prakash writes further:

During its war with virtually all of Europe, Republican France repeatedly regarded various hostile acts as declarations of war. In 1792, the National Assembly cited the King of Hungary and Bohemia’s support of French malcontents and his hostile preparations as a “declaration of war.” Prior to declaring war on England, a French legislator claimed that the English King had “declare[d] war” when he dismissed the French ambassador, expressed grief at the execution of Louis XVI, and demanded that Parliament appropriate funds for a larger army.

Consistent with his claim, France’s actual declaration asserted that English “acts of hostility” were the “equivalent to a declaration of war.” France’s declaration of war against Spain likewise accused Spain of declaring war by its hostilities.

Another relevant fact is that neither England nor France officially declared war against the other during the American War of Independence. Instead, the French announced to the British that they had signed a treaty of alliance with America, which the British took (rightfully so) as a declaration of war. The British had already warned the Dutch that a treaty with America would be an act of war against England.

However, like with other Constitutional debates, the most relevant context for what “declare war” meant is what the people who gave it legal force thought about it.

Prakash writes that “there is no evidence that anyone, either in Philadelphia or in the states, read ‘declare war’ in the Constitution as authorizing Congress to do no more than issue formal declarations of war. To the contrary, there is again much evidence supporting the idea that to start a war was to declare war. And there is much evidence for the derivative proposition that Congress, and not the President, would decide whether the nation would wage war.”

One important piece of historical evidence is the Federalist Papers. In No. 44, James Madison wrote that states could issue letters of marque and reprisals only after Congress authorized it through a declaration of war.

Chief Justice John Marshall’s majority opinion in Talbot v. Seeman states that “[t]he whole powers of war . . ., by the constitution of the United States, [are] vested in Congress.”

In other words, only Congress has the constitutional authority to not only declare war in an official proclamation but also authorize actions that either are tantamount to waging war or declaring war. That includes what another nation would consider to be an act of war.

Moreover, it also means that Congress cannot legislate or delegate its authority to declare war to the executive branch.

Needless to say, this significantly restricts the president’s power compared to what is considered permissible today.

At a time when the U.S. has consistently invested billions of dollars toward the military defense of one country against another, one of Prakash’s more pertinent passages states that “another measure regarded as a declaration of war was aiding an enemy of a warring nation when there was no pre-existing obligation to do so.”

John Jay, the First Chief Justice of the United States, summed it up, “Until war is constitutionally declared, the nation and all its members must observe and preserve peace, and do the duties incident to a state of peace.”

TJ Martinell