War Powers in Brief: On the Irreducible Politics of the Matter

Roger Pilon's article, The War Powers in Brief, argues that the Founders intended to build a constitutional war powers framework that allowed as much flexibility as possible. Politics, rather than onerous constitutional structures and balances, are supposed to govern American war-making.

I don't buy his analysis that the Founding Fathers sought to retain the basic model of the English assignment of war powers (war making as an executive function and prerogative while Parliament constrained executive excesses through the power of the purse). The Constitution assigns too many specific powers to initiate war and hostile activity to Congress for Pilon's interpretation to stand.

While his dissection of the power of Congress to "declare war" is accurate, Pilon doesn't go on to analyze the remainder of the declare war clause. The entire clause reads: "[Congress shall have power] To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;" My research of the meaning and judicial interpretation of the middle section, "grant letters of marque and reprisal" leads me to believe that this eighteenth-century language is roughly equivalent to the modern-day expression "grant authority to use military force."

While declaring war is, as Pinson says in his article, a judicial declaration for both international and domestic law to put the country in a state of "perfect war," letters of marque and reprisal were authorizations for more limited acts of hostility, or what we might term today "undeclared wars" or "military actions." In other words, I contend that Congress was given the power to initiate every kind of conflict the country could possibly enter into of its own accord. This obviously leaves the necessary room for the President, as Commander-in-Chief, to respond to sudden attacks or insurrection, as the Founding Fathers intended.

Having said all of this, I do think times have changed to the point that Pinson's reading of the Constitution's war powers might be the only viable reading possible. Congress is not populated with the statesmen it was in the late eighteenth and early nineteenth centuries, and the modern need to maintain a standing military serve to strengthen the President's hand when it comes to war powers. Nevertheless, I do think a more effective constraint needs to be given to Congress than just the power of the purse. While defunding a military operation sounds like an effective check in theory, it hardly seems to work in practice, whether that be because Congress doesn't have the political will to do so or because it is impractical to not supply U.S. troops once they have been deployed to a theatre of war makes little difference.

Some codification of the 1973 War Powers Act into the Constitution might be one solution to consider.