War Powers and the Supreme Court
War powers in the United States refer to the constitutional authority shared between Congress and the President regarding the initiation and conduct of military action. Article I, section 8 of the U.S. Constitution grants Congress the exclusive power to declare war, while Article II, section 2 designates the President as the commander in chief of the armed forces. Historically, the U.S. has engaged in only five formally declared wars, yet military interventions have exceeded two hundred instances, often conducted without a formal declaration. The Supreme Court has played a critical role in interpreting the balance of war powers, recognizing Congress's authority to authorize military action through both formal declarations and legislative measures, as seen in cases like *Bas v. Tingy* and the *Prize Cases*.
Significant Supreme Court decisions have reinforced presidential authority in foreign affairs, suggesting a broad interpretation of executive power in the context of national security. This dynamic has become increasingly complex, particularly following World War II, as the U.S. transitioned into a global superpower with a permanent military presence. The War Powers Act of 1973 was established to regulate presidential military actions, yet it has sparked ongoing debates about its relevance and the president's discretion in military engagements. Overall, the interplay between legislative and executive powers concerning war remains a contentious and evolving issue in American governance, reflective of changing security needs and political landscapes.
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Subject Terms
War Powers and the Supreme Court
Description: The constitutional and political authority to protect the nation from its enemies and to place U.S. military forces abroad in hostile situations.
Significance: The vagueness of the parts of the Constitution dealing with war powers caused the president and Congress to disagree about their interpretation. The Supreme Court ruled on a number of cases involving the legitimate use of military force in foreign lands.
Article I, section 8 of the U.S. Constitution grants Congress the power to tax and spend for the common defense, to declare war, to raise and support armies and a navy, and to make rules for the government of such forces. The Constitution (Article II, section 2) makes the president commander in chief and gives him or her the power to make treaties and appoint ambassadors with the advice and consent of the Senate. Although Congress has the power to declare war, from the nation’s beginnings, presidents have claimed the authority to place military troops abroad and to wage war. The United States has been involved in only five declared wars: the War of 1812, the Mexican-American War (1846-1848), the Spanish-American War (1898), World War I (1917-1918), and World War II (1941-1945). Of those, only the War of 1812 was actively debated by Congress before a formal declaration of war was made. Nevertheless, military troops have been deployed more than two hundred times in various military actions abroad.
In Bas v. Tingy (1800), the Supreme Court recognized that Congress could authorize war both by a formal declaration and by passing statutes that recognized a state of “limited,” “partial,” or “imperfect” conflict. A sharply divided court upheld President Abraham Lincoln’s blockade of Confederate ports in the Prize Cases (1863), stating that while Lincoln did not have the power to initiate a war, he did have the authority to meet force with force without any special legislative authority. The Court gave further support to presidential power in the conduct of foreign affairs in United States v. Curtiss-Wright Export Corp. (1936) and United States v. Belmont (1937), asserting that the president was the sole representative of the nation in its foreign relations and affairs.
The aftermath of World War II saw the rise of the United States to world power status and the development of permanent standing armies, factors not anticipated by the Framers of the Constitution. Beginning with the administration of President Franklin D. Roosevelt, presidents have argued for an expansive reading of the executive war powers to meet the needs of national security in the nuclear age. With few exceptions, the federal courts have been unwilling to involve themselves in the conflict between the legislative and executive branches over the exercise of war powers, calling the issue a political question and inappropriate for judicial resolution. Central to the war powers debate has been the legality and applicability of the War Powers Act of 1973, which sets time and communications requirements upon any military troop deployment by the president. In response to the Iraqi War of the early twenty-first century, many members of Congress have argued that the War Powers Act must be revisited, and discussions are necessary as to the extent to which the president can make decisions about military campaigns.
Bibliography
Dirck, Brian R. Waging War on Trial: A Handbook with Cases, Laws, and Documents. Santa Barbara, Calif.: ABC-Clio, 2003.
Ebright, Katherine Yon. “Curb the President's War Powers to Prevent Future Iraqs.” Brennan Center for Justice, 23 Mar. 2023, www.brennancenter.org/our-work/analysis-opinion/curb-presidents-war-powers-prevent-future-iraqs. Accessed 5 Apr. 2023.
Ely, John Hart. War and Responsibility. Princeton, N.J.: Princeton University Press, 1993.
Fisher, Louis. Presidential War Power. Lawrence: University Press of Kansas, 1995.
Moore, James. Bush’s War for Reelection: Iraq, the White House, and the People. New York: John Wiley & Sons, 2004.
Ng, Wendy L. Japanese American Internment During World War II: A History and Reference Guide. Westport, Conn.: Greenwood Press, 2002. Comprehensive reference source on the internment years.
Woodward, Bob. Bush at War. New York: Simon & Schuster, 2002.