“When war is thrust upon the nation, the President had not only the authority but the responsibility to ‘resist force by force.’” –U.S. Supreme Court ruling of the Prize Cases, 1862 (67 U.S. 6335).
During the past decade of military operations combating terrorism, members of the U.S. government have thoroughly debated the power of the President and the role of Congress during a time of war. A historical review of war powers in America demonstrates the unchecked power of the executive when it comes to military decision-making and the use of force. Throughout history the power of the President to initiate, conduct, and sustain military operations without oversight has greatly increased. Through a historical lens, this essay will analyze: the expanding role and use of power of the President; weak Congressional legislative policies that empower the executive; and the Supreme Court’s role legitimizing the autonomy of Presidential war making.
Beginning with a review of constitutionally assigned roles and the intent of our forefathers, this essay will analyze the history of war powers that propelled Congress to pass the War Powers Act of 1973. Furthermore, this report will evaluate the effectiveness of the War Powers Act and whether it accomplished its purpose. In conclusion, this report provide recommendations to balance power within the three branches of the U.S. government in regards to the nation’s decision making for foreign policy and the use of force.
Background: The Need for the War Powers Act of 1973
Initially, the founders of the country were weary of the abusive nature of a strong executive; therefore, a balance of power amongst three branches of government was established. In regards to war making and the use of military force, Articles I and II clearly assigned the role for the legislative and executive branch. The Constitution gave sole authority to declare war, as well as raise and support an Army and Navy, to the legislative branch. Furthermore, Congress was granted the power of the purse. Modeled after the British Parliament’s control over the King through the control of money, the framers of the constitution created a separation of powers supported by the philosophy of Locke and Montesquieu, oversight through funding. The frames intent for these powers would enable Congress to balance the authority of the President, the Commander in Chief, and submit him to Congressional approval for the use of force.
The authority of the Judiciary—Article III—enables the Supreme Court to rule on all laws and treaties, enabling the branch to oversee and regulate the powers of war. “It is virtually impossible to discuss the national security enterprise without discussing the role of the U.S. Supreme Court.” During the 190 years from the signing of the constitution, to the War Powers Act of 1973, the influence of the Supreme Court greatly enhanced the precedent of executive powers.
Early American history demonstrates an...