Article I, Section 8, Clause 11:

[The Congress shall have Power . . . ] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; . . .

The Declare War Clause is a central element of Congress’s war powers and its meaning is among those most heavily debated.1 The Supreme Court has observed that only Congress has the power to declare war,2 but the implications of this exclusive assignment are not well-settled. In particular, the relationship between Congress’s power to declare war and the President’s war powers granted under Article II of the Constitution is a subject of significant disagreement.3

The first draft of the Constitution considered in Philadelphia in 1787 would have given Congress the power to “make war,” but the Framers substituted the word “declare” in what James Madison described as an effort to ensure that the President was empowered to repel sudden attacks.4 Under Congress’s interpretation of the Constitution, the President may introduce troops into hostile circumstances if Congress has (1) declared war, (2) specifically authorized the President to use force, or (3) there is a national emergency created by an attack on the United States or its territories.5 The executive branch claims much broader authority and asserts that the Constitution empowers the President to initiate and engage in many types of military action without congressional authorization.6

While this interbranch debate remains active, other questions concerning the Declare War Clause have been settled by longstanding practice and judicial opinions. For example, the Supreme Court has recognized that Congress need not issue a formal declaration of war to authorize the United States to engage in military action.7 Congress also can, by statute, authorize the President to use force within defined parameters that do not rise to the level of a general declaration of war.8 The United States has issued declarations of war against eleven countries during five conflicts, but it has not formally declared war since World War II.9 As a result, statutory authorizations have become the predominant method for Congress to permit military action since the Second World War.10

The Supreme Court has also observed that the Declare War Clause confers broad authority upon Congress to pursue the war effort.11 “The power to Declare War,” the Supreme Court stated in 1870, “involves the power to prosecute it by all means and in any manner in which war may be legitimately prosecuted.” 12 In line with this interpretation, Congress has enacted an extensive set of statutes that trigger a host of special wartime authorities concerning the military, foreign trade, energy, communications, alien enemies, and other issues if Congress declares war.13

Footnotes

1

See .

2

See, e.g., The Prize Cases, 67 U.S. (2 Black) 635, 668 (1862).

3

In 1836, then-Congressman and former President John Quincy Adams wrote that the “respective powers of the President and Congress of the United States, in the case of war with foreign powers are yet undetermined. Perhaps they can never be defined.” John Quincy Adams, Eulogy on the Life and Character of James Madison 47 (1836). More recently, in a 1971 hearing before a Senate subcommittee, then-Assistant Attorney General (and later-Chief Justice of the Supreme Court) William Rehnquist described the separation of war powers as “the most difficult area of the Constitution[.]” Executive Impoundment of Appropriated Funds: Hearing Before the Subcomm. On Separation of Powers of the S. Comm. on the Judiciary, 92d Cong. 251 (1971) (statement of W. Rehnquist).

4

See .

5

See War Powers Resolution, Pub. L. No. 93-148 § 1(c), 87 Stat. 555 (1973) (codified at 50 U.S.C. § 1541(c)). For background on the 1973 legislation in which Congress articulated its interpreted the President’s war powers, including constitutional concerns with the legislation, see .

6

See, e.g., April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities the President, 42 Op. O.L.C., slip op at 3 (2018), https://ch75o04ir6.proxynodejs.usequeue.com/olc/opinion/file/1067551/dl ( “[T]he President, as Commander in Chief and Chief Executive, has the constitutional authority to deploy the military to protect American persons and interests without seeking prior authorization from Congress.” ).

7

See .

8

See id.

9

The United States declared war upon Great Britain in the War of 1812; Mexico in the 1846 War with Mexico; Spain in the 1898 Spanish-American War; Germany and Austria-Hungary in the First World War; and Japan, Germany, Italy, Bulgaria, Hungary, and Rumania (now Romania) in the Second World War. See ArtI.S8.C11.7 Supreme Court Jurisprudence and Interbranch Practice ( through .

10

See .

11

See, e.g., Lichter v. United States, 334 U.S. 742, 780–82 (1948); Miller v. United States, 78 U.S. (11 Wall.) 268, 305 (1870); .

12

Miller, 78 U.S. at 305.

13

Jennifer K. Elsea & Matthew C. Weed, Cong. Rsch. Serv., RL31133, Declarations of War and Authorizations for the use of Military Force: Historical Background and Legal Implications 44-68 (2014), https://dlwdew2ydb.proxynodejs.usequeue.com/product/pdf/RL/RL31133/17.