Since the conception of the United States through the Articles of Confederation, and later the Constitution, there has been much discussion on what powers should be bestowed to the upper echelon of government. With the Revolutionary War still fresh in the minds of the framers, and the causes for it, they exercised extreme caution in granting powers to one man and one man alone. One specific power was that of war and the ability to wage and make decisions in it. In the Constitution Congress has the power to wage war, and the president was bestowed with title commander in chief to make decisions in war time should it come. However, clear cut as the constitution may seem decades of technological, economic, political, and military advancements has made what war means different. For this argument I will be taking the CON side along with Bob Baur, because from his writing although some power has been transferred to the President much still lies in the hands of Congress even if it is not obvious.

            The decisions the President makes on waging war or conflicts are difficult ones that must happen sometimes in hours or days. In political time it is a mere snapshot that would not mesh with how Congress is designed to work. Some acts have enabled the president to engage in these spurs of the moment engagements, but importantly they remain obscure enough to allow Congress to make moves from behind the curtain. These “hidden” powers are things like pressuring the president through public, or public support with hidden bills limiting the time of deployment or engagement. No matter what the president does in waging war (constitutional or not) the congress as of this paper has the ability to adjust how and if that war is waged making the usurpation of one power somewhat meaningless.

For this debate, I am taking the side of Bob Baur in his CON argument. In his argument, he claims that no one branch of government holds more power in regard to wartime function. He looks at specific case studies and also draws on historical analysis of early presidents and their views on the matter. The main reason that I agree with his analysis is that regardless of the way a president uses wartime powers, they will always be held accountable by Congress. There are two main reasons that are why I believe this to be the case..

First and foremost, there are numerous historical examples of congress responding to the executive’s wartime powers that further limit the president’s power. The examples that Baur brings up in his argument are proof of the “subtle, yet tangible, ways” congress interacts and influences the president’s military action. We can also see that throughout history, there have been differing levels of dominance over wartime actions between congress and the executive. This will largely tie into my second reason, as it highlights the extremely complicated circumstance of wartime actions. You see, most times that the president utilizes wartime powers are when time is of the essence. Many instances call for immediate action and the executive has to be able to make its decision as soon as possible. If the executive is apparently abusing or usurping wartime power from congress, why does congress have the multiple tools at its disposal to hold them accountable? Lastly, individuals who believe that the executive is using its power in a way the framers did not intend need to just look at Thomas Jefferson’s presidency. Upon analyzing the framer, you can see he used unilateral military action numerous times throughout his presidency due to the circumstances. Hopefully, what I have brought up is enough to highlight the complicated relationship between the executive and congress in regard to wartime powers. It is not a simple discussion and when one really looks into it, you can see the evidence for a deeply complex relationship that changes over time. There is not one branch of government that simply overpowers the other in military affairs.

The Constitution is an open and broadly interpreted document but is also what would be considered a living document. A good way to better understand this open to interpretation aspect of the document is that the constitution is like a circle. You can move and read within those spaces but there’s still a border, a rim, a limiting factor. When reading into the document, you can read in those spaces but you can’t read inside it and then end up pushing outside the circle. There’s still a form of limitations to interpretation, it is open, not limitless. The President has gained more power and has the ability to enact military power overseas. This is due to the fact that the President is within the branch that is given the ability to do so. The ability to conduct war and the ability to declare are separated aspects of the government that are meant to act as a checks and balance, allowing limitations and coordination requirements. 

During the creation of the constitution, there was never the thought of where we would be in the current day. So much has changed and the very world is something entirely foreign them. The interconnectivity of each nation has become something that is now a requirement rather than an option. What the Founding Fathers were able to hold in foresight was that the nation would continue to grow and interact with others, keeping to a basic foundation allowed for more flexibility over time. The separation of powers would allow the continued existence of the nation through releasing the ability to control the military and declare war powers. This simple divide would ease any corruptive attempts to abuse the system and unleash the nation’s might onto whoever Congress or the President might have quarrels with. Instead the President is Commander in Chief, able to dispatch the military at his own call, though not immune to public image decay or Congressional disapproval. There is the catch that it must be in defense though and not in direct opposition through aggressive action. The degree of power unleashed though and involvement might be seen as offensive but it can be argued that it is still defensive if it is to protect American assets. Such loopholes in the War Powers Resolution are what allows the President to still take action even when Congress holds no stance or is still debating through one. 

It is often noted that the Constitution is a form of living document, growing with time and the changing requirements of society. However, this is not a reason to break from appropriate precedence and understanding. From the onset, the constitution has been understood to delineate war powers between the branches of government. The Commander in Chief is tasked with directing and producing policy to guide the armed forces only after Congress has issued a decision to declare war on a foe or enact wartime powers. Without initiating these wartime powers, the President of the United States is merely the head of the executive branch, not yet titled Commander in Chief. Without these powers being granted to him, the President simply has no authority over the armed forces.

The path toward the executive office’s thievery of the power to declare war from Congress was a very slippery slope. A caveat in the rule was established that the Executive would be allowed to take immediate action when the United States was in danger. What was left ambiguous was what exactly could be considered the United States. Since its inception America had largely been isolationist, concerning itself with its own continent. This was solidified in the Monroe Doctrine. This document called for other world powers to refrain from encroaching upon the American hemisphere. This position dissolved at a time when the world was more connected than at any other point in history. As America entered the world stage a tangled web of alliances bound the globe together and polarized the world into us and them. A view of the world through this lens is simply not literally accurate. We are not us, an all-inclusive term that includes our allies, we are the U.S., an acronym denoting our solitary nation. An attack on or threat to our allies does not constitute an attack on the United States and so does not call for an immediate response from the Executive to defend our nation and constitution. An attack on an ally is an attack on a foreign nation with which we have a treaty of mutual defense. A treaty is ratified by Congress and so enforcement should be reviewed by Congress as well.

When we developed our constitution communicating meant sending a messenger to ride for several hours, perhaps days, before the message could be delivered and a response would take just as long. Mobilizing troops was a matter of walking or riding horseback to the location the army was needed. In these circumstances every moment counts and sending the first messengers to round up Congress instead of the military is nonsensical. In our modern time, Congress can be roused with a phone call and on a face-to-face zoom meeting in five minutes time. These luxuries allow us to call for more congressional oversight of our military endeavors, not less, especially when many of our defenses are practically automated. A missile defense system hardly needs to await a Presidential order before grounding a missile on its way to the mainland, or at least I hope this is the case.

As a result of the copious conflicts which the US has found itself mired in since the end of World War Two, many have looked for someone to blame for the chaotic and most-often deleterious conflicts. People often turned to the president who, as a result of the expansion of the office since FDR, has accrued power in many areas, including that of military capability. One must be careful, however, not to take this expansion of power for a usurpation of Congress’ powers. To do so would be to define Congress as an unwilling and unwitting participant in the exchange, whereas Congress was very much complicit in expanding the president’s capabilities, yet still holds tremendous power over the president’s power to make conflict.

The world has changed dramatically since the inception of the president’s role as Commander-in-Chief. Whereas war was once something which, though destructive, could be approached with a fair amount leisure with the benefit of time, with the coming of the nuclear age the importance of the decision-making process (and the time involved) was exacerbated. The president is in an utterly-unparalleled position to understand and respond to conflicts, and the efforts taken throughout the 20th Century in order to expand the Executive’s power by both them and Congress recognized this. With this in mind, Congress still has an immense amount of power over how the president operates themself in relation to war, as Bauer points out. To look at the record and point to the few times over the past century where the president overstepped their bounds is to ignore the numerous other times when Congress’ influence kept things in check. Nixon, Reagan, Bush, and Trump all had instances where they potentially could have moved into deadly conflicts, but Congress’ constitutional power over war, equipped with the power to defund or outright end conflicts, kept things in check. If the president truly had a monopoly over war, the United States could very well have found itself in far more conflicts than we did.

Often, those who wish to usurp the Constitution argue that the document is vague and open to interpretation. This may very well be the case in some respects, particularly in the protection of citizens’ rights. The framers did not foresee specific populations which would require protections not directly stated in the original document. However, the framers incorporated a language easily read as malleable in those cases. However, the language used when crafting the separation of powers among the judicial, legislative, and executive branches is not vague or lacking in precise meaning, especially when discussing the President’s role as Commander and Chief.

The founding fathers intended for congress and congress alone to have the power to declare war. This was done because they (the founders) understood the gravity of a decision that would impact every level of society and needed to have an opportunity for robust debate among the people’s representatives. This was a direct effort to avoid vesting the power to engage the nation in armed conflict with another nation at the whims of a chief executive. The design of the Constitution was to balance the nation’s powers among the coequal branches of government and avoid the potential for a chief executive to usurp power and bring in a reign of military despotism.

The founding fathers, in their wisdom, also recognized that if the nation were suddenly under attack, the consultation of congress to declare war would make the nation vulnerable to the immediacy of the threat. Thus, they granted the President the ability to assume the role of Commander and Chief in the direct defense of an unexpected offensive move from an enemy. Otherwise, the assumption of the Commander and Chief was only to be used after congress declared war. It was never intended that the President could engage in offensive military action without the consultation of congress.

How did we arrive at the current unconstitutional position of the President’s role in directing military actions he deems “short of” an official declaration of war? As with the changes in the executive branch’s role that occurred within the age of the modern Presidency, they began in stages and usually under the influence of a cataclysmic event. After witnessing the workarounds FDR used to push his war policies, Truman pushed the envelope even further with his unilateral engagement in Korea.

Once a President engages a particular power and is not challenged by the judiciary or congress, it emboldens that President and those that follow to push the envelope even further. Thus, over time presidents throughout the Cold War exercised unconstitutional powers to engage the U.S. military in actions that should have required congressional approval. In later years the horrors of 9/11 witnessed the President expand powers even further under the auspices of his role as Commander and Chief, and incursions into the rights of the citizenry occurred. It is worth noting that while congress authorized military action after 9/11, the language in the authorization act was typically vague and open to interpretation.

When the restraints of Presidential power are written in vague legalese, it is not surprising that the executive branch will interpret those directives in a light that grants them the most power and flexibility. This was not the intention of the founders. The founders understood the tendency for individuals to seek higher levels of power and authority, which is why they strictly limited the role of the President to Commander and Chief. The movement toward increased powers and flexibility in the office has led to decreased freedoms and foreign engagements without consultation of congress. For the United States government to return to a balanced government, the legislature must retake the powers of war from the President.

In the Constitution, the founders attempted to enumerate and assign powers to different branches of government in order to ensure the separation of power and the ability for one branch to check another. One of the areas that the Constitution is very clear to separate is the power to declare war versus the power to conduct war. This measure was taken with good reason. However, over the decades Presidential power expansion, public fear have allowed for the President to usurp war powers from Congress, consolidating these powers in the Executive branch.

Article II of the Constitution gives the President control over foreign policy. Under this, the President is the Commander in Chief and given the power to direct the military in any engagement. But, the founders intended this to mean that the President could act as a first General when Congress declared war, or act flexibly if the Union was under attack. That is not how this Article has been interpreted. Under the overarching brand of National Security, Presidents have expanded their power to engage in foreign conflict without the approval of Congress. The existence of the War Powers Resolution confirms this.

The War Powers Resolution was established in order to close loopholes that the Executive Branch had used to justify armed conflict without the approval of Congress. Throughout history there are examples of when Presidents have begun conflict without Congress declaring war, or have gone behind the direction of Congress. President Truman’s deployment of troops into Korea is an example of this. This action was taken under the banner of national security, as a preventative measure. But at the end of the day, preventative wars, are still offensive wars which must have the approval of Congress! A different example in the ways that the President bypasses Congress when it comes to war powers is the Iran Contra affair. President Reagan’s administration facilitated arms dealing in Iran to fund Contras activity in Nicaragua when Congress attempted to check the power of the Executive by cutting off funding. This was within the power of Congress as the conflict in Nicaragua was not approved by Congress.

The Constituion, is vague and ambiguous. There are places where it must be interpreted by higher courts to fit with the 21st century. But it is very clear in the separation of powers when it comes to who carries out war and who may declare war. Various Presidents have expanded powers, pushed limits and normalized unconstitutional war powers. However, there is no amendment that addresses this as of yet. Congress, and Congress alone has the power to declare war. The instances where the president has acted unilaterally in offensive or “preventative” conflict, are a usurpation of Congress’ power to declare war.