What are some of the constitutional debates over the use of military force?

0:04The Constitution says that Congress may declare war. The Congress may raise and support Armies and the Navy. The Constitution also says the President is the Commander in Chief of the Armies and the Navy. We've always had an army under the Constitution because congress quickly recreated the army. It took seven or eight years before we had an navy because there just was thought we don't need a navy.

0:24But they eventually created one. There's a dispute today about how to read these to various clauses together. The founding people said that the power to declare war is essentially a power to decide whether to wage war or not. Then Congress decides whether we're going to start a war and Congress decides whether we're going to join a war, because either decision is a decision to declare war. But in the 18th century, if you attacked another nation, you had declared war without ever issuing any piece of paper. That's why the British Prime Minister, Sir Robert Walpole said, "Of late, most of our declarations have come from the mouse of cannons, not from some piece of paper." When they gave the Congress this power, they understood that the President could not start a war,

1:07because if he started a war, he'd be declaring a war. Implicitly, the President could not do that. By giving Congress the power to declare war, they were essentially saying, and the President can't start a war, nor can the Supreme Court, nor can any other federal institution.

1:22That was the understanding of Washington and his Secretary of War, Henry Knox and Alexander Hamilton and all these folks. That describes early practices. Before the war of 1812, Madison makes an address to Congress and he says, "We're in this curious position where Britain is declared war on the United States and we're at peace with them." He was describing the fact that we hadn't declared war and he couldn't do anything about it until Congress acted. Of course, Congress then declared war. Starting, I think, in the late 19th and throughout the 20th century, presidents started ordering limited use of military force. Relatedly, naval commander started using military force even without presidential authorization to rescue Americans and protect American property overseas. In the mid 1950s and '60s, presidential advisers concatenated all these episodes and said,

2:11see the President's able to use military force without going to Congress. In the Clinton administration and beyond, executive branch lawyers said, look, the Congress has the power to declare war, but we should judge our constitution not by mere words alone, but by looking at practice. If we look at practice, presidents have used various levels of military force without going to Congress.

2:33The most famous example is Truman in Korea. A massive commitment of troops without prior congressional authorization. Other people would cite Vietnam, although there was the Gulf of Tonkin resolution. Of course there were other uses of force by President Reagan and by President Clinton and by President Obama.