The complexities surrounding the United States president’s war powers have come into sharper focus as legal interpretations evolve and practices shift. Michael W. McConnell, a Stanford law professor and former federal judge, emphasizes the profound implications of these changes in his recent work, “The President Who Would Not Be King: Executive Power Under the Constitution.” He argues that the Constitution’s original intent regarding war powers has been obscured by modern presidential practices.
The U.S. Constitution, ratified in 1788, establishes a framework for governance that divides power between the executive and legislative branches. Article I grants Congress the authority to declare war, while Article II assumes the president possesses all powers executive in nature. McConnell points out that this arrangement reflects a compromise made during the Constitutional Convention, which recognized the need for a swift response to military threats while also seeking to prevent any single individual from wielding unchecked power.
The shift from Congress having the power “to make war” to merely “declaring war” has significant consequences. This change allows presidents to engage in military actions without formal declarations. Since 1942, the last time Congress declared war against German allies, many conflicts have been initiated without such formalities. Instead, Congress has often resorted to passing authorizations for the use of military force, which have become commonplace.
In Federalist 25, Alexander Hamilton acknowledged that the formal declaration of war had become largely ceremonial. McConnell highlights that the Justice Department’s Office of Legal Counsel has increasingly asserted that military operations of limited scope do not require congressional approval. This interpretation raises concerns about the erosion of constitutional checks and balances, as presidents may act with greater autonomy under this expansive view of their powers.
In examining historical precedents, McConnell cites instances where presidents, including George Washington and Thomas Jefferson, exercised military discretion while still adhering to a framework of congressional oversight. He argues for an originalist understanding of war powers, suggesting that congressional authorization is essential before a president can engage in offensive military actions.
The current landscape, however, reflects a significant shift in the balance of power. Today’s presidents command large and permanent military forces, which diminishes the practical necessity of seeking congressional consent. While Congress retains the power to appropriate funds, its willingness to assert this authority has waned. The Vietnam War serves as a notable example, where congressional action ultimately curtailed U.S. military involvement.
Saikrishna Bangalore Prakash, a professor at the University of Virginia Law School, notes that Congress often tolerates a significant degree of presidential discretion in military matters. This dynamic aligns with John Locke’s definition of prerogative, where the president acts according to discretion in the absence of specific laws. The implications of this trend are profound, as it suggests a growing acceptance of presidential war-making authority.
The lesson drawn from this analysis is clear: the Constitution’s language and structure may not effectively constrain the evolving norms surrounding presidential powers. The current administration has pushed these boundaries, at times redefining what constitutes war in ways that extend beyond traditional interpretations.
As voters grapple with the ramifications of these developments, it becomes evident that the Constitution’s ability to guide presidential conduct is limited. The necessity for a president to possess a constitutional conscience, one that distinguishes between what is right and merely permissible, is more critical than ever.
In light of widespread concerns about “constitutional degradation,” as mentioned in the foreword of McConnell’s book, the prospect of renewed presidential self-restraint appears distant. The hope remains that principles of moral and prudent governance may one day re-emerge, fostering a more respectful approach to the powers of the presidency.
