Commander-in-Chief: Should the Congress send troops to war or the President?

The President of the United States has been given the power to be the Commander-in-Chief of the armed forces. 1 This power is wide and has been interpreted with the “take care” clause of the constitution which allows the president to take whatever actions he deems necessary to see that the laws are fully executed. Because this clause has been interpreted this way the President has been able to take this country to war without asking the Congress to declare war. To declare war is the Congresses power to check the Presidential Commander-in-Chief power but it has not been tested by Congress or by the Supreme Court. 2 I believe that it is inherent in the constitution that the President can not send troops to war without the permission of Congress.
The delegates to the Continental Congress were concerned with how to best handle national security and foreign affairs. They decided to give the executive the “one man control,” so that the president could act quickly and decisively to protect the nation. Some historians believe that the Commander-in-Chief clause was designed with George Washington in mind. As the General of the Continental Army he was a war hero and was a sure pick for the candidacy of President. Another important reason to give the federal government the power to defend the country came from the experience the states had in Shay’s Rebellion of 1786. Private funds had to support a militia to defend the states from the financially strapped farmers that made up Shay’s Army. This incident turns out to be one of the major reasons the states send delegates to the Second Constitutional Convention.3
The framers built an executive that could act with a “first move” capability. 4 But the president still couldn’t declare war on an enemy without the support of Congress. This was the check that the framers set up to keep the President from sending troops were ever he pleased. Unfortunately since the days of the Civil War the President had been getting away with incredible things as the Commander-in-Chief. Interpreting the “take care clause,” President Lincoln believed that he must do what ever it took to secure the government whether it was legal or not and hopped that Congress would support him afterward. Lincoln went as far as extending volunteers enlistment time, buying supplies, and suspending the writ of habeas corpus. The writ of habeas corpus protected people who spoke out against the war and those accused of spying. Lincoln simply jailed his enemies. But he did get Congress to support him after things were said and done. Even if some of the things he did were controversial, even today. 5
Modern Presidents have not received a declaration of war since 1941 for WWII. We have fought three major wars and countless smaller conflicts since then as well as the War on Terror which we are fighting right now. One could say that the US has never ceased military operations since WWII. But no one has contested the president’s power. Not the Congress or the Supreme Court. 6
In 1973 the Congress passed the War Powers Act over Richard Nixon’s veto. The War Powers Act says that the President must notify Congress within forty-eight hours of any military action. The President also has only sixty days to perform this action without an extension from Congress. Congress again has not tested the President on this. In a way the President has no check on this power because he can send troops into harms way without permission, then the Congress has little choice but to support them. 7
This is referred to as a hollow check. But I contend that the president does not have the right to do this according to the Constitution. I believe that it is inherent in the Commander-in-Chief clause that Congress is the only branch of government that declares war. The President can not send troops to war without permission from Congress. The concepts and technologies of modern warfare are very different from when the Constitution was written but the Framers didn’t intend to let the President take our nation to war without permission from Congress. I believe that the Framers intended for the President to be the final commander or military operations, but didn’t intend for the President to send American’s to war without more representation for the people from the Congress.


Works Cited
1 Samuel Kernell and Gary C. Jacobson, The Logic of American Politics, 3d ed., (San Diego, CA: University of California), 263.
2 Ibid., 57.
3 Ibid., 49-50. The point about Washington is one that I cannot cite.
4 Ibid., 263.
5 Ibid., 265.
6 David a. Horowitz and Peter N. Carroll, On the Edge: The United States in the Twentieth Century, 3d ed., (Belmont, CA: Thomson and Wadsworth), WWII: 214, Korea: 293, Vietnam: 405, Gulf War I: 512, Gulf War II: 539.
7 Kernell and Jacobson, 265.