Tomorrow a Senate committee will consider a new bill that would solidify the unconstitutional shift in power to declare war from Congress to the White House, as Marjorie Cohn explains.
By Marjorie Cohn
On Monday the Senate Foreign Relations Committee is set to review a bill that would virtually give President Donald J. Trump a blank check to wage war anywhere in the world any time he pleases.
The Constitution places the power to declare war exclusively in the hands of the Congress. However, for the past 75 years, Congress has allowed that power to drift toward the executive branch.
The new bill, should it pass, would effectively make the transfer of the war power from Congress to the president complete. It is hard to imagine a worse time in American history for this to happen.
Why Only Congress Can Declare War
The framers of the Constitution were well aware of the dangers of placing the power to declare war in the hands of the president. Delegates to the 1787 Constitutional Convention overwhelmingly rejected South Carolina delegate Pierce Butler’s proposal that the president be given the power to start a war, according to James Madison’s notes on the congressional debates. George Mason said he was “against giving the power of war to the executive” because the president “is not safely to be trusted with it.”
The framers of the Constitution therefore specified in Article I that only Congress has the power to declare war. Article II states, “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” Those articles, taken together, mean the president commands the armed forces once Congress authorizes war.
In spite of its exclusive constitutional power, Congress has not declared war since 1942. After that time, starting with President Truman, a series of US presidents committed American troops to hostilities around the world without waiting for Congress to act. Following the debacle in Vietnam, Congress enacted the War Powers Resolution in an effort to reclaim its constitutional authority to decide when and…