Trump at War

TRUMP AT WAR
John Yoo*
INTRODUCTION
Donald Trump campaigned on ending foreign wars. In his view,

conflicts wasted American lives and treasure for nothing. While President
Barack Obama had struggled over whether to intervene in the Syrian civil
war, Trump tweeted: “We should stay the hell out of Syria.” He asked:
“WHAT WILL WE GET FOR OUR LIVES AND $BILLIONS? ZERO.”1
Much to the dismay of the Washington, D.C. policy community, Trump
followed through. In December 2018, the White House announced that U.S.
troops would withdraw from Syria.2 After Jim Mattis resigned as Secretary
of Defense in protest and Congress reacted in an uproar, Trump paused.3 But
with John Bolton installed as national security advisor and Mike Pompeo as
Secretary of State, Trump returned to his original plan.4 On October 6, 2019,
following a phone call with Turkey President Recep Tayyip Erdogan, Trump
redeployed the 1,000 U.S. special forces away from the Turkey-Syria
border.5 The Turkish military quickly invaded Syria and set up a buffer zone
at the expense of the U.S.’s Kurdish allies.6 Trump triumphantly tweeted:
“COMING HOME! We were supposed to be there for 30 days – That was 10
years ago.”7 He continued: “When these pundit fools who have called the
Middle East wrong for 20 years ask what we are getting out of the deal, I
simply say, THE OIL, AND WE ARE BRINGING OUR SOLDIERS BACK
HOME, ISIS SECURED!”8
Syria symbolized Trump’s broader campaign promise to re-balance
American military strategy. He believed that the U.S. spent too much
protecting the free world while our allies enjoyed the free ride. Afghanistan
and Iraq symbolized for Trump the extreme costs of foreign entanglements.
* Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law;

Visiting Scholar, American Enterprise Institute; Visiting Fellow, Hoover Institution. The author thanks
Francis Adams, Min Soo Kim, and David Song for their excellent research assistance.
1. https://twitter.com/realdonaldtrump/status/346063000056254464.
2. In Shift, Trump Orders U.S. Troops Out of Syria, The Wall Street Journal, Nov. 27, 2018.
3 3. Helene Cooper, Jim Mattis, Defense Secretary, Resigns in Rebuke of Trump’s Worldview, N.
Y. Times, Dec. 20, 2018.
4 4. Declan Walsh and David E. Sanger, Pompeo Speech Lays Out Vision for Mideast, Taking
Shots at Obama, N. Y. Times, Jan. 10, 2019.
5 5. Trump Makes Way for Turkey Operation Against Kurds in Syria, BBC News, Oct. 7, 2019.
6 6. Ben Hubbard et al, Abandoned by U.S. in Syria, Kurds Find New Ally in American Foe, N.
Y. Times, Oct. 13, 2019.
7 7. https://twitter.com/realDonaldTrump/status/1187708412685107200
8. Id.
Electronic copy available at: https://ssrn.com/abstract=3808739

2 Vermont Law Review [Vol. 45:001
“We’re rebuilding other countries while weakening our own,” Trump said in
his first major foreign-policy speech.9 “I am the only person running for the
presidency who understands this, and this is a serious problem.”10 Once in
office, Trump set an end to U.S. involvement in Syria and began to wind
down deployments in Afghanistan and Iraq. 11 He raised doubts about
whether the United States would honor Article 5 of the North Atlantic Treaty,
which requires NATO members to treat any attack on one as an attack on
all.12 He demanded that Japan and Korea pay more for the large U.S. military
presences in their territory.13
On the other hand, Trump followed a more activist course than at first
appears. He continued the interventions of his predecessors in the Middle
East. He launched strikes on Syrian military facilities to retaliate for the
Assad regime’s use of chemical weapons.14 U.S. troops remained in Syria to
fight ISIS and protect the Kurds.15 He kept the military in Afghanistan and
authorized the spectacular use of heavy munitions.16
President Trump also kept war as a regular tool of foreign policy. In his
2017 speech to the United Nations, he promised the “total destruction” of
North Korea if it continued to develop nuclear weapons.17 “Rocket man is on
a suicide mission for himself and his regime,” Trump said of Kim Jong-un.18
“If [the U.S.] is forced to defend itself or its allies, we will have no choice
but to totally destroy North Korea.”19 Earlier that year, he had reacted to
North Korean threats by declaring: “[T]hey will be met with fire and fury
like the world has never seen.”20 Trump allowed the U.S. Navy to continue
9 9. Transcript: Donald Trump’s Foreign Policy Speech, N.Y. Times, Apr. 27, 2016
10. Id.
11 11. Jim Garamone, U.S. Completes Troop-Level Drawdown in Afghanistan, Iraq, U.S. Dept. of
Defense, Jan. 15, 2021.
12 12. Rosie Gray, Trump Declines to Affirm NATO's Article 5, The Atlantic, May 25, 2017.
13 13. Choe Sang-Hun, U.S. and South Korea Sign Deal on Shared Defense Costs, N. Y. Times,
Feb. 10, 2019.
14 14. Helene Cooper et al, U.S., Britain and France Strike Syria Over Suspected Chemical
Weapons Attack, N. Y. Times, Apr. 13, 2018.
15 15. Lara Jakes and Eric Schmitt, U.S. Struggles to Keep Allies in Fight Against ISIS in Syria, N.
Y. Times, Nov. 13, 2019.
16 16. Robin Wright, Trump Drops the Mother of All Bombs on Afghanistan, The New Yorker,
Apr. 14, 2017.
17 17. Julian Borger, Donald Trump threatens to 'totally destroy' North Korea in UN speech, The
Guardian, Sep. 19, 2017.
18. Id.
19. Remarks by President Trump to the 72nd Session of the United Nations General Assembly,
Sept. 19, 2017.
20 20. Peter Baker and Choe Sang-Hun, Trump Threatens ‘Fire and Fury’ Against North Korea if
It Endangers U.S., N. Y. Times, Aug. 8, 2017.

2021] Trump at War 3
its challenges to China’s fortified artificial islands in the South China Sea.21
Despite the Ukraine impeachment controversy, the U.S. sold lethal weapons
to Kyiv to fight a Russian-backed separatist movement. 22 For an alleged
isolationist, Trump has kept the United States on the beat as the world’s only
policeman.
Critics accused Trump of risking war. Trump used the United Nations
“as a stage to threaten war,” Senator Dianne Feinstein said, which “further
isolates the United States.” 23 Trump, however, followed a long line of
Presidents who have used such threats to deter enemies, communicate
resolve, and negotiate disputes.24 Critics did not just attack the wisdom of
these engagements; they accused the White House of waging
unconstitutional wars without congressional approval. American airstrikes
on Syria or support for Saudi fighting in Yemen broke the law, apparently,
because Congress had not declared war. “Make no mistake: President
Trump’s airstrikes against Syria were unconstitutional,” claimed Professor
Michael Paulsen. 25 National Review columnist David French chimed in
about U.S. support for Saudi Arabia: “It’s now official: The president who
ran for office pledging to reduce military entanglements abroad is involving
American forces in a foreign war in direct defiance of the plain language of
the Constitution.”26 Some conservatives, such as Mike Lee of Utah and Rand
Paul of Kentucky, took to the floor of the Senate to propose bills to declare
Trump’s decisions as Commander-in-Chief unconstitutional. 27 But these
efforts failed in the face of a presidential veto.28
Liberals and conservatives both have taken inconsistent attitudes toward
war powers. Many sharply criticized President George W. Bush (and
Presidents George H.W. Bush, Reagan, and Nixon) for conducting wars
without congressional approval but then remained silent when President
Obama attacked Libya to overthrow Muammar al-Ghaddafi.29 When Obama
21 21. Hannah Beech, China’s Sea Control Is a Done Deal, ‘Short of War With the U.S.’, N. Y.
Times, Sept. 20, 2018.
22 22. Tracy Wilkinson, U.S. Decision to Provide Anti-tank Missiles to Ukraine Angers Russian
Leaders, L. A. Times, Dec. 26, 2017.
23. Dianne Feinstein, Feinstein Statement on Trump UN Speech, Sep. 19, 2017.
24. See Matthew C. Waxman, The Power to Threaten War, 123 Yale L.J. 1626 (2014).
25. Michael Stokes Paulsen, Trump’s First Unconstitutional War, National Review (April 11,
2017).
26. David French, America’s War in Yemen is Plainly Unconstitutional, National Review (April
27, 2019).
27 27. Catie Edmondson, In Bipartisan Bid to Restrain Trump, Senate Passes Iran War Powers
Resolution, N. Y. Times, Feb. 13, 2020.
28 28. Lindsay Wise, Senate Fails to Override Trump Veto of Resolution on Force Against Iran,
Wall St. J., May 7, 2020.
29 29. Helene Cooper, Obama Cites Limits of U.S. Role in Libya, N. Y. Times, Mar. 28, 2011.

launched attacks on Syria for its use of chemical weapons, liberals continued
to acquiesce. They even accepted the Obama administration’s implausible
justification that the Libya and Syria interventions did not need authorization
because they were not really wars at all.30
But these critics gave full vent to their frustrations once Trump occupied
the Oval Office. Senator Bernie Sanders asserted that Trump had “no legal
authority” to attack Syria, even though he had not criticized Obama’s 2011
Libya intervention.31 Hina Shamsi, director of the National Security Project
at the ACLU called the strikes “horrific.”32 Trump’s Syria attack “probably
violate[s] the U.N. Charter and (therefore) the U.S. Constitution,” in the
words of Georgetown law professor Martin Lederman.33 Yale Law Professor
Harold Koh, who served as the legal advisor in the Obama administration
and approved the Libyan intervention, at best could only declare Trump’s
strikes “Not Illegal.”34
This Article will explain why these conservative and liberal critics were
mistaken in their views of Trump and war. The Constitution vests the
president with executive power and the role of Commander-in-Chief, 35
which, in the words of Federalist 70, gives them the primary constitutional
duty of, “protection of the community against foreign attacks.” 36 The
Founders vested these powers in the President precisely because only an
individual could act with sufficient “energy in the executive” to respond to
the challenges of foreign policy and national security. 37 Congress has an
arsenal of authorities to block presidential war-making, such as control over
the size and shape of the military. 38 Despite these war powers, the
Constitution does not grant Congress the sole right to decide whether to go
to war. Instead, the Constitution divides the war power between the executive
and legislative branches and encourages them to struggle for control over
foreign policy and war. By refusing to concede an unprecedented veto to
Congress over military operations, Trump preserved the constitutional right
of future Presidents to take the measures necessary to protect the nation’s
security.
30 30. David B. Rivkin Jr. and Lee A. Casey, Why Obama’s Libya Strikes don’t Require
Congressional Approval, Wash. Post, Mar. 24, 2011.
31. Bernie Sanders, Sanders Statement on Trump’s Authority to Go to War in Syria, Apr. 11,
2018; Bernie’s Foreign Policy Deficit, Politico, Jan. 30, 2016.
32. Are Donald Trump’s Missile Strikes in Syria legal?, The Guardian, Apr. 7, 2017.
33. Marty Lederman, Why the Strikes Against Syria Probably Violate the U.N. Charter and
(therefore) the U.S. Constitution, Just Security (April 6, 2017).
34. Harold Koh, Not Illegal: But Now the Hard Part Begins, Just Security (April 7, 2017).
35 35. U.S. Const. art. II, § 2, cl. 1.
36. Federalist 70, at 362 (Clinton Rossiter ed., 1961) (Alexander Hamilton).
37. Id.
38 38. U.S. Const. art. I, § 8, cl. 11.

I. THE TRUMP STRATEGY FOR WAR
President Trump took office in the midst of several wars. Almost two
decades after the 9/11 attacks, the United States continues to fight the Taliban
in Afghanistan.39 Although the U.S. had withdrawn from Iraq in 2010, the
Obama administration had intervened in Syria to fight ISIS. 40 President
Trump won his greatest military victory by finishing off ISIS as a caliphate
in control of territory, culminating in an October 27, 2019 operation that
killed ISIS founder Abu Bakr al-Baghdadi.41
Neither war raised a significant constitutional issue. In both cases,
Congress had enacted an Authorization to Use Military Force (AUMF) in the
wake of the September 11 attacks.42 In the broadest grant of war power by
Congress since World War II, the AUMF recognized that “the President has
the authority under the Constitution to take action to deter and prevent acts
of international terrorism against the United States.”43 It authorized him “to
use all necessary and appropriate force against those nations, organizations,
or persons he determines planned, authorized, committed, or aided the
terrorist attacks.”44 It did not limit its approval for war by time or geography.
The AUMF clearly authorized the wars that Trump inherited. The Taliban
had provided al-Qaeda with a safe haven before the attacks and harbored it
afterwards.45 After the U.S.’s lightning-quick victory over the Taliban in the
weeks after 9/11, the Taliban fled to western Pakistan, regrouped, and
returned.46 During the Bush years, troop deployments kept below 25,000.47
Obama ordered a temporary surge to 100,000 by 2011 but then drew down
forces to about 8,000 by 2016.48
Although President Trump had campaigned on withdrawing from
Afghanistan, he changed his mind. In 2017, at the request of Defense
Secretary Mattis, President Trump agreed to boost the force level to about
39 39. Julian E. Barnes and Thomas Gibbons-Neff, U.S. Should Slow Withdrawal From
Afghanistan, Bipartisan Panel Urges, N. Y. Times, Feb. 3, 2021.
40 40. Peter Baker and Michael D. Shear, U.S. Weighs Direct Military Action Against ISIS in Syria,
N. Y. Times, Aug. 22, 2014.
41 41. Missy Ryan and Dan Lamothe, Trump says Islamic State leader Abu Bakr al-Baghdadi blew
himself up as U.S. troops closed in, Wash. Post, Oct 27, 2019.
42 42. Authorization to Use Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
43. Id.
44. Id.
45 45. Mujib Mashal, How the Taliban Outlasted a Superpower: Tenacity and Carnage, N. Y.
Times, Jan. 15, 2021.
46 46. America’s Longest War: A Visual History of 18 Years in Afghanistan, Wall St. J., Feb. 29,
2020.
47 47. Craig Whitlock et al, The War in Afghanistan: A Visual Timeline of the 18-Year Conflict,
Wash. Post, Dec. 9, 2019.
48. Id.

14,000.49 But after firing Mattis in late 2018, the President announced that he
would halve the deployment.50 Despite the investment in men and treasure,
the war in Afghanistan had reached a stalemate. By the end of the fighting
season in 2019, the Taliban controlled about 12% of the country’s districts,
the U.S.-backed government controlled 53%, and 34% of the country
remained contested.51 Trump’s frustration with the ongoing conflict revealed
itself in the fall of 2019, with the leaked news that the President had planned
to invite Taliban leaders to Camp David, on September 11, to sign an
agreement for an end to the fighting.52 Trump cancelled the visit after public
outcry, the resignation of John Bolton,53 and a Taliban car bomb attack in
Kabul.54 Nevertheless, the Constitution gives the President as Commander-
in-Chief the ability to order the U.S. armed forces to cease fighting.55
Trump could also rely on the AUMF for what became the other war of
his first term: Syria. Even before Trump entered office, the United States had
already intervened in the civil war. In 2013, President Obama called for
regime change as a civil war erupted against the rule of Bashar al-Assad in
Syria.56 As reports circulated that the Assad regime may have used mustard
and/or sarin gas against civilians, Obama declared that Syria had crossed “a
red line,” though he left the consequences unstated. 57 Obama went to
Congress for authorization to intervene in Syria, but Congress refused. 58
Russian President Putin came to a humiliating rescue, in which the U.S.
refrained from war in exchange for Russian supervision of the Syrian
removal of chemical weapons.59
By 2014, Washington had shifted its attentions from chemical weapons
to ISIS. An offshoot of al-Qaeda, ISIS seized vast swaths of territory in both
49 49. Michael R. Gordon, Trump Gives Mattis Authority to Send More Troops to Afghanistan, N.
Y. Times, Jun. 13, 2017.
50 50. Helene Cooper and Katie Rogers, Trump, Angry Over Mattis’s Rebuke, Removes Him 2
Months Early, N. Y. Times, Dec. 23, 2018.
51. Congressional Research Service, Afghanistan: Background and U.S. Policy in Brief (May 1,
2019).
52 52. Peter Baker et al, How Trump’s Plan to Secretly Meet With the Taliban Came Together, and
Fell Apart, N. Y. Times, Sep. 8, 2019.
53 53. Peter Baker, Trump Ousts John Bolton as National Security Adviser, N. Y. Times, Sep. 10,
2019.
54 54. US service member among dead in Taliban suicide attack in Kabul, The Guardian, Sep. 5,
2019.
55 55. U.S. Const. art. I, § 8, cl. 11.
56 56. Full Transcript: President Obama’s Sept. 10 Speech on Syria, Wash. Post, Sep. 10. 2013.
57 57. David E. Sanger and Eric Schmitt, U.S. Shifting Its Warning on Syria’s Chemical Arms, N.
Y. Times, Dec. 6, 2012.
58 58. Russel Berman, The War Against ISIS Will Go Undeclared, The Atlantic, Apr. 15, 2015.
59 59. Michael R. Gordon, U.S. and Russia Reach Deal to Destroy Syria’s Chemical Arms, N. Y.
Times, Sep. 14, 2013.

Syria and Iraq during the chaos of civil war.60 Its forces controlled major
cities and significant population and resources in both nations; ISIS had even
threatened Baghdad before Iraqi forces had turned the tide.61 That fall, the
Obama administration launched airstrikes against ISIS and soon deployed
troops in Syria.62 Not only did President Trump continue the war, but he also
loosened the rules of engagement so that U.S. forces could fight more
aggressively.63 ISIS’s last city, its capital of Raqaa, fell in 2018, and strikes
killed al-Baghdadi and his number two aide in Summer 2019.64
Like Obama before him, Trump could invoke Bush’s AUMF. The
September 11 law authorized the President to use forces against any
“organization” that “committed or aided” the 2001 attacks.65 Although ISIS
and al-Qaeda later became rivals, ISIS originally began as a franchise of the
original terrorist group.66 Trump could also have relied upon the 2002 AUMF
that approved the Iraq invasion, which authorized the President to use the
Armed Forces “as he determines to be necessary and appropriate” to “defend
the national security of the United States against the continuing threat posed
by Iraq” and “enforce all relevant United Nations Security Council
resolutions regarding Iraq.” 67 One of those Security Council resolutions
authorized the United States to restore international peace and stability in the
region.68 Ejecting ISIS from Iraqi territory and preventing ISIS from using
Iraqi territory to attack Americans would qualify.
But Trump’s use of force against the Syrian government had to rely
solely on the President’s sole constitutional authority. Ending the Syrian civil
war, stopping Assad’s use of Weapons of Mass Destruction (WMDs), or
protecting Syrian civilians cannot fall within either the 2001 or 2002
AUMFs. Nevertheless, Trump used force where Obama would not. In April
2017, Trump ordered a retaliatory strike against Syria for using chemical
weapons against a rebel village.69 The Navy launched 59 Tomahawk cruise
60 60. Megan Specia, The Evolution of ISIS: From Rogue State to Stateless Ideology, N. Y. Times,
Mar. 20, 2019.
61 61. Loveday Morris, Iraqi forces face resistance in trying to push last of al-Qaeda affiliates out
of Ramadi, Wash. Post, Jan. 19, 2014.
62 62. Helene Cooper and Eric Schmitt, Airstrikes by U.S. and Allies Hit ISIS Targets in Syria, N.
Y. Times, Sep. 22, 2014.
63 63. Helene Cooper, Trump Gives Military New Freedom. But With That Comes Danger. N. Y.
Times, Apr. 5, 2017.
64 64. Peter Baker et al, ISIS Leader al-Baghdadi Is Dead, Trump Says, N. Y. Times, Oct. 27, 2019.
65 65. Authorization to Use Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
66 66. The Jihadi Threat ISIS, al-Qaeda, and Beyond, U. S. Inst. of Peace, Jan, 2017.
67. Authorization for Use of Military Force against Iraq Resolution of 2002, H.R.J. Res. 114,
107th Cong. § 3, 116 Stat. 1498 (2002).
68. Id.
69 69. Michael R. Gordon et al, Dozens of U.S. Missiles Hit Air Base in Syria, N. Y. Times, Apr. 6,
2017.

missiles against the Syrian air force base that had carried out the attack,
damaged Syrian military facilities, and put 20% of the Syrian air force out of
action.70 In a letter to Congress “consistent with the War Powers Resolution,”
Trump stated that he “acted in the vital national security and foreign policy
interests of the United States, pursuant to my constitutional authority to
conduct foreign relations and as Commander in Chief and Chief
Executive.” 71 Congressional Democrats criticized Trump for violating the
Constitution, and public interest groups sued to stop the attacks.72
Trump returned to military strikes when Damascus continued its WMD
use. According to U.S. intelligence, Assad ordered the use of sarin gas in
November 2017 on the outskirts of Damascus and, between June 2017 and
April 2018, used chemical weapons at least 15 times. 73 In April 2018,
President Trump joined British and French leaders in ordering airstrikes on
three Syrian chemical weapons facilities.74 However, thanks to Obama’s deal
with Putin, Russia had returned to the Middle East, and its air force and anti-
aircraft defenses provided air cover for Assad’s forces.75 Destruction was
minimal.76
Trump issued a constitutional defense of his attacks. While the Trump
Justice Department claimed that the President had the authority to use force
without congressional permission, it adopted a cramped theory of executive
power developed by the Obama administration. A May 2018 opinion by
DOJ’s Office of Legal Counsel (OLC) began well enough. It argued that the
Commander-in-Chief and Executive Power Clauses gave him “the authority
to direct U.S. military forces in engagements necessary to advance American
national interests abroad.”77 OLC repeated William Rehnquist’s justification
of Nixon’s expansion of the Vietnam War to Cambodia: history plainly
showed that “the Executive, under his power as Commander in Chief, is
authorized to commit American forces in such a way as to seriously risk
70. Id.
71. Briefing by Secretary Mattis on U.S. Strikes in Syria, Apr. 13, 2018,
https://www.defense.gov/News/Transcripts/Transcript-View/Article/1493658/briefing-by-secretary-
mattis-on-us-strikes-in-syria/.
72. Charlie Savage, Watchdog Group Sues Trump Administration, Seeking Legal Rationale
Behind Syria Strike, N.Y. Times, May 8, 2017; Charlie Savage, Was Trump’s Syria Strike Illegal?
Explaining Presidential War Powers, N.Y. Times, April 7, 2017.
73. See Memorandum Opinion for Counsel to the President, April 2018 Airstrikes Against
Syrian Chemical-Weapons Facilities (May 31, 2018).
74 74. Helene Cooper et al, U.S., Britain and France Strike Syria Over Suspected Chemical
Weapons Attack, N. Y. Times, Apr. 13, 2018.
75. Id.
76. Id.
77 77. April 2018 Airstrikes Against Syrian Chemical-Weapons Facilities, 42 Op. O. L. C. 1, 4
(2018).

hostilities, and also to actually commit them to such hostilities, without prior
congressional approval.”78
But then OLC imposed constraints on Trump. First, it maintained that
the Syrian strikes had to advance the “national interest.”79 According to OLC,
the national interest had usually focused on the protection of American
citizens and property abroad. 80 It asserted that U.S. interests in the world
meant that the President should have “wide latitude” to use force not just “to
protect American interests” but to respond to “regional conflagrations and
humanitarian catastrophes.”81 In Syria, the national interest included regional
stability, preventing humanitarian catastrophes, and deterring WMD use.
Despite its broad definition of “national interest,” OLC proceeded to
incorrectly cabin presidential power. It adopted the Clinton-Obama view that
Congress’s power to declare war gave it the sole authority to begin hostilities
abroad.82 But to justify Trump’s attack on Syria, like Obama’s 2010 Libya
attacks, OLC claimed that neither war was really a “war.”83 Attacking Syria,
OLC argued, did not rise to the level of a war because of the “anticipated
nature, scope and duration” of the conflict.84 Military operations would cross
the line into a constitutional war “when characterized by ‘prolonged and
substantial military engagements, typically involving exposure of U.S.
military personnel to significant risk over a substantial period.’”85 Trump’s
Syria strikes did not amount to war because the U.S. only used aircraft and
missiles for a limited time and mission.
OLC’s conclusion cannot be taken seriously. Its distinction between
small, short wars that the President may begin unilaterally and large, long
wars that require prior congressional approval has no foundation in the
Constitution’s text. The Declare War Clause grants Congress the power “To
declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water.”86 No mention of “small” versus
“large” wars. OLC mistakenly defines a war based on the potential harm to
U.S. troops regardless of the magnitude of the conflict. Suppose the United
States launches a nuclear weapon against an enemy capital. No U.S. troops
are at risk in a one-time attack that destroys the enemy political and military
leadership. Under OLC’s test, a nuclear attack would not qualify as war. The
78. Id. at 7.
79. Id. at 5.
80. Id.
81. Id. at 10.
82. Id. at 15.
83. Id.
84. Id. at 22.
85. Id. at 18.
86 86. U.S. Const. art. I, § 8, cl. 11.

magnitude of the destruction and the U.S.’s object to change a foreign regime
should meet the test for a war in the constitutional sense. Or suppose the
United States used its overwhelming naval and air power to attack a weaker
country that could not retaliate, as in Libya or Serbia. According to OLC, the
President can easily escape the constitutional limits on war by selecting some
branches of the armed force, but not others, to do the fighting.
The Trump administration’s adoption of this approach to war powers
may have made sense as a matter of political expediency, but it does not as a
matter of constitutional law. It also creates undesirable incentives. OLC’s test
would encourage the executive branch to choose air or naval forces, even
when ground troops would more effectively protect American interests. The
Balkan Wars, for example, ended not because of the air campaign against
Serbia but because NATO threatened to send troops. 87 OLC’s rule could
encourage Presidents to launch superficial attacks that may only defer
challenges to our national security, rather than solve them.
The next section describes a more principled approach that makes sense
of the decades of executive initiative in war-making. It will show that the
Constitution does not prescribe a step-by-step method for beginning wars, in
contrast to its careful process for passing a law. It argues that the President
can initiate hostilities abroad under his executive power and his role as
Commander-in-Chief. The President’s power is not unilateral, but the check
on it does not arise from the Declare War Clause, which in this Article, I
argue does not refer to a power to begin wars. Instead, the legislature’s main
restraint on presidential power comes from the power of the purse. The
Framers understood that Congress could prevent presidential adventurism by
refusing to build, or continuing to supply, the armies and navies necessary.
Rather than unconstitutional warfare, President Trump’s use of force falls
within the range of acceptable constitutional conduct because Congress has
refrained from its readily available powers to stop him.
II.
Attacking President Trump as a violator of the Constitution’s war

powers flies in the face of practice and ignores the best reading of the
constitutional text. Presidents have long initiated military conflict without
specific congressional authorization. For large wars, this practice extends at
least as far as the Korean War, if not further, and for smaller conflicts, the
87 87. Craig R. Whitney, NATO Threatens Military Action to Stem the Violence in Kosovo, N. Y.
Times, Jan. 29, 1999.

practice can be traced to the very first administrations. 88 But during the
Vietnam War, academic critics claimed that this form of war violated the
original intent of the Constitution’s Framers. 89 As this view reached the
status of academic consensus in the 1970s and 1980s, leading Democratic
politicians, such as then-Senators Ted Kennedy and Joe Biden, picked it up
in their attacks on the Reagan and Bush presidencies. 90 Then, of course,
Democrats furiously attacked George W. Bush for the wars in Afghanistan
and Iraq, even though they had voted to authorize them, on the ground that
he had somehow violated the Constitution.91
Despite their wars in Libya and Syria, members of the Obama
administration once agreed with their Democratic congressional brethren. In
a 2007 interview, candidate Barack Obama declared: “The President does not
have power under the Constitution to unilaterally authorize a military attack
in a situation that does not involve stopping an actual or imminent threat to
the nation.” 92 Candidate Hilary Clinton answered the same question: “the
Constitution requires Congress to authorize war. I do not believe that the
President can take military action – including any kind of strategic bombing
– against Iran without congressional authorization.”93 President Joe Biden
sang from the same hymn book. In 2007, Biden declared in a TV interview:
I was chairman of the Judiciary Committee for 17

years . . . .I teach separation of powers in constitutional
law. This is something I know. So I got together and
brought a group of constitutional scholars together to
write a piece that I’m gonna deliver to the whole United
States Senate, pointing out the president has no
constitutional authority to take this nation to war against
a country of 70 million people unless we’re attacked or
unless there is proof that we are about to be attacked. And
if he does . . . I will move to impeach him. . . . I would
lead an effort to impeach him.94
88. See John C. Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after
9/11 294 (2005). Need a Pin-Cite.
89. Id. at 154.
90 90. Sydney Ember, ‘I Did My Best to Stop American Foreign Policy’: Bernie Sanders on the
1980s, N. Y. Times, May. 18, 2019.
91 91. Alison Mitchell and Carl Hulse, Threats and Responses: The Vote; Congress Authorizes
Bush to Use Force Against Iraq, Creating a Broad Mandate, N. Y. Times, Oct. 11, 2002.
92. Charlie Savage, Barack Obama’s Q&A, in The Boston Globe (Dec. 20, 2007).
93. Charlie Savage, Hilary Clinton Q&A, in The Boston Globe (Dec. 20, 2007).
94. Chris Matthews show

Obama and his cabinet found it easier to claim constitutional principle

when they were out of office than when they assumed responsibility for
American national security in office.
But such inconsistency did not disturb many scholars. They turned to the
original understanding to claim that Congress’s power to “declare war” gives
it the exclusive right to decide whether to initiate military hostilities abroad.
They usually permit only a small exception for self-defense. 95 But their
positions often did not remain consistent when a Democrat was in office.
Throughout the Reagan/Bush wars in places like Grenada, Libya, Lebanon,
and Panama, for example, the leading lights of international legal scholarship
accused Republican Presidents of acting unconstitutionally because they had
received no congressional authorization.96 Law professors even went to court
to support challenges to the military aid program for El Salvador, covert
assistance for the Nicaraguan Contras, American naval escort operations in
the Persian Gulf, and ultimately the 1991 Persian Gulf War.97 In an effort to
stop unilateral presidential war-making, professors took to the popular press
and the airwaves, testified before Congress, and even considered
representing soldiers who might resist a call-up unless Congress declared
war.98
But Democratic presidents showed an equal tendency for using military
force no different than their Republican predecessors. Bill Clinton threatened
or used force in Haiti, Iraq, Bosnia, Afghanistan, Sudan, and Kosovo.99 But
when Clinton launched the two most significant military interventions in his
95. See, e.g., Harold Hongju Koh, The National Security Constitution: Sharing Power After the
Iran-Contra Affair 158-61 (1990); Bruce Ackerman, Trump Can’t Make Whenever He Likes, N.Y.Times,
Apr. 16, 2018.
96 96. See, for example, Louis Fisher, Presidential War Power (Kansas 1995); John Hart Ely, War
and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (Princeton 1993); Michael J.
Glennon, Constitutional Diplomacy (Princeton 1990); Louis Henkin, Constitutionalism, Democracy, and
Foreign Affairs (Columbia 1990); Harold Hongju Koh, The National Security Constitution: Sharing
Power After the Iran-Contra Affair (Yale 1990).
97 97. See Crockett v Reagan, 558 F Supp 893 (DDC 1982), affd 720 F2d 1355 (DC Cir. 1983),
cert denied, 467 US 1251 (1984); Ramirez de Arellano v. Weinberger,745 F2d1500 (DC Cir. 1984);
Sancbez-Espinoza v. Reagan, 568 F. Supp. 596, affd on other grounds, 770 F2d 202(DC Cir. 1985). Lowry
v Reagan, 676 F Supp 333 (DDC 1987).
98 98. See, for example, John Hart Ely, "War by Default" Isn't the Law, L. A. Times M7 (Dec 23,
1990); Harold Hongju Koh, Bush Honors the Law, Newsday 44 (Jan 20, 1991); CNN Crossfire, Oct 22,
1990, Transcript #166, Lexis (Interview of Harold Koh); The Constitutional Roles of Congress and the
President in Declaring and Waging War: Hearings before the Senate Committee on the Judiciary, 102d
Cong, 1st Sess (1991) (statements of Louis Henkin, Harold Koh and William Van Alstyne); Harold
Hongju Koh, Presidential War and Congressional Consent: The Law Professors' Memorandum in
Dellums v Bush, 27 Stan J Intl L 247, 252 (1991) (describing activities of eleven law professors
who signed amicus curiae memorandum).
99 99. John M. Broder, Conflict in the Balkans: The American Leader; The Evolution of a
President: From a Protesting Dove to a Hesitant Hawk, N. Y. Times, Mar. 28, 1999.

presidency, the dispatch of 20,000 troops to Bosnia in 1995 and the air war
against Serbia in 1999, scholarly critics of the administration’s constitutional
authority were few and far between. 100 Although he portrayed himself as
deferential to Congress on war powers during the elections, once in the Oval
Office, Obama just as readily laid claim to inherent executive power. In
Libya, he ordered an air war to help depose Ghaddafi and install a pro-
western regime, all without the approval of Congress or the United Nations
(which some scholars used to think legally necessary, too). 101 No great
debates followed in Congress; Democrats who had readily attacked Reagan
and the Bushes for their allegedly illegal wars did nothing to stop Obama.
Both Presidents Trump and Obama, like their predecessors, properly
rejected the pro-Congress. Critics of President Trump accept that modern
history runs contrary to their elaborate step-by-step method for making
war.102 Presidents from at least Harry Truman, if not before, have used force
abroad without congressional authorization.103 So, liberal and conservative
critics instead make a plea to the original understanding of the Constitution—
an ideologically uncomfortable position for many who would never consult
the Framers’ views on abortion, gay marriage, or the right to bear arms. John
Hart Ely, however, spoke in absolutist words in claiming support from the
Founders. Ely declared that there is a “clarity of the Constitution on this
question.”104 While often it is true that “the ‘original understanding’ of the
document’s framers and ratifiers can be obscure to the point of
inscrutability;” “[i]n this case,” Ely says bluntly, “it isn’t.” According to Ely
and those who have followed in his footsteps, the inescapable conclusion is
that “all wars, big or small, ‘declared’ in so many words or not . . . . . , had to
be legislatively authorized.”105 Only when Congress has authorized a war do
the President’s Commander-in-Chief powers over the armed forces kick in.106
Critics following Ely find that any use of presidential power to start war
without Congress’s approval beforehand violates the original understanding
of the Constitution. Michael Ramsey makes the argument concisely. He
argues that the Framers understood the power to “declare war” as giving
Congress the sole power to decide on whether to commence military
100 100. John Yoo, The Dogs That Didn't Bark: Why Were International Legal Scholars MIA on
Kosovo?, Chi. J. Int’l. L. 149, 152-57 (2000).
101 101. Conor Friedersdorf, How Obama Ignored Congress, and Misled America, on War in Libya,
The Atlantic, Sep. 13, 2012.
102 102. Robert J. Delahunty & John Yoo, Making War, 93 Cornell L. Rev. 101, 110 (2007).
103 103. Bevin Alexander, Korea: The First War We Lost 1, 482-83 (1986).
104 104. John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath
3-5 (1993).
105. Id.
106. Id.

hostilities against other nations.107 Under international and domestic law at

the time of the ratification, therefore, “declare war” must have been
shorthand for “begin war” or “commence war” or “authorize war.”108 His co-
author, and one of the great conservative scholars of the presidency,
Saikrishna Prakash, further supports this argument by claiming that the
diplomatic, political, and legal elites of the eighteenth century used “declare
war” colloquially to mean start war. 109 Therefore, the president cannot
activate his Commander-in-Chief authority and fight a war until Congress
gives its blessing first—though they, and virtually all scholars, concede that
the president has an inherent authority to use force when the United States
has suffered an attack. 110 Thus, the Declare War Clause both expands
Congress’s war powers and restricts those of the President. As Michael
Glennon of the Fletcher School writes, the clause not only “empowers
Congress to declare war,” but also “serves as a limitation on executive
war-making power, placing certain acts off limits for the President.”111
These critics of presidential war-making make an initial argument based
on the text, but they fail to carefully read the constitutional text and structure
before rushing off to consult eighteenth-century records of the Framing. First,
the Constitution does not treat “declare war” as synonymous with the power
to begin military hostilities. Instead of turning immediately to eighteenth-
century legal commentary, an interpreter of the Constitution must first
explain other provisions of the text, such as Article III’s vesting of all
executive power in the president and Commander-in-Chief Clause, Article I,
§ 10’s prohibition on state war-making, Article III’s definition of treason,
and Congress’s powers over the raising and supporting of armies. Placing the
Declare War Clause in its textual context shows that the Constitution does
not define a legalistic procedure for war-making but instead creates a flexible
system for conducting hostilities through the interaction of the political
branches.
While Congress has the power to declare war, the President also
possesses significant war powers. Article II, § 2 of the Constitution states that
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.”112 He is further vested with all of “the
107 107. John Yoo, War and Constitutional Text, 69 U. Chi. L. Rev., 1639, 1660 (2002)
108. See, e.g., Michael D. Ramsey, Textualism and War Powers, 69 U. Chi. L. Rev. 1543, 1590-
1609 (2002).
109 109. Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare
War,” 93 Cornell L. Rev. (2007).
110 110. Yoo, 69 U. Chi. L. Rev., at 1660.
111. Michael J. Glennon, Constitutional Diplomacy 17 (1990).
112 112. U.S. Const. art. II, § 2, cl. 1.

executive Power” and the duty to execute the laws.113 These provisions have
long been recognized to give the President absolute command over the armed
forces of the United States, to the point of ordering their use in hostilities
abroad.114 Nowhere does the constitutional text provide that the commander-
in-chief power cannot be used by the President to wage military hostilities
unless Congress first issues a declaration of war. Most scholars never
examine the original meaning of the Commander-in-Chief Clause. Rather,
they assume that the Declare War Clause must somehow trump the
Commander-in-Chief Clause, which they generally treat as limiting, rather
than empowering, the President, by not vesting him with the full power of
making war.
It makes little sense to read the Commander-in-Chief Clause as limiting
the President when it appears in Article II rather than Article I. It makes more
sense to understand the Commander-in-Chief Clause’s location in Article II
as a result of a division of the war power, which was once unitary under the
British Constitution, 115 into legislative and executive components. That
alone, however, does not produce a narrow reading of the Commander-in-
Chief power. Even where Article I assigns Congress power with respect to a
particular military matter, it does not necessarily vest it with exclusive
authority. Rather, the President as Commander-in-Chief may be able to
exercise authority over the same matter concurrently with Congress. For
example, although Article I, § 8, Clause 14 vests Congress with the power to
“make Rules for the Government and Regulation of the land and naval
Forces,” the President as Commander-in-Chief may unilaterally prescribe
military punishments, at least in default of congressional action.116
Reading the Commander-in-Chief power narrowly reverses the
traditional rule of interpretation of Article II. Hamilton and Madison argued,
at different times and on different subjects, that Article II generally vests the
federal executive power in the President alone.117 Exceptions in favor of the
113 113. U.S. Const. art. II, § 1, cl 1; US Const Art II, § 3.

114 114. See Johnson v. Eisentrager, 339 U.S. 763, 789 (1950) (President has authority to deploy
United States armed forces "abroad or to any particular region"); Fleming v. Page, 50 U.S. (9 How.) 603,
615 (1850) ("As commander-in-chief, [the President] is authorized to direct the movements of the naval
and military forces placed by law at his command, and to employ them in the manner he may deem most
effectual"); Loving v. United States, 517 U.S. 748, 776 (1996) (Scalia, J., concurring in part and concurring
in judgment) (The "inherent powers" of the Commander in Chief "are clearly extensive."); Maul v. United
States, 274 U.S. 501, 515-16 (1927) (Brandeis & Holmes, JJ., concurring) (President "may direct any
revenue cutter to cruise in any waters in order to perform any duty of the service"); Massachusetts v.
Laird, 451 F.2d 26, 32 (1st Cir. 1971) (the President has "power as Commander-in-Chief to station forces
abroad"); Authority to Use United States Military Forces in Somalia, 16 Op. O.L.C. 6 (1992).
115 115. Yoo, 93 Cornell L. Rev. at 106. (cited in note 102).
116 116. U.S. Const. art. I, § 8, cl. 14;
117 117. Federalist 70 (Hamilton), in Rossiter, Federalist Papers at 424 (cited in note 38).

legislature are to be read narrowly. If the power to make war was traditionally
part of the executive power, which no one seriously disputes, then it is the
Declare War Clause, rather than the Commander-in-Chief power, that is to
be read as a narrow exception.
Neglect of the President’s textual powers under Article II ignores the
historical record of practice as well. Congress has declared war only five
times,118 the most recent instance more than fifty years ago in World War
II. 119 Meanwhile, presidents have committed military forces to combat
without a declaration of war more than 130 times since the Constitution’s
ratification.120 Since World War II, moreover, presidents have engaged in
several significant military engagements without a declaration of war or other
congressional authorization. When President Truman introduced American
troops into Korea in 1950, he did not seek congressional authorization,
relying instead on his inherent executive and commander-in-chief powers. In
the Vietnam conflict, President Johnson never obtained a declaration of war
nor an unambiguous congressional authorization, although the Gulf of
Tonkin Resolution expressed some level of congressional support for
military intervention.121 Congress, however, never authorized the expansion
of the Vietnam War into Laos and Cambodia by President Nixon.
To be sure, in the wake of Vietnam, Congress enacted the War Powers
Resolution, which limits foreign military interventions to 60 days without
118 118. Jennifer K. Elsea and Matthew C. Weed, Declarations of War and Authorizations for the
Use of Military Force: Historical Background and Legal Implications, RL31133: 4, Congressional
Research Service, Apr. 18, 2014.
119. Id.
120. Congressional Research Service, Instances of Use of United States Armed Forces Abroad,
1798-2018 (Dec. 28, 2018).
121 121. While presidential critics such as Ely and Henkin generally attack unilateral executive war
making in the postwar period, they find the Gulf of Tonkin Resolution to amount to acceptable
congressional authorization for war, even though it was not a declaration of war. See Ely, War and
Responsibility at 16 (cited in note 96) (claiming that the Resolution “certainly was broad enough to
authorize the subsequent actions President Johnson took in Vietnam”); Henkin, Constitutionalism at 84
(cited in note 96) (“In my view, Congress had in fact authorized [the Vietnam War] in the Tonkin Gulf
Resolution and the war was therefore within the President’s authority delegated to him by Congress.”).
Other critics, however, believe the Vietnam War was unconstitutional as well. See, for example, J Gregory
Sidak, To Declare War, 41 Duke L J 27, 70–71 (1991) (arguing that Congress shirked its responsibilities
by failing to obey constitutional formalities with regard to the Vietnam conflict); Arthur M. Schlesinger,
Jr., The Imperial Presidency 180 (Houghton Mifflin 1989) (stating that a resolution, such as the Tonkin
Gulf Resolution, “giving the President authority to use force as he saw fit in vague future contingencies
was precisely the sort of resolution rejected as unacceptable in the early republic”); Francis D. Wormuth,
The Nixon Theory of the War Power: A Critique, 60 Cal L Rev 623, 690–94 (1972) (“[S]ince the Tonkin
Gulf Resolution did not elect either general or limited war and did not authorize the President to define
our legal status, we were in a position that had no legal characterization, except, of course, illegality.”).

congressional authorization. 122 Critics of presidential activism in national

security often invoke the War Powers Resolution, and some have even
brought lawsuits under it to no avail.123 Presidents have refused to accept its
legality, and neither Congress nor the courts have shown any interest in
enforcing it. Presidents Ford, Carter, and Reagan, for example, engaged in
several military actions without congressional assent, although they did
submit reports that were consistent (while disclaiming compliance) with the
requirements of the Resolution. 124 Publicly declaring that he had the
constitutional authority to initiate war unilaterally, President Bush committed
a half-million soldiers to warfare in Operation Desert Storm for a period of
time that violated the War Powers Resolution. President Clinton followed
these precedents with interventions in Somalia, Haiti, Bosnia, the Middle
East, and most significantly Kosovo, none of which were authorized by
Congress. While President George W. Bush sought and received approval of
the wars in Afghanistan and Iraq, President Obama’s wars in Libya and Syria
went forward in violation of the War Powers Resolution’s time limits.
Practice plays an important interpretive role for the question of the
proper allocation of war powers. Both the Supreme Court and the political
branches have often recognized that governmental practice represents a
significant factor in establishing the contours of the separation of powers.125
Even Justice Jackson’s Youngstown opinion, much beloved by critics of
presidential power, recognized that fact. “Congressional inertia, indifference
or quiescence may sometimes, at least as a practical matter, enable, if not
invite, measures on independent presidential responsibility,” he wrote.126 The
role of practice in understanding the constitutional text is heightened in the
122 122. War Powers Resolution, Pub L No 93-148, 87 Stat 555 (1973), codified at 50 USC §§ 1541–
48 (1994).
123 123. See Crockett v. Reagan, 558 F. Supp. 893, 898 (D.D.C. 1982), affd per curiam, 720 F.2d
1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984); Sanchez-Espinoza v. Reagan, 568 F. Supp.
596, 599 (D.D.C. 1983).
124 124. John Yoo, The Continuation of Politics by Other Means: The Original Understanding of
War Powers, 84 Cal. L. Rev. 167, 181–82 (1996).
125
See, e.g.,for example, Mistretta v. United States, 488 U.S.US 361, 393 (1989) (recognizing the
significance of understanding practical consequences when determining the placement of commissions
within
the federal government;); Youngstown Sheet & Tube v Sawyer, 343 US 579, 637 (1952) (Jackson
concurring) (“congressional inertia, indifference or quiescence may sometimes, at least as a practical
matter, enable, if not invite, measures on independent presidential responsibility”); United States v.
Midwest Oil Co.,, 236 U.S.US 459, 474 (1915) (noting that a “long -continued practice, known to and
acquiesced in by Congress” creates a presumption that the practice is legitimate).
126. Youngstown Sheet & Tube v Sawyer, 343 US 579, 637 (1952) (Jackson concurring); see
also Mistretta v United States, 488 US 361, 393 (1989); United States v Midwest Oil Co, 236 US 459,
474 (1915).

foreign affairs and national security areas, where an absence of judicial

precedent gives a long history of interbranch interpretation and interaction
more weight. Finally, practice shows that many government leaders
throughout American history have read the constitutional text as providing
presidents with the power to commence military hostilities without
congressional authorization.127
Practice demonstrates that the political branches have read the
constitutional text to establish a stable, working system of war powers. The
Constitution constructs a loose framework within which the President as
Commander-in-Chief enjoys substantial discretion and initiative in
conducting military hostilities. At the same time, Congress plays a significant
role by controlling both the resources for war (through funding) and the legal
status of hostilities (through declaring war). Unlike the legislative process,
the constitutional text does not establish a specific procedure for going to
war. Rather, it allocates different, potentially conflicting, war powers to the
two branches. Presidential critics wish that the constitutional text compelled
the sort of smooth, legalistic process upon the exercise of the Commander-
in-Chief and executive powers that it requires for the passage of laws or the
appointment of judges.128 But a practical reading of the text better follows
the original understanding of the Commander-in-Chief and executive powers
held during the period leading up to the Constitution’s ratification.
Throughout American history, courts have agreed that these powers give the
president broad constitutional authority to use military force in response to
threats to the national security and foreign policy of the United States.129
III.
Critics of President Trump and his predecessors reject the current system
of war powers because they so quickly assume that “declare war” must have
the colloquial meaning it holds today. But nowhere does the Constitution
define or use the phrase “declare” in this manner. If this pro-Congress view
was correct, we should expect the Constitution to consistently repeat the
phrase when addressing war-making. It does not. When discussing war in
other provisions, the Constitution employs phrases that indicate that
declaring war referred to something less than the sole power to send the
127. Supra note 24, at _.

128. See, e.g., Michael D. Ramsey, Textualism and War Powers, 69 U CHI L. REV. 1543 (2002).
128.
129. See Loving v United States, 517 US 748, 776 (1996) (Scalia concurring); Johnson v
Eisentrager, 339 US 763, 789 (1950); The Prize Cases, 67 US (2 Black) 635, 670 (1862); Fleming v Page,
50 US (9 How) 603, 614 (1850).

nation into hostilities. Take Article I, § 10, the Constitution’s most extensive
discussion of war-making:
No State shall, without the Consent of Congress, lay any

Duty of Tonnage, keep Troops, or Ships of War in time
of Peace, enter into any Agreement or Compact with
another State, or with a foreign Power, or engage in War,
unless actually invaded, or in such imminent Danger as
will not admit of delay.130
If we take seriously the idea of a written Constitution, then the same

words in the Constitution must have the same meaning, and different words
different meanings. If the pro-Congress view were correct, the Framers
should have written a provision stating that “the President may not, without
the Consent of Congress, engage in War, unless the United States are actually
invaded, or in such imminent Danger as will not admit of delay.” Or, Article
I, § 10 should have said “No state shall, without the consent of Congress,
declare war.” Instead, Article I, § 10 carefully divides the war powers
between Congress and the states in exactly the way that critics of executive
power believe should apply between the President and Congress. Pro-
Congress scholars cannot explain why the Constitution uses vastly different
language to convey the same meaning. The contrast demonstrates that the
Constitution does not establish any specific procedure for going to war.
Two additional provisions support an understanding of “declare war” as
a means of recognizing the legal status of hostile acts, rather than as an
authorization for hostilities. Article III defines the crime of treason, in part,
as consisting of “levying War” against the United States.131 Again, “levying”
must be broader in meaning than merely declaring. If the Framers had used
“levy War” in Article I, § 8, they certainly would have made far clearer their
alleged intention to grant Congress the sole power to decide whether to send
the United States to war against another country. Congress’s power to declare
war also does not stand alone, but instead is part of a clause that includes the
power to “grant Letters of Marque and Reprisal” and to “make Rules
concerning Captures on Land and Water.” 132 Placement of the power to
declare war alongside these other two is significant, because they clearly
involved the power of Congress to recognize or declare the legal status and
consequences of certain wartime actions, rather than the power to authorize
those actions. Letters of marque and reprisal allowed a sovereign nation to
130. US Const. art I, §10, cl. 3.

131. US Const. Art. III, §3, cl. 1. 131.
132. US Const. Art. I, §8, cl. 11.

extend the protections of the laws of war to private forces acting in

coordination with its armed forces.133 Rules concerning captures determine
the law that applies to prizes seized by American forces.134 In both cases,
these powers did not act to authorize hostilities as much as they determined
the legal status and consequences of those hostilities. Understood in this way,
adding the power to declare war to these other two parts in Article I, § 8,
makes perfect sense.
Other foundational documents of the period demonstrate that the
Framers thought of the power to begin hostilities as different than the power
to declare war. Under the Articles of Confederation—the nation’s framework
of government until the ratification—Congress operated as the executive
branch of the United States.135 Article IX vested Congress with “the sole and
exclusive right and power of determining on peace and war.”136 Here, the
Framers (many of whom had served in the Continental Congress) had on
hand a text that clearly and explicitly allocated to Congress the “sole and
exclusive” authority to decide (“determining on”) whether to fight a war. If
the Framers had intended to grant Congress the power to commence military
hostilities, they could easily have imported the phrase from the Articles of
Confederation into the Constitution, as they did with many of the other
foreign affairs powers.137
It makes no sense to ignore a document as historically and legally
significant as the Articles of Confederation—our nation’s Constitution
version 1.0. But critics also fail to take into account the next most important
documents of the time: State constitutions. Most of the State constitutions
did not explicitly transfer to their assemblies the power to initiate hostilities,
but rather sought to control executive power by disrupting the structural unity
of the governors.138 One State, however, chose to create exactly the type of
arrangement contemplated by presidential critics. In its first 1776
constitution, South Carolina vested in its chief executive the power of
commander-in-chief, but then declared that “the president and commander-
in-chief shall have no power to make war or peace . . . without the consent of
133. See Yoo, 84 Cal L Rev at 250–52.

134. See The Siren, 80 U.S. (13 Wall.) 389, 392-393 (1871). 134.
135. Jerrilyn Greene Marston, King and Congress: The Transfer of Political Legitimacy, 1774–
1776, at 303 (1987).
136. Articles of Confederation of 1781, art. IX, para. 1. 136.
137. See, Id. at para. 1 (providing that Congress shall have the power to establish rules for
captures, to grant letters of marquee and reprisal, to appoint courts for the trial of piracies and felonies
committed on the high seas, etc.)
138. Willi Paul Adams, THE FIRST AMERICAN CONSTITUTIONS: REPUBLICAN IDEOLOGY AND THE
MAKING OF THE STATE CONSTITUTIONS (2001). Need a Pin Cite for this book.

the general assembly and legislative council.” 139 In its 1778 constitution,
South Carolina reaffirmed its decision that the legislature first must authorize
war by stating that “the governor and commander-in-chief shall have no
power to commence war, or conclude peace” without legislative approval.140
South Carolina’s 1776 and 1778 constitutions show that the Framers did not
understand the phrase “declare war” to amount to the power to “make war”
or “commence war.” Both constitutions provided an example of
constitutional language that clearly and explicitly created the very legislature
dominated war-making system for which presidential critics wish. But the
Framers rejected the use of such clear language, just as they did not impose
the process of Article I, § 10, on the President and Congress.
Even if we were to agree that “declare war” were the central phrase, it
does not bear the meaning that critics believe. As an initial matter, it is useful
to examine the way that the people of that time used those words. Samuel
Johnson, the premier lexicographer of his age, defined “declare” as: “to clear,
to free from obscurity”; “to make known, to tell evidently and openly”; “to
publish; to proclaim”; “to shew in open view”; or “to make a declaration, to
proclaim some resolution or opinion, some favour or opposition.” 141 This
definition supports the argument that declaring war recognized a legal state
of affairs between the United States and another country, rather than
authorizing the steps to create hostilities in the first place. Johnson defines
the words used elsewhere in the Constitution for fighting a war much more
broadly than “declare.” Johnson defined “engage” as “to embark in an affair;
to enter in an undertaking,” or “to conflict; to fight.”142 He defined “levy” as
“to raise, applied to war.”143 He defined “commence,” the word used in South
Carolina’s constitution, as “to begin.”144 The Constitution’s use of the words
“levy” or “engage in” war clearly refer to a more active role in war-making,
one that Congress does not share simply through the power to “declare.”
Even today, we commonly think of the statutes that establish public programs
and mandates as “authorization” statutes (to be followed by funding), not
“declaring” statutes. A declaration does not authorize or make, it recognizes.
Properly understanding the meaning of “declare” also requires an
examination of the founding generation’s use of the word in other contexts.
When the Framers employed “declare” in a constitutional context, they
139. SC Const Art XXVI (1776), reprinted in Francis N. Thorpe, ed, 6 The Federal and State
Constitutions, Colonial Charters, and Other Organic Laws 3247 (1909).
140. South Carolina Constitution of 1778, art. XXXIII.
141. Samuel Johnson, 1 A Dictionary of the English Language (W Strahan 1755).
142. Id.
143. Id.
144. Id.

usually used it in a juridical manner, in the sense that courts “declare” the
state of the law or the legal status of a certain event or situation. When
considering the meaning of declaring war, the Framers’ thoughts would have
turned to their most significant national legal act. The Declaration of
Independence did not “authorize” military resistance to Great Britain. At the
time that the Continental Congress met at Philadelphia in 1776, hostilities
had existed for more than a year. 145 Congress had exercised sovereign
powers—negotiating with Britain, sending representatives abroad, seeking
aid—for at least two years. 146 The Declaration’s importance was not in
authorizing combat, but in transforming the legal status of the hostilities
between Great Britain and her colonies from an insurrection to a war between
equals. As David Armitage observes, “in order to turn a civil war into a war
between states, and thus to create legitimate corporate combatants out of
individual rebels and traitors, it was essential to declare war and to obtain
recognition of the legitimacy of such a declaration.”147 As a nation-state, the
United States could make alliances and conduct commerce with other
nations, which were critical steps in winning independence. The Declaration
of Independence was the U.S.’s first declaration of war.
Presidential critics try to carry out a textual ju-jitsu to avoid the narrow
meaning of a declaration of war. They concede, as they must, that by the time
of the Constitution’s framing, nations did not declare war often, and if they
did, they usually did so after hostilities had begun.148 But since the Framers
inserted the Declare War Clause into the Constitution, it must grant some
broader, more significant power than just declaring war— therefore, it must
convey the sole right to decide on all hostilities.149 Ramsey and Prakash agree
that the eighteenth-century definition of “‘declare war’ meant to initiate war
through hostilities as well as by formal proclamation.” 150 This argument,
however, errs in ignoring declarations of war. To use the eighteenth-century
understanding, declarations make public, show openly, and make known the
145. LIBRARY OF CONGRESS, DOCUMENTS FROM THE CONTINENTAL CONGRESS AND THE
CONSTITUTIONAL CONVENTION, 1774-1789, Digital Collections,
https://www.loc.gov/collections/continental-congress-and-constitutional-convention-from-1774-to-
1789/articles-and-essays/timeline/1775/. 145.
146. See David Armitage, The Declaration of Independence and International Law, 59 WILLIAM
& MARY Q. (3d ser) 39, 46 (2002). 146.
147. Id. at 47.
148. See John C. Yoo, War and the Constitutional Text, 69 U. CHI. L. REV. 1639, 1643 (2002);
John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers,
84 CAL. L. REV. at 214-215. 148.
149. See John Yoo, 69 U. CHI. L. REV. at 1643. 149.
150. Michael D. Ramsey, Response: The President’s Power to Respond to Attacks, 93 CORNELL
L. REV. 169, 169 (2001) (responding to Professor Saikrishna Prakash’s Unleashing the Dogs of War:
What the Constitution Means by “Declare War,” 93 CORNELL L. REV. 45 (2007)).

state of international legal relations between the United States and another
nation. This is a different concept than whether the laws of war apply to the
hostilities; two nations could technically not be at war, even though their
forces might be engaged in limited combat. During the eighteenth century,
declarations often took the form of a legal complaint in which a nation
identified the grounds for waging war, explained the new rules that would
apply to interaction between the two nations, and outlined the remedy.151
Declarations are also important for domestic constitutional purposes.
Textually, a declaration of war places the nation in a state of war, which
triggers enhanced powers on the part of the federal government. Congress
has recognized the distinction between declared total wars and non-declared
hostilities by providing the executive branch with expanded domestic powers
such as seizing foreign property, conducting warrantless surveillance,
arresting enemy aliens, and taking control of transportation systems, to name
a few—only when war is declared.152
The Constitution’s structure reinforces this reading of the text.
Presidential critics read the Declare War Clause to mean more than a power
to issue a declaration of war because otherwise the Constitution would
impose no substantive limit on the President. Implicit in their argument is
that war must follow the same rules as domestic affairs, where Congress
authorizes and then the President executes. Yet, the Constitution itself
nowhere describes such a process, nor does it explain how the Declare War
Clause and the Commander-in-Chief power must interact. What happens if a
President disagrees with Congress’s war goals or its methods? Suppose
Congress had ordered President Franklin Roosevelt to ignore the Pacific
theater entirely or to avoid a direct invasion of France. Under the pro-
Congress approach, the President could not disobey Congress’s decision, just
as he cannot refuse to enforce the laws passed by Congress for policy reasons.
But it seems obvious that the Constitution allows the President as
Commander-in-Chief to block congressional wartime decisions (including its
decision to declare war), just as Congress can block the President through the
funding power.
Constitutional structure resolves ambiguities in the allocation of an
executive power in favor of the Presidency. Article II, § 1 provides that the
“executive Power shall be vested in a President of the United States.”153 By
151. John Yoo, 69 U. CHI. L. REV. at 1672. 151.

152. See, for example, 50 USC App § 5(b)(1) (1994 & Supp 1999) (seizure of foreign property);
50 USC §1811 (1994) (electronic surveillance), 50 USC §1829 (1994) (physical searches), 50 USC §1844
(Supp 1999) (trap and trace devices); 50 USC § 21 (1994) (seizure of aliens); 10 USC § 2644 (1994 &
Supp 1996) (seizure of transportations systems). 152.
153. US Const Art II, § 1, cl. 1.

contrast, Article I’s Vesting Clause gives Congress only the powers “herein
granted.”154 This difference in language indicates that the Constitution limits
Congress’s legislative powers to the enumeration in Article I, § 8, while the
President’s powers include inherent executive powers that the Constitution
does not explicitly list. As Alexander Hamilton famously argued in
defending Washington’s April 22, 1793 Neutrality Proclamation: “The
general doctrine of our Constitution, then is, that the executive power of the
nation is vested in the President; subject only to the exceptions and
qualifications which are expressed in the instrument.”155
To be sure, Article II specifically enumerates powers in addition to the
Vesting Clause. Critics of presidential power argue that this subsequent
enumeration limits the “executive Power” granted in the Vesting Clause.156
But Article II does not define and cabin the grant in the Vesting Clause.
Rather, it redirects some elements of executive power to Congress in Article
I or divides the executive function between the President and the Senate. For
example, the Framers gave the king’s traditional power to declare war to
Congress in Article I but reserved the Commander-in-Chief authority to the
President in Article II. They altered the process for exercising other plenary
Crown powers, such as treaties and appointments, by including the Senate.157
The enumeration in Article II marks the places where several traditional
executive powers were diluted or reallocated. The Vesting Clause, however,
conveyed all other executive powers to the President.
There can be little doubt that the decision to deploy military force is
executive in nature. It calls for action and energy in execution, rather than the
enactment of legal rules to govern private conduct. “The direction of war
implies the direction of the common strength,” wrote Hamilton, “and the
power of directing and employing the common strength forms a usual and
essential part in the definition of the executive authority.”158 To the extent
that the constitutional text does not explicitly allocate the power to initiate
military hostilities, Article II’s Vesting Clause provides that it remains
among the President’s unenumerated powers. Indeed, two of the most
154. US Const Art I, §1.

155. Pacificus No 1, in The Helvidius-Pacificus Debates of 1793-94, at 13 (Morton J. Frisch ed.
2007).
156. See, for example, A. Michael Froomkin, The Imperial Presidency’s New Vestments, 88 NW.
U. L. REV. 1346, 1362-66 (1994) (rejecting the argument that Congress lacks constitutional authority to
restrict the President’s power over executive branch officials). 156.
157. Thus, Article II’s enumeration of the Treaty and Appointment Clauses only dilutes the
unitary nature of the executive branch in regard to the exercise of those powers, rather than transforming
them into quasi-legislative functions. See John C. Yoo, Treaties and Public Lawmaking: A Textual and
Structural Defense of Non-Self-Execution, 99 Colum L Rev 2218, 2233-34 (1999). 157.
158. Federalist 74 (Hamilton), in Clinton Rossiter, ed, Federalist Papers 447 (Mentor 1961).

prominent conservative critics of the President’s war powers, Professors

Prakash and Ramsey, make exactly this argument to claim that the President
exercises virtually all of the nation’s diplomatic powers. 159 Yet, on the
question of war powers they reverse the polarity of the constitutional
structure to claim that the text hems in the President.160 A consistent approach
should root presidential authority both to initiate military hostilities and to
conduct foreign policy in the Vesting Clause.
Depriving the President of the power to decide when to use military
force would disrupt the basic constitutional framework for foreign relations.
From the beginning of the Republic, the vesting of the executive,
Commander-in-Chief, and treaty powers in the executive branch granted the
President control over international affairs. As Secretary of State Thomas
Jefferson observed during the first Washington administration: “The
constitution has divided the powers of government into three branches [and]
has declared that ‘the executive powers shall be vested in the president,’
submitting only special articles of it to a negative by the senate.”161 Due to
this structure, Jefferson continued, the “transaction of business with foreign
nations is executive altogether; it belongs, then, to the head of that
department, except as to such portions of it as are specially submitted to the
senate. Exceptions are to be construed strictly.”162
In defending President Washington’s Neutrality Proclamation, Hamilton
came to the same view. According to Hamilton, Article II “ought . . . to be
considered as intended . . . to specify the principal articles implied in the
definition of executive power; leaving the rest to flow from the general grant
of that power.”163 Future Chief Justice John Marshall famously declared a
few years later, “The President is the sole organ of the nation in its external
relations, and its sole representative with foreign nations. . . . The [executive]
department . . . is entrusted with the whole foreign intercourse of the
nation.” 164 Given this agreement, the President has exercised the primary
authority over foreign affairs ever since.
Presidential critics will often claim that granting Congress the leading
role in war will lead to greater “responsibility” or “accountability,” in Ely’s
159. See Saikrishna B. Prakash and Michael D. Ramsey, The Executive Power over Foreign
Affairs, 111 Yale L.J. 231, 252–53 (2001).
160. See John Yoo, 69 U. CHI. L. REV. at 1678. 160.
161. Thomas Jefferson, Opinion on the Powers of the Senate, Apr. 24, 1790, in 16 Papers of
Thomas Jefferson 378–83 (Julian P. Boyd ed. 1961).
162. Id.
163. Pacificus No 1, in Henry Cabot Lodge, ed, 4 Works of Alexander Hamilton 432, 439 (G.P.
Putnam’s Sons 1904). 163.
164. 10 Annals of Congress 613–14 (Gales and Seaton 1851).

words.165 But it is not clear that placing the decision for war in Congress’s
hands, rather than the President’s, would advance those goals, nor is it at all
clear that those values should trump other important goals, such as
effectiveness and efficiency. The Framers believed that giving authority to
the President increased government accountability and responsibility due to
his nationwide election and the need to balance legislative excess. As
Alexander Hamilton wrote in Federalist 76, “[t]he sole and undivided
responsibility of one man will naturally beget a livelier sense of duty and a
more exact regard to reputation.”166
Correcting one of the chief defects of the Articles of Confederation, the
Framers included a sole executive in their designs to make the federal
government more effective at war. “Good government” required “energy in
the executive,” Hamilton wrote in Federalist 70.167 A vigorous President, he
said, was “essential to the protection of the community against foreign
attacks.” 168 In Federalist 74, Hamilton was even more explicit about the
functional superiority of the executive branch in war. “Of all the cares or
concerns of government, the direction of war most peculiarly demands those
qualities which distinguish the exercise of power by a single hand.” 169
Hamilton believed that the power of “directing and employing the common
strength” of society in war “forms an usual and essential part in the definition
of the executive authority.”170 This has been the judgment of others since the
Framing. With little variation, constitutional practice over two centuries has
seen the President taking the lead in deciding whether to initiate armed
165. See, for example, William M. Treanor, Fame, the Founding, and the Power to
Declare War, 82 CORNELL L. REV. 695,700 (1997) (“The Founders intended that the [Declare War]
Clause would vest in Congress principal responsibility for initiating conflict.”); Louis Fisher,
Presidential War Power 203 (Kansas 1995) (stating that Congress needs to “rediscover its institutional
and constitutional duties” and that “[1legislators must be prepared, and willing, to use the ample powers
at their disposal”); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its
Aftermath 3 (Princeton 1993) (“The power to declare war was constitutionally vested in Congress” in
order to “reduce the number of occasions on which [the United States] would become [ ] involved.”);
Michael J. Glennon, Constitutional Diplomacy 81 (Princeton 1990) (“There is no evidence that the
Framers intended to confer upon the President any independent authority to commit the armed forces to
combat, except in order to repel 'sudden attacks.”’); Louis Henkin, Constitutionalism, Democracy, and
Foreign Affairs 109 (Columbia 1990) (arguing that Congress is the “rudder” that steers the Constitution
in foreign affairs matters); Harold Hongju Koh, The National Security Constitution: Sharing Power after
the Iran-Contra Affair 158-61 (Yale 1990) (noting that the trend has been toward increasing executive
control but arguing for more balanced power sharing).
166. Federalist No. 76, at 510-11 (Alexander Hamilton) (Jacob E. Cooke ed. 1961).
167. Federalist No. 70, at 471-72 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
167.
168. Federalist No. 70, at 471-72 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).
169. Federalist No. 74, at 500 (Alexander Hamilton) (Jacob E. Cooke ed., 1961). 169.
170. Federalist No. 74, at 500 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

conflict. We have a war powers system in which the initiative lies with the
President, with Congress exercising an ex post check.
Developments in technology and warfare favor the Constitution’s
location of the initiative in the Executive now more than in the eighteenth
century. The industrial revolution made possible the mass armies, navies, and
air forces that eventually brought the continental United States within the
reach of long-distance bombers and nuclear-tipped missiles. As Jeremy
Rabkin and I have argued elsewhere, the information revolution has made
speed and secrecy even more important with the introduction of cyber,
robotic, and space weapons.171 The branch of government most functionally
suited to act in this security environment is the President, a fact that even the
Framers foresaw. As Hamilton observed, “[d]ecision, activity, secrecy, and
dispatch will generally characterise the proceedings of one man, in a much
more eminent degree, than the proceedings of any greater number . . .
. . . .”172 These functional considerations have led the Supreme Court to bless
centralized presidential control over foreign policy and diplomacy.173
Critics worry about vesting unchecked power in the hands of the
President.174 But that worry ignores the constitutional structure supporting
the bare text. Even if the Declare War Clause were struck from the
Constitution, Congress would already have ample ability to check the
President through its power to raise and fund the military. Congress can
refuse to create units necessary to carry out the President’s plans, terminate
funding for units engaged in combat, and limit the overall size and shape of
the military.175 Congress can foreclose options and open up others. As one
important eighteenth-century student of the British Constitution put it, the
king’s power to declare and wage war “is like a ship completely equipped
but from which the Parliament can at pleasure draw off the water, and leave
it aground,—and also set it afloat again, by granting subsidies.” 176 In
Federalist 58, Madison states that Parliament’s use of “the engine of a money
bill” had secured for centuries its “continual triumph . . . over the other
branches of the government.”177
Lacking the Crown’s powers both to raise a military and to declare war,
the President is even more at the mercy of Congress’s power of the purse. In
171. Jeremy Rabkin & John Yoo, STRIKING POWER: HOW CYBER, ROBOTS, AND SPACE
WEAPONS CHANGE THE RULES FOR WAR (2017).
172. Federalist No. 70, supra note, at 472.
173. See also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936).
174. See John Yoo, 69 U. CHI. L. REV. at 1680-81.
175. Id.
176. J.L. De Lolme, The Constitution of England; Or, an Account of the English Government 71
(N.Y., Hodge & Campbell 1792).
177. Federalist 58, at ____ (James Madison) (Jacob E. Cooke ed. 1961).

enacting funding bills for the military, Congress has a full and fair
opportunity to consider the merits of a military conflict. This was especially
true at the time of the founding. In 1789, the United States had no Navy and
an Army of less than 1,000 troops, which were barely suitable for border
defense.178 Although the militia might have provided an alternative fighting
force, Article I reserves to Congress whether to place it at the President’s
disposal.179 To fight the Quasi War with France, the Wars of 1812 and 1848,
and the Civil War, Congress had to expand the armed forces to fight the
specific conflict.180 In approving these measures, Congress fully discussed
the merits of the wars and could easily have foreclosed hostilities simply by
refusing to appropriate anything. Kate Stith has observed that Congress’s
power of the purse “constitutes a low-cost vehicle for effective legislative
control over executive activity.”181 Or as Walter Russell Mead writes, the
President loses much of his power to accomplish his military and political
objectives without congressional funding and other support and “must
govern like a Stuart king.”182
The United States did not have a large, peacetime, standing military until
after World War II.183 Critics argue that this development allows Presidents
to undermine Congress’s control by launching quick wars.184 There are two
main reasons to doubt this argument. First, the high cost of modern warfare
requires Presidents to seek congressional funding. Even during the Kosovo
war, which involved no ground troops and only a limited portion of the Air
Force, President Clinton had to seek special appropriations from Congress to
allow the American military intervention to continue.185 Second, Congress
has built a military that allows Presidents to act quickly. If it wanted to limit
178. See Morris J. MacGregor, The Formative Years, 1783–1812, in AMERICAN MILITARY
HISTORY 101 (Maurice Matloff ed., 1969)
179. US Const Art I, § 8, cl. 12-13. 179.
180. See HENRY ADAMS, HISTORY OF THE UNITED STATES OF AMERICA DURING THE
ADMINISTRATIONS OF JAMES MADISON (EARL N. HARBERT ED., 1986); PAUL H. BERGERON, THE PRESIDENCY OF JAMES
K. POLK 80 (1987); STANLEY ELKINS & ERIC MCKITRICK, THE AGE OF FEDERALISM (1993).
180.
181. Kate Stith, Congress’ Power of the Purse, 97 Yale L.J. 1343, 1360 (1988).
182. Walter Russell Mead, Special Providence: American Foreign Policy and How it Changed
the World 202 (2001).
183. Robert J. Delahunty & John Yoo, Response Making War, 93 CORNELL L. REV. 132, 132-
133 2007-2008. 183.
184. Id.
185. See JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN
AFFAIRS AFTER 9/11 157-59 (2005). The United States’ intervention in Lebanon in the early 1980s
provides another relatively recent instance to underscore the President’s critical dependence on
congressional funding when taking and sustaining military operations. See Multinational Force in
Lebanon Resolution, Pub. L. No. 98-119, 97 Stat. 805 (1983); see also DAVID K. NICHOLS, THE MYTH
OF THE MODERN PRESIDENCY 122 (1994). 185.

the President to defensive uses of force, Congress could leave aside the large
carrier groups, strike bombers, and armored divisions that are primarily
designed for offensive warfare. Congress acquiesces to quick wars because
it would rather have the President take the risk with wars that are both
unpredictable and dangerous. That Congress has not used its funding power
more often to prevent or halt military hostilities reveals no flaw in the
constitutional structure. It only reflects cooperation between the Executive
and the Legislature.
Some critics will concede that recent practice, and even the
Constitution’s structure, support presidential initiative in war. Instead, they
point to the eighteenth century’s colloquial usage of “declare war” to mean
commence war.186 They rely heavily on the comment of James Wilson, one
of the leading delegates to the Philadelphia Convention, who declared in the
Pennsylvania ratifying convention that “[i]t will not be in the power of a
single man” to involve the nation in war, “for the important power of
declaring war is vested in the legislature at large.”187 Another critical piece
of evidence for the pro-Congress side comes from Hamilton. In Federalist
69, he sought to downplay the Presidency by contrasting it with the broader
powers of the British king. Hamilton argued that the Commander-in-Chief
power “would amount to nothing more than the supreme command direction
of the military and naval forces, as first General and Admiral of the
confederacy.”188 Meanwhile, he observed, “that of the British King extends
to the declaring of war and to the raising and regulating of fleets and armies;
all which by the Constitution under consideration would appertain to the
Legislature.”189
Other than these two key statements, presidential critics generally draw
on passages from seventeenth- and eighteenth-century sources, including
several leading founders, which use “declare war” as synonymous with
commence hostilities. Writing as Pacificus, for example, Hamilton noted in
1793 that “the Legislature can alone declare war, can alone actually transfer
the nation from a state of peace to a state of hostility.”190 Responding as
Helvidius, Madison agreed that “those who are to conduct a war cannot in
186. See, e.g., Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 1590-
1609 (2002). 186.
187. Jonathan Elliot, 2 Debates in the Several State Conventions on the Adoption of the Federal
Constitution 528 (2d ed. 1836).
188. Id.
189. Federalist 69, at 465 (Alexander Hamilton) (Jacob E. Cooke ed. 1961).
190. Pacificus No. 1, supra note , at 16.

the nature of things, be proper or safe judges, whether a war ought to be

commenced, continued, or concluded.”191
These arguments fail on two grounds. First, they do not adequately
account for the history of the Constitution’s ratification. In fact, their
arguments run counter to what we know about the development of American
constitutional thinking during this period. Second, their analysis ignores the
language that Americans actually used in the constitutional texts of the time.
They show that Americans and others in the eighteenth century (as now)
could use the phrase “declare war” to refer to beginning military hostilities.
But there are more important examples where the Framing generation used
“declare war” in the narrower sense of setting international legal relations
and employed other, more precise phrases to refer to the beginning of
hostilities.
American constitutional development during the period between the
Declaration of Independence and the Constitution’s ratification favored the
expansion of executive power.192 In the burst of constitution-making after
independence, the Framers adopted one national charter, the Articles of
Confederation, which was crippled by a lack of executive organization and
leadership, and state constitutions distinctive in their efforts to undermine
executive unity and energy. 193 The result was legislative abuse, special
interest laws, and weak governments. 194 Dissatisfaction with this state of
affairs, even during a time of relative peace and prosperity, led American
leaders to seek a new Constitution that would create a stronger, more
independent executive branch wrapped within a more powerful national
191. Helvidius No. 1, in The Helvidius-Pacificus Debates of 1793-94, at 62 (Morton J. Frisch ed.
2007).
192. Forrest McDonald, The American Presidency: An Intellectual History 98–153 (1994);
Gordon S. Wood, The Creation of the American Republic 1776–1787, at 138, 393–429, 434 (1967).
193. See 1 The Works of Alexander Hamilton 219 (Henry Cabot Lodge ed., 2d ed.
1904) (“Another defect in our system is want of method and energy in the administration. This has
partly resulted from the other defect; but in a great degree from prejudice, and the want of a proper
executive.”)
194. See Federalist 22, in Clinton Rossiter, ed, The Federalist Papers 415-23 (Mentor 1961)
(discussing various weakness of the federal government under the Articles of Confederation—the leeway
given for foreign corruption to occur, the ability of minority states to negate the voting power of the
majority, the federal government’s inability to regulate commerce, to raise armies, etc.) 194 .
Cite needed with an example or two of this result

government.195 Presidential critics do not explain why those who generally

favored broader executive power would act in this one instance to limit it.
The Articles of Confederation provide a striking counterexample.
Congress inherited the Crown’s imperial powers in the colonies, while the
states retained their legislative powers. It kept “the sole and exclusive right
and power of determining on peace and war,” to enter into treaties, and to
conduct foreign relations.196 Article IX required the approval of nine states
before the nation could “engage in a war.”197 Article VI made clear that “[n]o
state shall engage in any war” without the consent of Congress, unless under
threat of invasion or imminent danger. 198 Critics do not explain why the
Framing generation used these phrases, especially the word “engage,” to
clearly refer to the beginning of military hostilities, rather than their favored
“declare.” Indeed, the phrase “declare war” does not appear in the Articles of
Confederation. The only interpretation that makes sense is that “engage” in
war or “determine on war” were the broadest possible grants of power to
Congress to begin hostilities, as they reflect the intention to vest all of the
war power in the national government. “Declare” refers to a narrower subset
of the war power that does not even make an appearance in our nation’s first
constitution.
Under the Articles, Congress’s problem was not a lack of formal
executive power, but its organization and support. Governing by committee
proved disastrous during the War of Independence. In 1781, Congress
replaced committees with executive departments that individual secretaries
headed—an improvement, but a small one.199 With Congress micromanaging
policy, the Executive lacked “method and energy,” in the words of a young
Alexander Hamilton.200 The states refused to supply revenue to the national
government or comply with its requests.201 Once peace arrived, Congress
proved utterly unable to handle its executive duties. It could not establish
even a small military to protect the northern forts, which the British refused
195. See generally Federalist 15, 21, 22, in Clinton Rossiter, ed, The Federalist Papers 415-23
(Mentor 1961) (discussing the various defects with the Articles of Confederation and their purported
remedies in the U.S. Constitution). 195. Cite needed
196. Articles of Confederation art. IX (1777).
197. Id.
198. Articles of Confederation art. VI (1777).
198.
199. See, e.g., FREDERICK W. MARKS III, INDEPENDENCE ON TRIAL: FOREIGN AFFAIRS AND THE
MAKING OF THE CONSTITUTION 52-95 (Scholarly Res. Inc. 1986) (1973). 199.
200. 1 The Works of Alexander Hamilton 219 (Henry Cabot Lodge ed., 2d ed. 1904).
201. MARKS, supra note 199, at 52-95. 201.

to hand over in violation of the 1783 peace treaty. 202 Britain and France
imposed harmful trading rules against American ships, while Spain closed
the critical port of New Orleans to American commerce. 203 American
ambassadors could do nothing to reverse British and French policies because
Congress had no authority over commerce with which to threaten retaliatory
sanctions.204
Experimentation with the executive power, with poor results, went
further in the states. In all but one state, the assembly elected the governor,
making clear who served whom. 205 Some states tried multimember
executives or required the governor to receive the blessing of a council of
state, also appointed by the legislature.206 As Gordon Wood has observed, the
councils often made the governors “little more than chairmen of their
executive boards.”207 States limited the governor’s term and eligibility. Most
states provided for the annual election of the governor, restricted the number
of terms a governor could serve, or both.208 Pennsylvania reached the most
radical extreme by creating a twelve-man executive council elected annually
by the legislature.209
Federalists rejected the progressive weakening of the Executive. They
modeled the federal Constitution on that of New York, which had freed the
governor of legislative dependence, given him significant constitutional
authority, and vested him with the sole power of leading the state’s
military. 210 During the Philadelphia Convention, initial proposals for the
Presidency would have rendered the Executive into the servant of Congress,
and little else. 211 But by the end, the Executive became institutionally
202. See, e.g., JACK N RAKOVE, THE BEGINNINGS OF NATIONAL POLITICS: AN INTERPRETIVE
HISTORY OF THE CONTINENTAL CONGRESS 199-205 (Johns Hopkins Univ. Press 1982) (1979).
202.
203. See, John Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the
Original Understanding, 99 COLUM. L. REV. 1955, 2011-2012 (1999). 203.
204. See Frederick W. Marks III, Independence on Trial: Foreign Affairs and the Making of the
Constitution 52-95 (1973); McDonald, supra note , at 143-53.
205. See, FORREST MCDONALD, THE AMERICAN PRESIDENCY: AN INTELLECTUAL HISTORY 98,
133 (1994). 205.
206. See, GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC 1776-1787 at 138,
393-429, 434 (1998). 206.
207. Wood, supra note , at 138.
208. See MCDONALD, supra note 205, at 131-33. 208.
209. See PA. CONST. § XIX (1776), reprinted in 5 FRANCIS NEWTON THORPE, THE FEDERAL AND
STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES,
TERRITORIES, AND COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES OF AMERICA, 3081,
3086-87 (William S. Hein & Co., Inc. 1993) (1909). 209.
210. See Thach, supra note, at 34-35.
211. Initial proposals would have made Congress elect the President. See 1 The Records of the
Federal Convention of 1787, at 18-21 (Max Farrand ed., rev. ed. 1966) (outlining the Virginia Plan
provisions for a National Executive). 211.

independent and possessed “the Executive rights vested in Congress by the

Confederation,” which were presumably those in foreign affairs.212 Even the
well-known but confused debate in the Philadelphia Convention on August
17, 1787 supports the reading of declare war as narrower than conducting
war. Delegates rejected the original grant to Congress of the power “to make
war” because the legislature’s “proceedings were too slow” and members of
the House would know too little about foreign affairs.213 They responded by
proposing an expansion of the executive role in war—making. 214 Pierce
Butler argued for “vesting the power [to make war] in the President, who will
have all the requisite qualities, and will not make war but when the Nation
will support it.”215
The Constitutional Convention delegates clearly amended the draft to
reduce Congress’s role in war and to increase the President’s. Immediately
after Butler’s comment, Madison and Elbridge Gerry moved “to insert
‘declare,’ striking out ‘make’ war; leaving to the Executive the power to repel
sudden attacks.”216 Madison’s amendment expanded the Executive’s power
to respond unilaterally to an attack, and it recognized that making war—the
entire war power—was a broader power than the power to declare war.
Madison’s notes, however, do not elaborate on what type of attack would
trigger the executive’s war-making authority. While an invasion on
American soil would qualify, it is unclear if assaults on American forces,
citizens, or property overseas would as well. Subsequent confusion over the
amendment suggests that the Convention did not share a consensus about the
war power. Roger Sherman, for example, believed Madison’s amendment
was unnecessary. The original draft, he thought, “stood very well. The
Executive shd. be able to repel and not to commence war.” 217 Sherman
thought that reducing Congress’s power to that of declaring war would permit
the Executive to commence wars unilaterally. He favored leaving “make”
war as it was, because it was “better than ‘declare’ the latter narrowing the
power too much.”218
Sherman’s comments, however, confused other delegates. Gerry seems
to have interpreted Sherman’s argument as expanding executive power. He
rose to proclaim that he “never expected to hear in a republic a motion to
empower the Executive alone to declare war.”219 Gerry may have feared any
212. Id. at 21.

213. 2 The Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed., 1911).
214. The support for this is provided in the next sentence which is cited below. 214.
215. 2 Farrand, supra note 211, at 318. 215.
216. 2 id.
217. 2 id.
218. 2 id.
219. 2 id.

interpretation that gave the President an authority to declare war, because a

declaration would represent a legal widening of a conflict at home and
abroad. Oliver Ellsworth argued that declarations of war and the making of
peace treaties should lie in different hands: “There is a material difference
between the cases of making war, and making peace. It shd. be more easy to
get out of war, than into it. War also is a simple and overt declaration.”220 In
contrast to war’s simplicity, said Ellsworth, “peace is attended with intricate
& secret negotiations.” 221 He shared the understanding that declaring war
differed from commencing war, neither of which a Framer would have
described as “simple and overt.” Declarations of war are “simple” because
they alter legal relationships and recognize an existing state of hostilities in
one shot. Rising to support Ellsworth, George Mason differentiated between
war and peace: he “was for clogging rather than facilitating war; but for
facilitating peace.”222 He “was agst giving the power of war to the Executive,
because not safely to be trusted with it; or to the Senate because not so
constructed as to be entitled to it,” but then curiously backed the change from
“make” to “declare.”223 Mason’s actions comport with his words only if we
view him as concurring in the idea that the “make” war language did not
preclude the Executive from waging a defensive war, or from declaring war.
Ellsworth and Mason may have supported the change to “declare” war
because it limited the Executive’s ability to plunge the nation into a total war.
The Convention then approved the change by eight states to one.224
Although the closing events of August 17 are somewhat unclear, we still
can venture some tentative conclusions. Changing the phrase from “make”
to “declare” reflected an intention to prohibit Congress from encroaching on
the executive power to conduct war. Although the amendment only changed
Article I, the substitutions recognized the President’s powers in one
dimension and restricted it in another. The Framers understood that a
reduction in congressional war authority would produce a corresponding
expansion in executive authority. The change not only increased the
minimum level of executive power (repelling sudden attacks), but it also set
a limit on its apex as well (declaring war). Adopting the amendment made
clear that the President could not unilaterally take the nation into a total war,
but also suggested that he might be able to engage the nation in hostilities
short of that. The August 17 debate also raises two other points. First, some
of the delegates did not envision the Executive as a magistrate charged only
220. 2 id. at 319.

221. 2 id.
222. 2 id.
223. 2 id.
224. 2 id. at 314.

with executing the laws. Some Framers believed that the president enjoyed a
“protective power,” as Henry Monaghan has described it, which permitted
him to guard the nation from attack, even in the absence of congressional
consent.225 Another group thought that the president could lay a claim, equal
to that of Congress, to representing the people, for he would “not make war
but when the Nation will support it.”226
Throughout the Convention, delegates approved significant transfers of
authority to the President. Critics do not explain why the Framers would have
acted against these broader constitutional trends and weakened presidential
authority in war. Critics also fail to show that the Framers believed the
Constitution, once in practice, would require Congress to approve before the
President could conduct hostilities. The Federalists, who had every incentive
to downplay presidential power, never claimed that Congress’s Declare War
power would serve as a check on executive decisions in favor of war. No
Federalist or Anti-Federalist bestowed upon the Declare War Clause the
broad sweep that pro-Congress scholars give it today. The closest they come
is Federalist 69, in which Hamilton portrays the President’s powers in war
as incomparable to the British King’s because Article II does not vest in the
former the powers to declare war or raise armies. 227 Hamilton, however,
never defines the power to declare war, nor does he ever discuss it as a
legislative check on the Executive. Further, Hamilton does not contest the
assumption that the President, like the King, could deploy troops and ships
once the Legislature had provided them.
When the Federalists debated the Anti-Federalists over the Constitution,
they never argued that the Declare War Clause would prevent the President
from conducting hostilities. Instead, they predicted that Congress’s power
over funding would serve as the primary check. The most direct and revealing
confrontation occurred in the Virginia ratifying convention, probably the
most politically significant state in the ratification struggle. Patrick Henry,
one of the Anti-Federalist leaders, argued that the President would use his
command over the military to centralize his power.228 Federalists responded
by invoking the British Parliament’s power of the purse to control war-
making. “[N]o appropriation of money, to the use of raising or supporting an
225. Cf. Henry P. Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1, 67
(1993).
226. 2 Records, , at 318.
227. See Federalist 69 (Hamilton), in Clinton Rossiter, ed, The Federalist Papers 415-
23 (Mentor 1961). 227.
228. 9 Documentary History of the Ratification of the Constitution 964 (John P. Kaminski &
Gaspare J. Saladino eds., 1990).

army, shall be for a longer term than two years,” Federalist George Nicholas
said.229 “The President is to command. But the regulation of the army and
navy is given to Congress. Our Representatives will be a powerful check
here. The influence of the Commons in England in this case is very
predominant.” 230 Madison followed not with the Declare War Clause but
with the maxim “that the sword and purse are not to be given to the same
member.” 231 Under the British constitution, which Henry had praised,
Madison observed, “[t]he sword is in the hands of the British King. The purse
is in the hands of the Parliament. It is so in America, as far as any analogy
can exist.” 232 Although Madison would attack the constitutionality of the
Neutrality Proclamation seven years later,233 here he made no claims that
Congress could constrain presidential war-making because of the Declare
War Clause. Federalists explicitly relied on the Legislature’s power to fund
and raise the military instead.
Critics may argue that this dialogue has limited relevance because it
centers on concerns of a domestic military tyranny rather than foreign
military adventures. But the Federalists would have had every incentive to
turn to the Declare War Clause in the crucial state of Virginia. That they did
not is consistent with the evidence from the rest of the ratifying process. No
Federalists discussed the Declare War Clause to respond to fears of an
aggrandizing Executive in war. Instead, Federalists carefully explained that
the checks on war-making under the new American Constitution would
resemble practice under the British. 234 While the Executive would have
command of the army and navy, only the legislature could bring them into
existence. 235 While the President could conduct military operations, they
would continue only while Congress chose to fund them.236 A few offhand
comments in which the term “declare” war is used to refer to beginning war
have much less relevance to the question at hand than Federalist explanations
of how the separation of powers would work in practice.
And what to make of the Declare War Clause? The Declare War Clause,
like the adjacent grants of powers to define and punish “Offences against the
Law of Nations,” to issue “Letters of Marque and Reprisal,” and to regulate
229. 3 ELLIOT, supra note 187, at 391. 229.

230. 10 Kaminski & Saladino, supra note 228, at 1281.
231. 10 Kaminski & Saladino, supra note 228, at 1282.
233. The Pacificus-Helvidius Debates of 1793-1794: Toward the Completion of the American
Founding, Online Library of Liberty, at 7, https://oll-resources.s3.us-east-
2.amazonaws.com/oll3/store/titles/1910/Hamilton_3953_EBk_v6.0.pdf. 233.
235. 3 id.
236. 3 id.

“Captures on Land and Water,” is exceptional in vesting Congress, ordinarily

a body with jurisdiction only over domestic matters, with the authority to
speak to and to intervene in international affairs. By granting Congress the
power to declare war, the Framers enabled it to serve notice on American
citizens, neutral nations, and intended or actual foreign enemies of the
existence of a state of war between the United States and another power or
powers. Further, Congress would have had the authority to set forth the
grievances that impelled the United States to war and to define the United
States’ peace terms and strategic objectives. All of these functions—giving
notice, providing justification, stating war aims—are superbly exemplified
in the United States’ first declaration of war—the Declaration of
Independence.237 The Declaration of Independence served notice of a change
in the legal relations between the United States and Great Britain, but it didn’t
authorize the beginning of the war—fighting had already broken out at
Lexington and Concord more than a year before July 4, 1776. The
Declaration of Independence transformed the ongoing American Revolution
from a mere civil war or rebellion into a public war between two states and,
by so doing, made the American soldiery legitimate combatants in a regular
war rather than leaving them to be treated as mere traitors or rebels.
Critics of presidential power also place great store in the practice of the
executive branch after the Framing. In arguing Trump’s actions in Syria were
unconstitutional, Andrew Napolitano argued “Madison himself argued that
if the president could both declare and wage wars, he’d not be a president but
a prince.” 238 The weight that practice deserves is unclear, as subsequent
practice could not inform the understanding of those who had earlier ratified
the Constitution. Nevertheless, critics believe that the post-ratification
statements of Presidents reflect a consistent understanding of the power to
declare war that extends back several decades.239 Texamples from America’s
early wars, however, do not support the claim that Congress had authorized
every early conflict. While Presidents sought congressional approval for
military hostilities on some occasions during this period, such as the Quasi
War with France and the War of 1812, 240 Presidents lacked legislative
authorization for other conflicts. Washington’s war against the Indians of the
237. See David Armitage, The Declaration of Independence and International Law, 59 Wm. &
Mary Q. 39, 46–47 (2002).
238. The Presidency, War Powers, and the Constitution, THE WASHINGTON TIMES, October 9,
2019.
239. Delahunty & Yoo, supra note 183, at 158. 239.
240. See HENRY ADAMS, HISTORY OF THE UNITED STATES OF AMERICA DURING THE
ADMINISTRATIONS OF JAMES MADISON (Earl N. Harbert ed., 1986); PAUL H. BERGERON, THE
PRESIDENCY OF JAMES K. POLK 80 (1987); STANLEY ELKINS & ERIK MCKITRICK, THE AGE OF
FEDERALISM (1993). 240.

Ohio Valley and Jefferson’s war against the Barbary states illustrate this
point. In both cases, congressional action created and funded the military
necessary for offensive action, but it ’did not provide the equivalent of
permission to start fighting.241
During Washington’s presidency, the United States waged war against
only one enemy, the Indian tribes on the western frontier in present-day Ohio.
The Washington administration developed a political and military strategy
toward the Indians without consulting Congress. It sought Congress’s
cooperation when it needed increases in the size of the Army, military
spending, or approval of diplomatic missions and agreements. 242 It would
have been impossible for the executive branch to conduct military operations
against the Indians without Congress, but not because of the latter’s “declare
war” power. There simply was no military for the President to order against
the Indians. In 1789, the Army numbered only 672 troops, scattered over the
frontier, while the Indian tribes threatening Georgia could field 5,000
warriors. 243 In 1790, after Congress expanded the army to 1,000 regular
troops, Washington ordered offensive, punitive expeditions into Indian
territory. 244 After the Army suffered a disastrous defeat in winter 1791,
Washington returned to Congress to seek a five-fold increase in the size of
the army, at triple the cost. 245 Under the command of General Anthony
Wayne, the 5,000-man Army would win the Battle of Fallen Timbers. 246
Historians have recognized that this victory ended the threat of Indian
resistance to the opening up of the Northwest Territory and led to the
successful resolution of the frontier issues with the British. 247 Yet,
throughout, Washington never sought, nor did Congress provide, a
declaration of war. If Congress had disagreed with the President’s military
241. Delahunty & Yoo, supra note 183, at 158-165. 241.

242. See RICHARD H. KOHN, EAGLE AND SWORD: THE FEDERALISTS AND THE CREATION OF THE
MILITARY ESTABLISHMENT IN AMERICA, 1783-1802, at 92-93 (1975). 242.
243. Robert J. Delahunty & John Yoo, Making War, 93 Cornell L. Rev. 123, 159 (2007).
244. See RICHARD H. KOHN, EAGLE AND SWORD: THE FEDERALISTS AND THE
CREATION OF THE MILITARY ESTABLISHMENT IN AMERICA, 1783-1802, at 102 (1975). 244.
245. See Statement of Henry Knox (Dec. 26, 1791), in 4 AMERICAN STATE PAPERS:
INDIAN AFFAIRS 197, 197-99 (Walter Lowrie & Matthew St. Clair Clarke eds., D.C., Gales & Seaton
1832). 245.
246. See KOHN, supra note 178, at 156-57. 246.
247. See ELKINS & MCKITRICK, supra note 180, at 438-39. 247.

policy, it could have easily refused to establish or expand the Army, but it
instead signaled its agreement by granting every one of Washington’s
requests.248
Soon after assuming the Presidency, Thomas Jefferson decided to stop
paying tribute to the Barbary pirates. Although history remembers them as
brigands, the Barbary pirates were in fact from the autonomous regions of
Algiers, Tripoli, and Tunis within the Ottoman empire and Morocco.249 In a
meeting on May 15, 1801, the cabinet unanimously agreed that Jefferson
should send a naval squadron to the Mediterranean as a show of force.250 No
one in the cabinet, including Madison or Gallatin, believed that the President
had to seek congressional permission to order the mission.251 Instead, they
thought that a law creating the squadron supported a “training mission” in
the Mediterranean. 252 The cabinet also agreed that the President had
constitutional authority to order offensive military operations should a state
of war already be in existence because of the hostile acts of the Barbary
powers. 253 As Abraham Sofaer has observed, Jefferson and his advisors
assumed they had the authority for the expedition simply by virtue of
Congress’s creation of the naval forces that made it possible—a position no
different from the one President Washington had taken in the Indian wars.254
The Secretary of the Navy ordered Commodore Richard Dale—five days
later—to proceed to the Mediterranean and, if he found that any of the
Barbary states had declared war on the United States, to “chastise their
insolence” by “sinking, burning, or destroying their ships & Vessels
wherever you shall find them.” 255 Upon arriving in Tripoli, the U.S.S.
248. Id. at 161-62.

249. See Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The
Origins 209-10, 208-09 (1976).
249.
250. Id. at 209.
251. Id.
252. Id.
253. Id.
254. Abraham D. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins 209-10
(1976).
255. Letter from Samuel Smith to Captain Richard Dale (May 20, 1801), in I NAVAL
DOCUMENTS RELATED TO THE UNITED STATES WARS WITH THE BARBARY POWERS 465, 467 (1939)
[hereinafter NAVAL DOCUMENTS]. 255.

Enterprise imposed a blockade and destroyed an enemy vessel.256 Jefferson

later told Congress that the Enterprise had acted in self-defense and Congress
authorized whatever measures might be necessary.257 Jefferson’s decisions to
send the Navy to a hostile area for offensive operations went unchallenged.258
These examples reinforce both the lessons of the Framing and modern
practice. Critics portray presidential uses of force, from Washington to
Trump, as violations of the Constitution. Only a declaration of war from
Congress, according to this account, can cure the problem. But the Declare
War Clause cannot bear this heavy responsibility. Even if English speakers
in 2020, or in 1789, used “declare war” colloquially to refer to starting
hostilities, the Clause did not concentrate the authority to begin a conflict in
Congress. Careful scrutiny of the Constitution’s text, including the
provisions adjacent to the Declare War Clause and other provisions relating
to war, and of its structure establishes that the Clause must have had a
narrower and more precise meaning. The most plausible interpretation of the
Clause reads it as conferring on Congress the power to create a variety of
legal regimes under international and domestic law suitable to the various
kinds of conflicts subsumed under the name “public wars.” Rather than
regulating the relations between the President and Congress, the Declare War
Clause enables Congress to regulate the relations between the United States
and other states. The Framers countered the risk of executive aggrandizement
in war making in other ways—most notably by vesting in Congress the power
to raise armies and navies and to control their funding. The long and
successful history of Parliament’s struggle in England, against the claim of
the Crown to wage war as it pleased, demonstrated to the Framers that the
funding power was the most certain and effective check against executive
abuses.
256. See Letter from Captain Richard Dale to Captain Samuel Barron (July 4, 1801), in
NAVAL DOCUMENTS, supra note 221, at 500, 500; Letter from Captain Richard Dale to Lieutenant
Andrew Sterett (July 5, 1801), in NAVAL DOCUMENTS, supTa note 221, at 503, 503; Letter from Captain
Richard Dale to Captain Samuel Barron (July 9, 1801), in NAVAL DoCUMENTS, supra note 255, at 505,
505. 256.
257. 7 ANNALS OF CONG. 12 (1851).
258. Delahunty & Yoo, supra note , at 165-66.

Chapter 8

CONCLUSIONS
An obvious attraction of the Congress-first, President-second approach

is that it is familiar. It is identical to the process that governs the enactment
of legislation. We expect Congress to carry the initiative in passing laws, and
that its collective representation of the American electorate will achieve
deliberation, consensus, and clarity of legislative purpose. Furthermore, the
“Declare War” approach to war seeks to “clog” the rush toward war by
requiring both the Congress and President to agree before risking American
lives and treasure abroad. Reducing the amount of war draws upon deeply
ingrained American notions that, as the exceptional nation, the United States
can either withdraw from the conflict-torn affairs of the Old World or change
the world as to render war itself obsolete.
But these assumptions do not rest on any tested truths. A Congress-first
approach does not always generate a deliberation that produces fewer wars.
The Mexican-American War of 1848, for example, did not result from
extensive deliberation and consensus in Congress or the nation, but rather a
rush to war after an alleged attack on Sam Houston’s forces along the Rio
Grande River. Congress did not declare war against Spain in 1898 after long
discussion and consultation, but rather after the destruction of the U.S.S.
Maine in Havana harbor. Both wars resulted in quick victory and large
territorial conquests for the United States, but it is not clear whether the
defenders of congressional prerogatives today would have considered them
“good” wars.
Nor does congressional deliberation ensure consensus. Even though
Congress approved the Vietnam War in the Tonkin Gulf Resolution, the
conflict still provoked some of the most divisive politics in American history.
Congress authorized the war in Afghanistan in 2001 and the invasion of Iraq
in 2002, but both wars lost their consensus in the U.S. political system as
well. Conversely, a process without congressional declarations of war does
not necessarily result in less deliberation or consensus. Nor does it seem to
inexorably lead to poor or unnecessary war goals. Perhaps the most important
example, although many might not consider it a “war,” is the conflict
between the United States and the Soviet Union from 1946 through 1992.
War was fought throughout the world by the superpowers and their proxies
during this period. Yet the only war arguably authorized by Congress—and
even this is a debated point—was Vietnam. The United States waged war
against Soviet proxies in Korea and Vietnam, the Soviet Union fought in
Afghanistan, and the two almost came into direct conflict during the Cuban
Missile Crisis. Despite the division over Vietnam, there appeared to be a
significant bipartisan consensus on the overall strategy (containment) and

goal (defeat of the Soviet Union, protection of Europe and Japan), and
Congress consistently devoted significant resources to the creation of a
standing military to achieve them. While the branches cooperated, Congress
chose to provide funding and left to the President the heavy responsibility
and potential blame for deploying the military abroad.
Presidential initiative and responsibility, followed by lackluster
congressional support, remains the basic operating procedure for war today.
Congress does not want the accountability for decisions on war. Instead, it
provides the executive branch with a military designed to conduct offensive
wars abroad, without any conditions. If the wars go well, Congress can take
credit for providing the troops; if the war goes badly, it blames the President.
The duty to protect the nation’s security and advance its foreign interests falls
upon the President, whether it be Bush, Obama, or Trump. Congress can
criticize Trump for withdrawing from Syria too early, or staying in
Afghanistan too long, but the last thing it wants to do is take political
responsibility for war. Presidents will take up the sword paid for by Congress,
whether they want to or not, because the electorate will hold them
responsible.
President Trump’s interventions in Syria and Afghanistan should
underscore one last truth about the constitutional way of war. Critics of
executive power hold in their minds an image of war as one sparked by
presidential adventurism, accompanied by congressional fecklessness. But
they cannot understand the quandary posed by Trump: a Congress is more
warlike than the President. President Trump withdrew U.S. troops from the
Syrian-Turkish border and abandoned America’s Kurdish allies. While his
decision triggered howls of complaint from the military, members of
Congress, and the national security establishment, the legislature cannot
force the President to fight a war he does not want to fight. Congress can pay
for the military, and even declare war, but it cannot decide tactics, strategy,
or the deployment of the armed forces. Only the President, under the
Constitution, has the authority as Commander-in-Chief to make those
fundamental decisions. While Trump’s critics may want U.S. troops to
remain in Syria or Afghanistan, they cannot prevent a President from
withdrawing from a fight abroad. And in keeping true to his campaign
promise to end these wars, regardless of their strategic benefits or costs,
Trump is defending the power of all future Presidents to command the
military in war.

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TRUMP AT WAR

Donald Trump campaigned on ending foreign wars. In his view,

* Emanuel S. Heller Professor of Law, University of California at Berkeley School of Law;

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I. THE TRUMP STRATEGY FOR WAR

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Attacking President Trump as a violator of the Constitution’s war

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I was chairman of the Judiciary Committee for 17

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Obama and his cabinet found it easier to claim constitutional principle

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hostilities against other nations.107 Under international and domestic law at

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113 113. U.S. Const. art. II, § 1, cl 1; US Const Art II, § 3.

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congressional authorization. 122 Critics of presidential activism in national

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foreign affairs and national security areas, where an absence of judicial

127. Supra note 24, at _.

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No State shall, without the Consent of Congress, lay any

If we take seriously the idea of a written Constitution, then the same

130. US Const. art I, §10, cl. 3.

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extend the protections of the laws of war to private forces acting in

133. See Yoo, 84 Cal L Rev at 250–52.

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151. John Yoo, 69 U. CHI. L. REV. at 1672. 151.

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154. US Const Art I, §1.

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prominent conservative critics of the President’s war powers, Professors

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the nature of things, be proper or safe judges, whether a war ought to be

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government.195 Presidential critics do not explain why those who generally

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independent and possessed “the Executive rights vested in Congress by the

212. Id. at 21.

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interpretation that gave the President an authority to declare war, because a

220. 2 id. at 319.

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