Under the United States Constitution, the president, as chief executive, does not have the power to “make war.” The president, as commander-in-chief of the armed forces, has the power to organize and commit those armed forces for the protection of the United States and its interests. The U.S. Congress has the power to declare war and/or to fund the military operations ordered by the president. Thus, there is an argument that a constitutional amendment to...
Under the United States Constitution, the president, as chief executive, does not have the power to “make war.” The president, as commander-in-chief of the armed forces, has the power to organize and commit those armed forces for the protection of the United States and its interests. The U.S. Congress has the power to declare war and/or to fund the military operations ordered by the president. Thus, there is an argument that a constitutional amendment to restrict the president’s power to make war is unnecessary since the president does not have the power to make war without the approval of the Congress, either via declaration of war or the continued funding of military operations.
However, the power of the president to initiate the use of armed forces in situations that might subsequently require Congress to declare war or authorize expenditures for continued military operations created some tensions between Congress and the executive branch in the 1960s and 70s. In 1973, Congress passed the War Powers Act, over President Nixon’s veto, which set forth the parameters for the presidential use of the military in imminent or existing hostilities. Under the War Powers Act, the president must consult with congress before inserting U.S. armed forces into hostilities and then continue to consult with Congress for the duration of the commitment of the armed forces. Additionally, under the act the armed forces must be withdrawn within 60 days of the report of insertion of the armed forces unless Congress approves continued military action.
The constitutionality of aspects of the War Powers Act is a continuing issue. Opponents of the act argue that not only does it improperly limit the power of the executive branch, it also gives Congress authority to enact resolutions that limit the executive’s power without being subject to the executive’s veto, which is a separation of powers issue. Thus, a possibility for an amendment to the U.S. Constitution that would restrict the president’s ability to insert armed forces into non-emergency situations would be an amendment that either included the language of the War Powers Act, thus resolving the questions of the constitutionality of the act, or an amendment that authorized Congress’s direct oversight of the continuing commitment of the armed forces, much as Section 5 of the Fourteenth Amendment gave Congress the authority to directly enforce the implementation of the due process rights guaranteed in that amendment.
As we prefer to keep amendments to the constitution less specific than individual legislation tends to be, an amendment with the actual provisions of the War Powers Act would likely not be the best avenue for an amendment limiting the power of the president to commit the U.S. armed forces. Instead, an amendment authorizing Congress to directly monitor and oversee the commitment of the armed forces for non-emergency situations might be workable. Any such amendment would likely need to include a provision that Congress could enforce the provisions of the amendment through appropriate legislation.
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