The question of whether or not the president has the power to make war is a controversy only because of demagogic politicians, their sycophant groupies, and lawyers. With President Obama putting the United States in yet another needless war, the punditry is alive with constitutional debate. Most notable are National Review's "We Do Declare," and radio host Mark Levin's cheap shot at Rep. Ron Paul (R-TX).
Now, I'm not an attorney, nor do I play one on tv. My educational and professional background is in economics and finance. Oh, and not being an attorney, I'm capable of reading the English language without twisting the meaning of words ("It depends upon what the meaning of the word 'is' is."). With those qualifications (or lack thereof) in mind, let's take a look at presidential war powers.
Article I of the Constitution unquestionably gives Congress, not the president, the "power . . . to declare War."
With the war still fresh on their minds, the delegates to the Constitutional Convention were determined not to make the American executive like the British monarchy (King George III had total power over war). The Confederate Army had been disbanded after the war out of a deep distrust for standing armies, and history taught the Framers that the executive had a propensity for war, and war destroys liberty at home. As James Madison wrote to Thomas Jefferson:
The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war in the Legislature.
Even the biggest supporter of a powerful central government and broad presidential powers, Alexander Hamilton, argued during the Pacificus-Helvidius debates that the legislature "can alone actually transfer the nation from a state of peace to a state of hostility." Hamilton further explained in Federalist No. 74 that, designation as commander-in-chief provided the president "the direction of war when authorized or begun," but did not bestow the executive with the power to make war.
As head of the constitutional convention and first president under the new constitutional regime, it's safe to say George Washington knew a thing or two about original intent. When he acted on his own authority against the Indians, his orders were strictly defensive. "The Constitution vests the power of declaring war with Congress," Washington declared, "therefore no offensive expedition of importance can be undertaken until after they have deliberated upon the subject, and authorized such a measure."
Anyone who reads the Constitution, the Federalist Papers and Anti-Federalist Papers themselves, will come to the same conclusion. The president does not have the constitutional authority to make war. That power resides with Congress. And that only politicians, lawyers, and sycophants want that power concentrated in the hands of the Dear Leader they chose for partisan reasons.
"Declaration" of War
One argument in favor of concentrating war powers in the executive is that a declaration of war is, in Mark Levin's words, simply "a diplomatic statement of fact." John Yoo leaned on this argument to expand the Bush administrations war powers too, and Robert Delahunty makes the same case over at National Review.
What we're supposed to believe here is that, the Framers, who wanted the power to initiate hostilities vested in one person, also felt it necessary for the entire legislation to convene for debate before "a diplomatic statement of fact" could be issued. What? That doesn't even makes sense on it's face. War? That's easy. Diplomatic rhetoric? We gotta think about that.
At the Pennsylvania Ratifying Convention on December 11, 1787, James Wilson explained that by vesting the power of war in Congress, "This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our interest can draw us into war."
James Wilson was both a delegate to the constitutional convention and signer of the Declaration of Independence, but maybe you find those credentials lacking compared to the "brilliance" of Mark Levin and John Yoo. Maybe George Washington, James Madison, and Alexander Hamilton have failed to convince you too. I mean, what could these guys possibly know? Well then, how about Abraham Lincoln?
Lincoln certainly wasn't shy about expanding the powers of the executive, he even waged war on his own countrymen. Yet, on February 15, 1848, Abraham Lincoln wrote the following report to the House of Representatives regarding the Mexican War:
Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose, and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after having given him so much as you propose. If to-day he should choose to say he thinks it necessary to invade Canada to prevent the British from invading us, how could you stop him? You may say to him,--"I see no probability of the British invading us"; but he will say to you, "Be silent: I see it, if you don't."
The provision of the Constitution giving the war making power to Congress was dictated, as I understand it, by the following reasons: kings had always been involving and impoverishing their people in wars, pretending generally, if not always, that the good of the people was the object. This our convention understood to be the most oppressive of all kingly oppressions, and they resolved to so frame the Constitution that no one man should hold the power of bringing this oppression upon us.
According to Lincoln, the idea that the executive can make war destroys the Constitution "and places our President where kings have always stood."
During the Quasi War with France, President John Adams acted on a series of acts passed by Congress. Authorized to seize ships sailing to French ports, Adams, on his own accord, ordered the Navy to seize ships sailing both to and from French ports. Adams ended up creating legal problems for the captains of the American ships.
Just before Thomas Jefferson's inauguration in 1801, Congress passed legislation authorizing 6 naval vessels that "shall be officered and manned as the President of the United States may direct." If war was declared on the United States by the Barbary powers, these ships were to "protect our commerce & chastise their insolence – by sinking, burning or destroying their ships & Vessels wherever you shall find them."
When Tripoli declared war on the U.S. in 1801, Jefferson sent a small force to the area to protect American ships. But that's it. Jefferson said that he was "unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense" because only Congress could authorize "measures of offense also." Congress would go on to pass at least 10 statutes authorizing "warlike operations against the regency of Tripoli, or any other of the Barbary powers."
Jefferson was also concerned about Spain advancing on American territory, but:
Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force ... But the course to be pursued will require the command of means which it belongs to Congress exclusively to yield or to deny. To them I communicate every fact material for their information and the documents necessary to enable them to judge for themselves. To their wisdom, then, I look for the course I am to pursue, and will pursue with sincere zeal that which they shall approve.
Again, the intent of the Framers is as clear as day. Have some presidents blatantly ignored the limits on their office? Of course they have. But constitutional violations shouldn't stand as precedents to make them right. That's ridiculous. Power is a dangerous thing, and nothing is more dangerous than the power to make war. Let's be honest here ...
The only thing war has given us at home is curtailed freedoms, violated rights, restricted travel, restricted finances, invasions of our privacy, militarized police, legitimized torture, the Pentagon, Homeland Security, TSA, PATRIOT Act, demagogic politicians, dead brothers and sisters, broken families, high taxes, and trillions of dollars of debt. Presidential war powers are and have been all throughout history, a threat to peace and liberty.