# What are the limits on the President's war powers? **URL:** \ **Category:** Great Debates\ **Created:** [August 16, 2007, 8:31pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851 "2007-08-16T20:31:49Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![zamboniracer](https://avatars.discourse-cdn.com/v4/letter/z/e9a140/32.png) [@zamboniracer](https://boards.straightdope.com/u/zamboniracer)\ **Post date:** [August 16, 2007, 8:31pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/1 "2007-08-16T20:31:49Z")
I recently stumbled across an interesting take on the limits on the U.S. President’s power to make war, which the current president appears to believe are limitless. A certain columnist believes that the war powers are specifically limited by Congress. > [@](#): > > Turning to the United States Constitution, George W. Bush said in Washington in 2007, “I don’t think Congress ought to be running the war.” The Founding Fathers said in Philadelphia in 1789, “The Congress shall have the power to … declare war, grant Letters of Marque and Reprisal, and make rules concerning captures on land and water.” The founders were quite clear that they wanted Congress running wars, among other things declaring only Congress could approve funds “to raise and support armies” and that congressional approval for military spending might last no longer than two years. > > What are “letters of marque and reprisal?” The writers of United States Constitution assumed the new nation would have a permanent navy but no standing army: If an army was needed, it would be raised and funded on a two-year basis. Yet the framers knew international circumstances might call for military action short of sending an army into battle. Letters of marque grant to mercenaries – at the time, it was normal for nations to retain soldiers-for-hire – the right to act in America’s name for a specific purpose, such as taking back some thing or location seized by privateers. Letters of reprisal could confer on the Navy, or on mercenaries, color of the flag to conduct a specific retaliation in America’s name. The modern meaning of “letters of marque and reprisal” is “commando raids and air strikes.” > > So the Founding Fathers did not merely grant Congress sole power to declare war – they expected Congress to be involved in the conduct of war, by such means as issuing specific instructions regarding what could and could not be attacked on land or water. The Commander in Chief clause of the Constitution mainly serves to make clear that the executive is superior to the military – the framers did not want the U.S. military resisting civilian control, as did some European militaries of the era. Bush and other modern presidents of both parties have behaved as though the Commander in Chief clause locates in them unilateral authority for all use of force: the Founding Fathers would be horrified to learn that Bush and other modern presidents act as though they have unchecked powers in matters of war. Here’s the text of the United States Constitution, which all Americans including our current president ought to take a few moments to familiarize themselves with. The columnist is Gregg Easterbrook and the above quote is from his August 10, 2007 column, “Tuesday Morning Quarterback” on [ESPN.Com](http://ESPN.Com). [Cite](http://myespn.go.com/conversation/story?id=2963789) . What say the Dopers, particularly those conservative Republicans who still support the war? (Although to be fair, Democratic presidents also favored expansive war powers.) ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 16, 2007, 9:19pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/2 "2007-08-16T21:19:40Z")
I’d be interested in hearing from those posters here who scoff at originalist or textualist interpretations of the constitution. Anyway, it looks like the founders got one thing wrong (from your quote): > [@](#): > > The writers of United States Constitution assumed the new nation would have a permanent navy but no standing army… Your cite also goes on to say: > [@](#): > > The modern meaning of “letters of marque and reprisal” is “commando raids and air strikes.” I’d like to know where he got that idea. Doesn’t sound right to me: > [@](#): > > [Letter of Marque and Reprisal](http://en.wikipedia.org/wiki/Letter_of_marque#United_States_of_America) > > A Letter of Marque and Reprisal is an official warrant or commission from a national government authorizing the designated agent to search, seize, or destroy specified assets or personnel belonging to a party which has committed some offense under the laws of nations against the assets or citizens of the issuing nation, and has usually been used to authorize private parties to raid and capture merchant shipping of an enemy nation. > > The formal statement of the warrant is to authorize the agent to pass beyond the borders of the nation (“marque”, meaning frontier), and there to search, seize, or destroy assets or personnel of the hostile foreign party (“reprisal”), not necessarily a nation, to a degree and in a way that was proportional to the original offense. It is considered a retaliatory measure short of a full declaration of war, and by maintaining a rough proportionality, has been intended to justify the action to other nations, who might otherwise consider it an act of war or piracy. As with a domestic search, arrest, seizure, or death warrant, to be considered lawful it needs to have a certain degree of specificity, to ensure that the agent does not exceed his authority and the intent of the issuing authority. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [August 16, 2007, 9:28pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/3 "2007-08-16T21:28:22Z")
I’m a bit skeptical. Most of our wars and skirmishes have begun without Congress explicitly authorizing anything, and some of these ended before Congress took up the matter at all. The proper role seems to be for Congress to authorize continuing operations. That seems to fit well with explicit constitutional mandates and what common sense would dictate would be necessary in a war, with speed of action and sensitivity of operational security both critical. ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 16, 2007, 9:43pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/4 "2007-08-16T21:43:42Z")
Letters of marque and privateering were outlawed by the 1856 [Paris Declaration Respecting Maritime Law.](http://en.wikipedia.org/wiki/Declaration_of_Paris) The United States, however, was not a signatory. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 17, 2007, 2:25am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/5 "2007-08-17T02:25:38Z")
[QUOTE=BrainGlutton] Letters of marque and privateering were outlawed by the 1856 [Paris Declaration Respecting Maritime Law.](http://en.wikipedia.org/wiki/Declaration_of_Paris) The United States, however, was not a signatory. [/QUOTE] Our lack of interest in these types of international treaties (ICC, Kyoto, Land Mines…) seems to have a long history. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 17, 2007, 2:31am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/6 "2007-08-17T02:31:28Z")
I’ve been a flip-flopper on this issue. On one hand, we can’t be like in 1800 when it took weeks for messages to arrive from across the sea to debate a war in Congress when nukes are blowing up San Diego. On the other hand, a President shouldn’t have a protracted war like in Vietnam, or Iraq without the founders’ intent of a declaration of war. IMHO, Iraq was the perfect modern example for a declaration of war. No emergency (obviously, since it took over a year to invade) and plenty of debate. But again, Congress has only itself to blame. They don’t have the cajones to cut off funding because they fear political backlash? Well, shame on them, because that is their ONLY redress short of impeachment. ---
**Author:** ![Kid\_A\_1](https://avatars.discourse-cdn.com/v4/letter/k/ed8c4c/32.png) [@Kid\_A\_1](https://boards.straightdope.com/u/Kid_A_1)\ **Post date:** [August 17, 2007, 2:41am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/7 "2007-08-17T02:41:04Z")
[Off-Topic] Why the hell is the TMQ writing about Bush and the constitution? ESPN. Sports. Football. I don’t turn to you for political analysis. Og, I hate Gregg Easterbrook so much. [/Off-Topic] ---
**Author:** ![E-Sabbath](https://avatars.discourse-cdn.com/v4/letter/e/e19adc/32.png) [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)\ **Post date:** [August 17, 2007, 3:03am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/8 "2007-08-17T03:03:12Z")
[QUOTE=John Mace] Our lack of interest in these types of international treaties (ICC, Kyoto, Land Mines…) seems to have a long history. [/QUOTE] Honestly, we never seem to have all that much interest in the political fashion of Europe. Go figure. ---
**Author:** ![Zoe](https://avatars.discourse-cdn.com/v4/letter/z/a4c791/32.png) [@Zoe](https://boards.straightdope.com/u/Zoe)\ **Post date:** [August 17, 2007, 4:15am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/9 "2007-08-17T04:15:37Z")
> [@](#): > > **jtgain** : On the other hand, a President shouldn’t have a protracted war like in Vietnam, or Iraq without the founders’ intent of a declaration of war. I agree, but as outrageous as it may sound, Congress did not declare war on North Vietnam. It was never a “war.” It was something friendlier like an “armed conflict” or a “military action.” And Korea was a “police action.” I suggest “focused embattlement” for Iran. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 17, 2007, 6:30am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/10 "2007-08-17T06:30:37Z")
[QUOTE=jtgain] Well, shame on them, because that is their ONLY redress short of impeachment. [/QUOTE] No. They could rescind their Authorization for Use of Military Force. ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [August 17, 2007, 6:47am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/11 "2007-08-17T06:47:42Z")
[QUOTE=Bricker] No. They could rescind their Authorization for Use of Military Force. [/QUOTE] What do you think that would accomplish? ---
**Author:** ![treis](https://avatars.discourse-cdn.com/v4/letter/t/bc79bd/32.png) [@treis](https://boards.straightdope.com/u/treis)\ **Post date:** [August 17, 2007, 7:37am UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/12 "2007-08-17T07:37:33Z")
[QUOTE=Mr. Moto] I’m a bit skeptical. Most of our wars and skirmishes have begun without Congress explicitly authorizing anything, and some of these ended before Congress took up the matter at all. [/QUOTE] That’s not really true. Wars without a declaration of war are a relatively recent development. The War of 1812, Mexican American War, Spanish-American War, WWI, and WWII all had formal declarations of war. Korea was the first foreign war undertaken with out a declaration of war by Congress. ---
**Author:** ![Mr.Moto](https://avatars.discourse-cdn.com/v4/letter/m/9de0a6/32.png) [@Mr.Moto](https://boards.straightdope.com/u/Mr.Moto)\ **Post date:** [August 17, 2007, 12:54pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/13 "2007-08-17T12:54:54Z")
[QUOTE=treis] That’s not really true. Wars without a declaration of war are a relatively recent development. The War of 1812, Mexican American War, Spanish-American War, WWI, and WWII all had formal declarations of war. Korea was the first foreign war undertaken with out a declaration of war by Congress. [/QUOTE] Not really. Do you think our involvement in World War II began when we declared war against the Japanese? Amazingly enough, our sailors, soldiers and airmen at Pearl Harbor shot back. They shot back at Wake Island, Midway, the Philippines, and Guam as well. These attacks by the Japanese all predated the war declaration. Furthermore, when FDR made his famous “date which will live in infamy” speech, he asked the Congress for a war declaration that recognized the existence of a war that was already going on: > [@](#): > > I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, 7 December 1941, a state of war has existed between the United States and the Japanese Empire. The actual declaration of war recognizes the existence of that existing war as well: > [@](#): > > JOINT RESOLUTION Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same. > > Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: > > Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, > That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; > and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; > and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States. > > Approved, December 8, 1941, 4:10 p.m. E.S.T. It is also hardly true that formal declarations of war were required in the past - the First Barbary War was an early example of an instance when Congress approved an action without explicit declaration of war. This was done by guys who actually wrote the Constitution, so I think they’d be sticklers for that if it bothered them. So historic precedent backs up my view. The executive can act - the military can start shooting or shoot back. The Congress can approve or disapprove by authorizing or rescinding funds to be spent on the operations. Perfectly logical and constitutional. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 17, 2007, 5:52pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/14 "2007-08-17T17:52:47Z")
[QUOTE=Bricker] No. They could rescind their Authorization for Use of Military Force. [/QUOTE] Exactly, and that is what I’ve been saying they should do for some time now. In fact, I think that might be necessary before funding can be taken away. After all, how can Congress have authorized something and then refused to fund it? Bush could be justified (perhaps) in shifting funds from somewhere else if he thought continuing the war was important enough. The only problem with that, potentially, is that the AUMF that authorized the invasion of Afghanistan is so broad that it could easily be interpreted as applying to Iraq. Not pre-war Iraq so much, since A-Q was not a presence there, but A-Q is there now. Or at least something that calls itself A-Q, and that even many Democratic Senators agree is A-Q (including Hillary, Obama, and former Senator Edwards). ---
**Author:** ![BrainGlutton](https://avatars.discourse-cdn.com/v4/letter/b/82dd89/32.png) [@BrainGlutton](https://boards.straightdope.com/u/BrainGlutton)\ **Post date:** [August 17, 2007, 6:18pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/15 "2007-08-17T18:18:02Z")
[QUOTE=John Mace] After all, how can Congress have authorized something and then refused to fund it? [/QUOTE] What, there’s no precedent for that? ---
**Author:** ![Captain\_Amazing](https://avatars.discourse-cdn.com/v4/letter/c/6de8d8/32.png) [@Captain\_Amazing](https://boards.straightdope.com/u/Captain_Amazing)\ **Post date:** [August 17, 2007, 6:22pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/16 "2007-08-17T18:22:59Z")
[QUOTE=treis] Korea was the first foreign war undertaken with out a declaration of war by Congress. [/QUOTE] I think the Quasi-war against France was. I don’t believe there was a DoW in the Barbary Wars either. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 17, 2007, 6:39pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/17 "2007-08-17T18:39:35Z")
[QUOTE=BrainGlutton] What, there’s no precedent for that? [/QUOTE] I don’t know. My points was that if the authorization still stands, the president should be able to continue doing it as long as he can shuffle funds around. That would be a lot of shuffling, since the war is very expensive, but it is theoretically possible at least. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 17, 2007, 10:33pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/18 "2007-08-17T22:33:19Z")
[QUOTE=John Mace] I don’t know. My points was that if the authorization still stands, the president should be able to continue doing it as long as he can shuffle funds around. That would be a lot of shuffling, since the war is very expensive, but it is theoretically possible at least. [/QUOTE] Congress could stop the “shuffling” of funds by inserting a line in the military spending bill like: “No monies in this Act, shall be allocated to military action in the country of Iraq, except as related to the immediate and unconditional withdrawal of said miltary..” IANAL, so I’m sure it could be drafted better than that, but Congress could make certain that no public money was authorized for continued Iraq combat… ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 17, 2007, 10:36pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/19 "2007-08-17T22:36:36Z")
[QUOTE=John Mace] Exactly, and that is what I’ve been saying they should do for some time now. In fact, I think that might be necessary before funding can be taken away. After all, how can Congress have authorized something and then refused to fund it? Bush could be justified (perhaps) in shifting funds from somewhere else if he thought continuing the war was important enough. The only problem with that, potentially, is that the AUMF that authorized the invasion of Afghanistan is so broad that it could easily be interpreted as applying to Iraq. Not pre-war Iraq so much, since A-Q was not a presence there, but A-Q is there now. Or at least something that calls itself A-Q, and that even many Democratic Senators agree is A-Q (including Hillary, Obama, and former Senator Edwards). [/QUOTE] I’ll give you one example that I know of: Convicted felons may not possess firearms. However, the BATFE is authorized under the law to take petitions from these ex-felons and investigate and potentially restore their firearm rights. But, since 1992, Congress has prohibited any public monies from being allocated to said effort, so any ex-felon is out of luck by applying under the law to the BATFE.. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [August 17, 2007, 10:39pm UTC](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851/20 "2007-08-17T22:39:44Z")
[QUOTE=jtgain] Congress could stop the “shuffling” of funds by inserting a line in the military spending bill like: “No monies in this Act, shall be allocated to military action in the country of Iraq, except as related to the immediate and unconditional withdrawal of said miltary..” IANAL, so I’m sure it could be drafted better than that, but Congress could make certain that no public money was authorized for continued Iraq combat… [/QUOTE] Why not just revoke the AUMF? That would be a lot easier, and a lot clearer. Besides, an “immediate” withdrawal is physically impossible. And Bush could always veto the spending bill. I don’t think he can veto a cancellation of the AUMF (it should have the same constitutional standing as a declaration of war, which power is reserved to Congress). [Next page](https://boards.straightdope.com/t/what-are-the-limits-on-the-presidents-war-powers/415851.md?page=2)