Congress, the President, and the War Powers

Abstract

The issue before us is the constitutional authority of Congress and the President to commit forces to armed combat and questions related to such authority. These questions have been the subject of considerable debate and scholarly attention.' Unfortunately, they are often approached polemically, with one side arguing the President's constitutional authority as Commander in Chief and the other asserting Congress' constitutional power to declare war; the implication often given is that these powers are somehow incompatible. On the contrary, the framers of the Constitution intended that there be a proper balance between the roles of the President and Congress in decisions to use force in the conduct of foreign policy. In discussing these issues, I will first review the historical background of the war powers question, beginning with the Constitution itself and tracing the practice of the nation throughout our history. Then, placing the war powers issue in the modern context, I will discuss the issues which bear upon the exercise of presidential and congressional powers now and in the foreseeable future. Finally, from this perspective, I will describe what I believe the national interest requires in terms of a proper balance between the President and the Congress. At the outset I would like to stress my belief that cooperation and consultation between the executive and legislative branches is the heart of the political process as conceived by the framers of the Constitution. In the absence of such cooperation, no legislation which seeks to define constitutional powers more rigidly can be effective. Conversely, given such cooperation, such legislation is unnecessary. The execu-