Executive War Powers: Your Strength is

Just an Accident Owed to the Weakness

of Others
1

LIEUTENANT COLONEL STEVEN GARIEPY

INTRODUCTION

ongressional efforts to curtail executive action during times of war

and national emergencies have been largely ineffective since the end
of World War II.2 Executive authority during times of war and
national emergencies has significantly increased during this same time
period.3 Thus, based on the demonstrated futility of recent congressional
efforts, some might argue that the Framers of the Constitution envisioned
the executive branch exercising a position of strength during times of strife.
The point of this article is to analyze congressional war powers, both
substantively and historically, to shed light on this debate.
From Madisons reverence to Nixons contempt, the perception of this
legislative power has changed dramatically throughout American history.4
From the military drawdown in Afghanistan in 2014 to using appropriations
to fund rebel operations in Syria in 2015, both the executive and legislative
branches continue to highlight the inherent friction within the constitutional
system of checks and balances through their practices. Analyzing the
inherent strengths and weaknesses of congressional power, from a historical
perspective, is necessary to understand both the scope and fluidity of these

1 JOSEPH CONRAD, HEART OF DARKNESS 69 (1988).

Assistant Professor, United States Military Academy at West Point. The views expressed
herein are those of the author and do not reflect the position of the United States Military
Academy, the Department of the Army, or the Department of Defense.
*

2 See John Panera, War Powers Resolution in the Age of Drone Warfare: How Drone Technology
Has Dramatically Reduced the Resolutions Effectiveness as a Curb on Executive Power, 33 HAMLINE
J. PUB. & POLY 387, 399400 (2012).
3 See Tara L. Branum, President or King? The Use and Abuse of Executive Orders in Modern-Day
America, 28 J. LEGIS. 1, 2, 9 (2002).
4

See id. at 30, 83.

49

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powers during times of war and national emergencies. While history clearly
supports the prominence of executive powers during times of national
emergencies and war, in analyzing the desirability of this prominence, the
question is whether it is just an accident owed to the weakness of the
legislative branch, or the Framers original intent.
I.

Allocation of War PowersUnderstanding Original Intent

The framers expected Congress to play a leading role in deciding

foreign and defense policy.5 However, it is the Executive who is fulfilling
this role in the modern era. In fact, the Justice Department asserted in 2001
that the Constitution vests the President with the plenary authority, as
Commander-in-Chief and the sole organ of the Nation in its foreign
relations, to use military force abroadespecially in response to grave
national emergencies created by sudden, unforeseen attacks on the people
and territory of the United States.6 Therefore, it becomes necessary to
analyze the origins and historical evolution of congressional war powers to
determine the veracity of this assertion. The beginning point is to consider
four of the principal legislative powers, which are addressed in this essay:
(1) the power of the purse;7 (2) the power to raise and support Armies and
provide for a Navy;8 (3) the power to declare war; and (4) the power to
investigate.9 While only the first three of these powers are expressly
enumerated in the Constitution, the Supreme Court has recognized that [a]
legislative body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is intended to
affect or change[. . . .]10
A plain reading of Article I, section 8 of the Constitution demonstrates
the Framers unambiguous decision to place the power of the purse in the
hands of the legislature.11 James Madison wrote extensively on both the
significance of this power, as well as the rationale behind placing it in the

LOUIS FISHER, DEFENDING CONGRESS AND THE CONSTITUTION 235 (2011).

Louis Fisher, The Law: Presidential Inherent Power: The Sole Organ Doctrine, 37
PRESIDENTIAL STUD. Q. 139, 139 (2007).
7

See U.S. CONST. art. I, 9, cl. 7.

U.S. CONST. art. I, 8, cl. 12; U.S. CONST. art. I, 8, cl. 13.

9 U.S. CONST. art. I 8, cl. 11; Watkins v. U.S., 354 U.S. 178, 187 (1957); James Hamilton et al.,
Congressional Investigations: Politics and Process, 44 AM. CRIM. L. REV. 1115, 1121 (2007).
10
11

McGrain v. Daugherty, 273 U.S. 135, 175 (1927).

See U.S. CONST. art. I, 8, cl. 1 (The Congress shall have Power To lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general
Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout
the United States[. . . .]).

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hands of the legislative branch.12 The power of the purse, in his opinion,
represents the most complete and effectual weapon with which any
constitution can arm the immediate representatives of the people, for
obtaining a redress of every grievance, and for carrying into effect every just
and salutary measure.13 The Framers assumed that the people could risk
vesting war powers and the command of a standing army in the president
because Congress retained control of the means of war.14
From time to time, Congress has used the power of the purse to place
conditions and prohibitions on presidential activities in foreign affairs.
Angola, Nicaragua, Somalia, and Vietnam are but a few of the historical
examples where Congress exercised its constitutionally-vested authority to
raise and support armies in an effort to influence executive foreign policy
decisions in these countries.15 Congressional efforts to place restrictions and
limitations on the use of appropriated funds for the military and
paramilitary activities within these countries, while not always successful,
support the conclusion that the power of the purse has become, by necessity
and preference, a key congressional tool for participating in national security
decision making, a congressional counterweight to presidential initiative.16
In exercising such influence, Congress is not only exercising the
constitutional powers accorded it in Section 8, Article I; it is are also fulfilling
constitutional responsibilities set forth within the Appropriations Clause.17
The Appropriations Clause provides that [n]o Money shall be drawn
from the Treasury, but in Consequence of Appropriations made by Law . . .
.18 Generally, an appropriation is thought of as the specification of an
amount of money (a congressional allocation of money) for a federal agency,
often to perform a specific function, as provided for in other legislation.19
However, the Appropriations required by the Constitution, are not only
legislative specifications of money amounts, but also legislative
specifications of the powers, activities, and Purposeswhat we may call,
simply, objectsfor which appropriated funds may be used.20 As such,

12

See, e.g., THE FEDERALIST No. 58 at 29798 (James Madison) (Ian Shapiro ed., 2009).

13

Id.

14

WILLIAM C. BANKS & PETER RAVEN-HANSEN, NATIONAL SECURITY LAW AND THE POWER OF
27 (1994).

THE PURSE

15 See JEREMY BLACK, INTRODUCTION TO GLOBAL MILITARY HISTORY: 1775 TO THE PRESENT
DAY 201 (2d ed. 2013).
16

See BANKS & RAVEN-HANSEN, supra note 14, at 3.

17

See U.S. CONST. art. I, 9.

18

U.S. CONST. art. I, 9, cl. 7.

19

Kate Stith, Congress' Power of the Purse, 97 YALE L.J. 1343, 1352 (1988).

20

Id. (emphasis omitted).

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a fundamental and comprehensive purpose of the Appropriations Clause

is to assure that public funds will be spent according to the letter of the
difficult judgments reached by Congress as to the common good and not
according to the individual favor of government agents.21
The Appropriations Clause represented an effort by the Framers to
regulate both the executive and legislative branches. As Alexander Hamilton
explained, no money can be expended, but for an object, to an extent, and
out of a fund, which the laws have prescribed [and] the extent or amount
of funding modifies and shapes the object funded.22 In Hamiltons view,
it is not enough for Congress to direct federal agencies to produce a better
world; nor is it enough for Congress to list the authorized activities in which
the executive branch of the government may engage . . . . Congress must
affirmatively authorize the funds to do the job.23
At the same time, the appropriations clause enjoins the President to
spend funds in the name of the United States only as appropriated by
Congress.24 Therefore, even where the President believes that Congress
has transgressed the Constitution by failing to provide funds for a particular
activity, the President has no constitutional authority to draw funds from
the Treasury to finance the activity.25 Simply put, [one] purpose of [the]
appropriations clause is to place authority to dispose of public funds firmly
in the hands of Congress, rather than the Executive.26
When it denies appropriations, Congress decides that, under our
constitutional scheme, for the duration of the appropriations denial, the
specific activity is no longer within the realm of authorized government
actions. Moreover, the purpose of appropriations, and terms and conditions
under which they are made, is a matter solely in the hands of Congress. It is
an explicit duty of the executive branch to comply therewith. Any attempt
by the judicial branch to interfere therewith would be a plain invasion of the
constitutional powers of Congress.27 As such, by restricting or denying the
use of appropriated funds for a particular activity, Congress achieves the
same effect as refusing to enact an appropriation in the first place.
Regarding a third complementary power, it is well recognized that
Congress has exclusive authority to determine the requirements of national

21

Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 42728 (1990).

22

Stith, supra note 19, at 1354 (emphasis omitted).

23

Id. at 1350.

24

Id. at 1351.

25

Id.

26

Am. Fedn of Govt Emps., Local 1647 v. Fed. Labor Relations Auth., 388 F.3d 405, 40809
(3d Cir. 2004).
27

Spaulding v. Douglas Aircraft Co., 60 F. Supp. 985, 988 (S.D. Cal. 1945).

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Executive War Powers

53

defense and the amount of tax revenue to be used for defense or military
purposes.28 In Madisons opinion, [t]hose who are to conduct a war cannot
in the nature of things, be proper or safe judges, whether a war ought to be
commenced, continued, or concluded.29 In line with this reasoning, the
Constitution provided the legislature with exclusive authority to commence
(declare) war as well as raise and support armies.30 It is important to note
that these authorities are complementary in nature. It was not intended that
the powers should be so linked together as to prohibit Congress from raising
an army before Congress had declared war when as in its judgment it is
imperative or needed, or an emergency exists.31
Appropriations for raising and supporting armies, unlike general
congressional appropriations outlined above, are expressly limited to a
period no longer than two years.32 This limitation, according to Hamilton,
was necessary to ensure that [t]he legislature of the United States would be
obliged by this provision, once at least every two years, to deliberate upon
the propriety of keeping a military force on foot; to come to a new resolution
on the point; and to declare their sense of the matter by a formal vote in the
face of their constituents.33
However, in the original drafts of the Constitution, the Framers made a
purposeful distinction between appropriations intended to raise and
support armies and those appropriations intended to provide and
maintain for the navy.34 This artificial distinction likely reflected the
prevailing fears that the maintenance of a large standing federal army posed
a threat to the Union. As such, according to this distinction, the two-year
limitation on appropriations applied to armies, but not navies. The Framers,
primarily concerned about a standing army, were less concerned that funds
might remain available over a period of years for the construction of
vessels.35
Subsequent congressional policy, based on this artificial distinction, has
succeeded in avoiding constitutional challenges to military appropriations
exceeding two years. So long as these appropriations were expressly for the
purposes of equipping the military, versus maintaining and supporting the
military, the two-year limitation was inapplicable. Moreover, as addressed
28

Farmer v. Rountree, 149 F. Supp. 327, 329 (M.D. Tenn. 1956).

29

FISHER, supra note 5, at 192 (emphasis in original).

30

U.S. CONST. art. I, 8, cl. 1112.

31

United States v. Cornell, 36 F. Supp. 81, 84 (D. Idaho 1940).

32

Stith, supra note 19, at 1354 n.53.

33

BANKS & RAVEN-HANSEN, supra note 14, at 31 (emphasis in original).

34

FISHER, supra note 5, at 195.

35

Id.

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below:
the power to declare war is also the power to prepare for, maintain,
and carry on war, offensive and defensive; of constructing and
arming forts and fortifications, providing heavy artillery, arms,
ammunition, and all other means of warfare. This may and often
does require appropriations for more than two years.36

The Constitution provides that Congress shall have the power to declare
war,37 and many argue that [the] purpose of the Declare War Clause is to
preserve republican government by keeping the power to initiate war in the
legislative branch.38 The Framers placed this power squarely in the hands
of the legislature because they believed that Executives . . . have a natural
appetite for war . . . [and] a variety of . . . motives, which affect only the mind
of the sovereign, often lead him to engage in wars not sanctified by justice
or the voice and interests of his people.39 In their opinion, the trust of
executive judgment applies to defensive actions at a time of emergency, not
to general or offensive military actions.40
While the executive retained the authority to repel sudden attacks
against the nation, requiring congressional authorization to initiate war was
envisioned as an effective check against these concerns.41 The Framers
intended that Congress would make a formal declaration of war, but the
president would conduct warfare.42 However, the nature of this
relationship is both fluid and far more complex in nature than it appears.
Although the United States has committed troops abroad hundreds of times
since the 1790s, including current operations in Afghanistan and recent
operations in Iraq, Congress has issued a formal declaration of war in only
five of these conflicts.43 In fact, since the last formal declaration of war was
issued in 1941, well over a hundred thousand Americans have died in a
variety of undeclared wars.44

36

Constitutional ProhibitionAppropriations for Armies, 25 Op. Atty Gen. 105, 107 (1904).

37

U.S. CONST. art. I, 8, cl. 11.

38

FISHER, supra note 5, at 243.

39

Id. at 241.

40

See id.

41

See THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 31820 (Max Farrand ed., 2011).

42

DAVID BRIAN ROBERTSON, THE ORIGINAL COMPROMISE: WHAT THE CONSTITUTIONS

FRAMERS WERE REALLY THINKING 212 (2013).
43 See JENNIFER K. ELSEA & MATTHEW C. WOOD, DECLARATIONS OF WAR AND
AUTHORIZATIONS FOR THE USE OF MILITARY FORCE: HISTORICAL BACKGROUND AND LEGAL
IMPLICATIONS 1 (2014), available at https://www.fas.org/sgp/crs/natsec/RL31133.pdf.
44

See American War Deaths Through History, MILITARY FACTORY, http://www.militaryfactory

.com/american_war_deaths.asp (last updated Nov. 11, 2015).

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55

While congressional authorization for the use of military force was

obtained by the executive in several instances, including both the wars in
Vietnam and Iraq, these authorizations, characterized as resolutions, are
obviously not a declaration of war, at least in any constitutionally
appropriate sense, and do not fulfill the requirements of the Declare War
Clause.45 If [these] hostilities do not amount to war, the President requires
no prior congressional authorization to engage in them [in the first place]; if
Congress authorizes the President to use offensive military force in such a
situation, its action is precatory or hortatory, but legally insignificant.46 For
example, even though President Obama recently submitted a request to
Congress for the authorization to use military force in Syria, he maintained
that he already had the authority to conduct these operations based on the
Executives power as Commander-in-Chief.47
An additional power, significant and complementary to those already
discussed, is the power to investigate. It is beyond dispute that Congress
may conduct investigations in order to obtain facts pertinent to possible
legislation and in order to evaluate the effectiveness of current laws.48
Congresss power of inquiry regarding possible legislation extends to
investigating how well current laws are being administered by the Executive
Branch.49 Proponents of the congressional power of inquiry believe that [t]o
protect constitutional government, Congress must closely oversee the
executive branch.50 When lawmakers are denied access to executive
branch documents and executive officials refuse to testify before legislative
committees, members of Congress have many powerful tools to compel an
administration to cooperate.51 If a president is uncooperative with a
congressional investigation, Congress may respond by slashing funds,
interfering with the nomination process, and penalizing Executive Branch
members.52
The history of congressional investigations demonstrates that [w]ars
45 BRIEN HALLETT, DECLARING WAR: CONGRESS, THE PRESIDENT, AND WHAT THE
CONSTITUTION DOES NOT SAY 134 (2012).
46

Id.

47

Samuel Kleiner, The Commander-in-Chief and the United Nations: Why the President Can Use
the United Nations Security Council as the Constitutional Basis for Military Operations Short of War,
39 YALE J. INT'L L. 359, 391 (2014).
48 Scope of Cong. Oversight & Investigative Power with Respect to the Exec. Branch, 9 OP.
O.L.C., 60, 60 (1985), available at http://www.justice.gov/olc/file/626841/download.
49

Id.

50

FISHER, supra note 5, at 168.

51

Id. at 175.

52

William P. Marshall, The Limits on Congress's Authority to Investigate the President, 2004 U.
ILL. L. REV. 781, 809 (2004).

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are an especially fertile ground for Congress to investigate,53 and the Iraq
War, from 2003 to 2009, with conflict resuming again in 2014 and continuing
today, was no exception. However, while the power to investigate is
substantial in nature, it is not an unlimited power. Since the power of
Congress to investigate arises only by necessary implication, it is limited by
the ends for which it is implied.54 Thus, [t]here is no general authority to
expose the private affairs of individuals without justification in terms of the
functions of the Congress . . . [no] inquiry is an end in itself; it must be related
to, and in furtherance of, a legitimate task of the Congress.55
Not only is Congress limited in the nature and scope of its investigation,
it is also subject to the same constitutional procedural limitations as any
federal court.56 Congress must also respect the First Amendment rights of
speech, press, religion, political beliefs, and association; it cannot subject a
witness to unreasonable searches and seizure in violation of the Fourth
Amendment; and Congress cannot force a witness to incriminate himself in
violation of the Fifth Amendment.57
II. The Efficacy of Legislative War PowersHistorical Analysis
From 1788 until April 12, 1861, Congresses were by all accounts the
masters of war.58 The Framers originally envisioned a clear distinction
between authorization for the use of military force in self-defense (to repel
sudden attacks against the Nation) and authorization for the offensive use
of force (declare war), granting the former to the executive branch and the
latter to the legislative branch.59 In describing this relationship, President
Washington acknowledged that [t]he Constitution vests the power of
declaring war with Congress; therefore no offensive expedition of
importance can be undertaken until after they have deliberated upon the
subject, and authorized such a measure.60
Similarly, while President Jefferson dispatched naval forces to the
Mediterranean to safeguard American interests against actions by the

53

Matthew Mantel, Congressional Investigations: A Bibliography, 100 LAW LIBR. J. 323, 328
(2008).
54

3 WILLIAM J. RICH, MODERN CONSTITUTIONAL LAW 37:10 (3d ed. 2011).

55

Watkins v. United States, 354 U.S. 178, 187 (1957).

56

See id.

57

Michael J. Davidson, Congressional Investigations and Their Effect on Subsequent Military

Prosecutions, 14 J.L. & POL'Y 281, 287 (2006).
58

BOB DYLAN, Masters of War, on THE FREEWHEELIN' BOB DYLAN (Warner Bros. Inc. 1963).

59

See U.S. CONST. art. I, 8, cl. 11; U.S. CONST. art. II, 2; THE FEDERALIST NO. 69, at 38586
(Alexander Hamilton) (Clinton Rossiter ed., 1999).
60

LOUIS FISHER, PRESIDENTIAL WAR POWER 19 (3d ed. 2013).

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57

Barnaby pirates without prior congressional authorization, during his

consultation with Congress, he acknowledged the limitations of his
authority.61 In his opinion, he was [u]nauthorized by the Constitution,
without the sanction of Congress, to go beyond the line of defense [and] [i]t
was up to Congress to authorize such measures of offense also.62 During
the nineteenth century, the Supreme Court routinely reaffirmed this
relationship, holding in The Chinese Exclusion Case, in 1889, that the warmaking power of the United States was not vested in the President but in
Congress, and that he had no authority, therefore, to order aggressive
hostilities to be undertaken.63
President Lincolns unilateral actions, including suspending the right of
habeas corpus, during the American Civil War were also in-line with the
original Framers intent. As the executive, it was his ultimate duty to take
care that the laws of the union were faithfully executed.64 While Congress is
constitutionally empowered to declare war, the suppression of rebellion
has been recognized as an executive function, for which the prerogative of
setting aside civil procedures has been placed in the Presidents hands.65 As
the Commander-in-chief, Lincoln was authorized to use all necessary and
appropriate force to repel the attacks against the nation. While Lincoln did
not possess the authority to declare war after war was thrust upon him, he
was bound to resist force by force in a state of war that he did not initiate.
When the country finds itself in the reality of a war initiated by others
whether foreign invaders or sufficiently organized rebelsthe President
was bound to meet it in the shape it presented itself, without waiting for
Congress to baptize it with a name; and no name given to it by him or them
could change the fact.66 Other [i]nterventions undertaken without
congressional approval were, for the most part, small-scale actions to protect
American property, citizens, or honor abroad that had little risk of
significant combat.67 Without a large standing army, larger-scale actions
required the President to seek congressional approval for expanded military
61

Id. at 24546.

62

Id. at 245.

63

Ping v. United States, 130 U.S. 581, 591 (1889) (The Chinese Exclusion Case).

64

U.S. CONST. art. II, 3.

65

Frank J. Williams, Abraham Lincoln, Civil Liberties and the Corning Letter, 5 ROGER WILLIAMS
U. L. REV. 319, 321 (2000). See generally THE OXFORD COMPANION TO THE SUPREME COURT OF THE
UNITED STATES 42829 (Kermit L. Hall ed., 1992).
66

Thomas H. Lee & Michael D. Ramsey, The Story of the Prize Cases: Executive Action and
Judicial Review in Wartime, in PRESIDENTIAL POWER STORIES 53, 75 (Christopher H. Schroeder &
Curtis A. Bradley eds., 2009) (quoting The Prize Cases, 67 U.S. 635, 66869 (1863)).
67 John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War
Powers, 84 CALIF. L. REV. 167, 177 (1996).

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forces.68
The decision to maintain a large standing army, following the cessation
of World War II, should have been a sign to Congress that the times they
are a-changin.69 In 1950, in support of the United Nations and without
congressional authorization, President Truman deployed approximately
150,000 U.S. military forces who were killed in South Korea.70 President
Truman did not seek the approval of members of Congress for his military
actions in Korea:71
Congress was largely passive in the face of Trumans usurpation
of the war power. Some members offered the weak justification
that history will show that on more than 100 occasions in the life
of this Republic the President as Commander in Chief has ordered
the fleet or the troops to do certain things which involved the risk
of war [without seeking congressional consent]. [T]his list of
alleged precedents for unilateral presidential action contains not a
single military adventure that even comes close to the magnitude
of the Korean War.72

In lieu of accepting a narrow interpretation that executive authority to

repel attacks was limited to physical attacks on the United States, Truman
advocated a broad interpretation to justify unilateral authority to deploy
military forces in response to a threat directed against a vital U.S. national
interest. In his opinion, preserving the legitimacy of the United Nations was
a vital U.S. national interest, and North Koreas actions were a threat to that
interest.73 As the Commander-in-Chief, he argued that he was authorized to
deploy military forces without seeking prior congressional approval.74 Not
only did Truman commit U.S. troops without prior congressional approval,
unlike Lincoln, he made no effort to request congressional approval after the
fact. Nonetheless, Congress acquiesced and appropriated the necessary
funds for the war.
Congressional authorization for the Vietnam War came in the form of a

68

Id.

69

See BOB DYLAN, The Times They Are A-Changin, on THE TIMES THEY ARE A-CHANGIN
(Warner Bros. 1964).
70 This Day in History: June 27, HIST. CHANNEL, http://www.history.com/this-day-inhistory/truman-orders-u-s-forces-to-korea-2 (last visited Nov. 19, 2015).
71

See Louis Fisher, The Korean War: On What Legal Basis Did Truman Act?, 89 AM. J. INTL L.
21, 21 (1995).
72

Id. at 35.

73

Jane E. Stromseth, Understanding Constitutional War Powers Today: Why Methodology

Matters, 106 YALE L.J. 845, 85556 (1996); Thomas M. Franck & Faiza Patel, Un Police Action in
Lieu of War: The Old Order Changeth, 85 AM. J. INTL L. 63, 71 (1991).
74

See Fisher, supra note 71.

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joint resolution (commonly referred to as the Gulf of Tonkin Resolution)75

authorizing the President to use all necessary and appropriate military force
in his capacity as Commander-in-Chief. Broadly written, this resolution
authorized the President to use his discretion in tak[ing] all necessary steps,
including the use of armed force, to assist any member or protocol state of
the Southeast Asia Collective Defense Treaty requesting assistance in
defense of its freedom.76 Not only did Congress grant the President broad
authority to determine when he would use force, it also expressly granted
him the authority to determine when the use of force was no longer required.
Getting out of Vietnam proved considerably more difficult for Congress
than getting into Vietnam.77 In 1971, following unsuccessful attempts to
effectively control the scope of the conflict through appropriations
restrictions, a disillusioned Congress formally repealed the resolution.78
When this failed to end the conflict, it enacted the Mansfield Amendment,
calling for a prompt and orderly withdrawal of U.S. troops from Indochina
at the earliest practicable date.79 When these measures failed to deter the
President from expanding the war effort, Congress finally passed
unequivocal legislation ending funding for ground troops in Cambodia and
Laos, banning air operations over Cambodia, and ending U.S. support for
Vietnamese forces outside South Vietnam.80 While this legislation was
vetoed by President Nixon, based on congressional pressure, he
subsequently agreed to withdraw ground forces from Cambodia.81
Following the completion of the Paris Peace accords, Congress passed
supplemental legislation banning the use of appropriated funds to support
directly or indirectly combat activities in or over Cambodia, Laos, North
Vietnam, and South Vietnam . . . . 82
The necessity of these extraordinary legislative measures to end the
Vietnam War shows that, even if Congress repeals its war authorization,that
may not end the war as long as the President believes the war can be won.83
75

See Gulf of Tonkin Resolution, Pub. L. No. 88-408, 78 Stat. 384 (1964).

76

Id.

77

See Bruce Ackerman & Oona Hathaway, Limited War and the Constitution: Iraq and the Crisis
of Presidential Legality, 109 MICH. L. REV. 447, 48586 (2011).
78

Id. at 485.

79

Act of Nov. 17, 1971, Pub. L. No. 92-156, 601(a), 85 Stat. 423, 430 (1971).

80

See Ackerman & Hathaway, supra note 77, at 486.

81

See Julian E. Zelizer, How Congress Helped End the Vietnam War, THE AM. PROSPECT (Feb. 6,
2007), http://prospect.org/article/how-congress-helped-end-vietnam-war.
82 See Second Supplemental Appropriations Act, Pub. L. No. 93-50, 307, 87 Stat. 99, 129
(1973).
83 See Haley OShaughnessy, A Matter of Inheritance, A Matter of Escalation, A Matter for
Congress: Presidential War Powers in Vietnam, E-INTL RELATIONS (Nov. 19, 2014), http://www.e-

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Congressional efforts to use appropriation legislation as a means for

gaining control of the Iraq war would meet a similar fate during the Bush
administration.84
Similar to the Gulf of Tonkin Resolution, the Authorization for Use of
Military Force Against Iraq Resolution of 2002 (AUMF-Iraq)85 provided the
President with similar discretion in determining when the use of force was
no longer authorized. The commonality between these two resolutions is
apparent, and distinctions are largely a matter of form.86 Through these
open-ended resolutions, both legislatures made it very difficult for them to
exercise any meaningful restraint over the President when these wars
became unpopular. The failure of these congressional efforts is a reflection
of the evolution of the appropriations process itself.
In contrast to prior practices, Congress now grants the Defense
Department vast sums under very broad categories, giving the president
immense discretion to reallocate funds from one activity to another.87 As
such, President George W. Bush was able to finance the initial invasions out
of general funds, without seeking any special appropriations for the use of
military force.88 With the proverbial horse already out of the barn, it was
difficult for Congress to assert itself during the initial years of the war.
Having started the war with existing appropriated funds, President Bush
was able to make repeated use of last-minute emergency supplemental
appropriations to bludgeon Congress into appropriating additional
funds.89 Through such tactics, Bush successfully redefined the key political
question: if senators and representatives voted against emergency funds,
they would be abandoning the troops in the field without bullets and body
armor.90
Congress, succumbing to political pressure, approved each of these
ever-increasing supplemental funding requests. In an effort to overcome
this pressure, the House introduced a resolution in conjunction with the
spring 2007 supplemental appropriations act, calling for a phased
ir.info/2014/11/19/presidential-war-powers-in-vietnam/.
84 See Gary Minda, Congressional Authorization and Deauthorization of War: Lessons from the
Vietnam War, 53 WAYNE L. REV. 943, 950 (2007).
85

Compare Gulf of Tonkin Resolution, Pub. L. No. 88-408, 78 Stat. 384 (1964), with
Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243,
116 Stat. 1498.
86 Robert Gray Bracknell, Real Facts, "Magic Language," the Gulf of Tonkin Resolution, and
Constitutional Authority to Commit Forces to War, 13 NEW ENG. J. INT'L & COMP. L. 167, 217 (2007).
87

Ackerman & Hathaway, supra note 77, at 491.

88

Id.

89

Id. at 477.

90

Id. at 50607.

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withdrawal of troops from Iraq. When the president vetoed that bill, and
the Senate then passed a bill accepting more war funding without
withdrawal provisions,91 Congress effectively lost control over the power
of the purse. At the same time however, through other legislative initiatives,
Congress continued to wrestle for control over the conduct of the war.
In the months leading up to and following their overwhelming victory
in the 2006 congressional elections, the Democratically-controlled Congress
began to reassert its control over the funding of an unpopular war.92 These
efforts included the passage of numerous resolutions related to the scope of
ongoing military operations in Iraq as well as public hearings and
investigations into nature of those operations.93 House Resolution 39194,
containing an expressed congressional intent for limiting Executive wartime
discretion, exemplified one of the earliest resolutions.
This resolution, reminiscent of prior congressional attempts to prevent
the expansion of the ongoing conflict in Vietnam, expressly rejected any
suggestion that the AUMF-Iraq, explicitly or implicitly, extend[ed] to
authorizing military action against Iran over its nuclear program.95
Moreover, it declared that congressional authority prior to taking military
action against Iran is not discretionary, but is a legal and constitutional
requirement.96 In July 2006, the second of several attempts to repeal the
AUMF-Iraq was referred to the Committee on International Relations.97 The
first attempt to repeal that Resolution was actually introduced shortly before
the invasion of Iraq in April, 2003.98 All of these attempts, indicative of
congressional displeasure with the course of the war and imitative of the
prior congressional response to the Gulf of Tonkin Resolution, failed. In the
end, the resolution was never repealed and it took Executive action (albeit
from a different Executive, President Obama) to finally end the war itself.
Congressional displeasure with the course and conduct of the war can

91 William G. Howell & Jon C. Pevehouse, When Congress Stops Wars: Partisan Politics and
Presidential Power, 86 FOREIGN AFF. 95 (2007), available at 2007 WLNR 22546466.
92

Contra Editorial Board, One Year Since the 2006 Election: The Democratic Congress and the War
in Iraq, WORLD SOCIALIST WEB SITE (Nov. 7, 2007), https://www.wsws.org/en/articles/2007
/11/dems-n07.html.
93

Id.

94

H.R. Con. Res. 391, 109th Cong. (2006).

95

Id.

96

Id.

97

See H.R. 66, 111th Cong. (2009); H.R. Res. 417, 111th Cong. (2009); H.R. 2450, 110th Cong.
(2007); H.R. 413, 110th Cong. (2007); H.R. 1292, 110th Cong. (2007); H.R. 3938, 110th Cong.
(2007); H.R. 508, 110th Cong. (2007); H.R. 5875, 109th Cong. (2006).
98

H.J.R. Res. 20, 108th Cong. (2003).

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also be ascertained by analyzing the frequency and scope of Congressional

investigations. The investigatory arm of its committees retains a capacity to
create political problems for the president, even when Congresss efforts to
combat the executive branch legislatively are stymied.99 From the
beginning of the invasion through the end of the 109th Congress, legislators
held only about fifty days of hearings that were identified from the
[Congressional Information Services (CIS) Abstracts] as being in some
respect explicitly critical of the Administrations conduct of the war or
occupation.100
During the invasion, Congress held virtually no hearings critical of
operations on the ground, and [t]he biggest surge in investigative activity
during the wars first four years came in the summer of 2004 when Congress
investigated revelations of prisoner abuse at Abu Ghraib.101 The frequency
and scope of these investigations increased dramatically following the 2006
Congressional elections. In the first two months alone, the 110th Congress
held an astounding 81 hearings on the war in Iraq [with] Caucus Chairman
Rahm Emanuel (DIL) proudly proclaim[ing that] this is just the
beginning.102 These efforts highlight both a growing dissatisfaction with
the course of the war as well as the significant influence Congress can exert
over foreign police through their investigatory power.
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.103 It is important to stress that the
Framers original intent in granting the Executive this title was not to confer
on him independent authority to initiate war or act independent of the
legislative branch when executing war. Their primary purpose in making
the President the Commander-in-Chief was to ensure civilian supremacy
over the military, including the States Militia when federalized.104 While
civilian supremacy over the military remains a key component, it is often
overshadowed by the Presidents willingness to exercise unilateral measures
during times of war and national emergencies.
Recently, in the national security context, separation-of-powers

99

Douglas Kriner & Liam Schwartz, Divided Government and Congressional Investigations, 33
LEGIS. STUD. Q. 295, 296 (2008).
100 Douglas Kriner, Can Enhanced Oversight Repair "The Broken Branch"?, 89 B.U. L. REV. 765,
778 (2009).
101

Id.

102

Kriner & Schwartz, supra note 99, at 296.

103

U.S. CONST. art. II, 2, cl. 1.

104 See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb
Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 76970 (2008).

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overwhelmingly manifests in the law in a manner that gives the political

branches breathing room (perhaps more than they need) to protect the
country.105 Moreover, [e]ven half-way measures meant to preserve
meaningful congressional constraints on executive war-making powers,
such as the War Powers Resolution, have been largely ignored.106 This is
perhaps best personified by President Obamas unilateral decision to
authorize U.S. airstrikes in support of ongoing North Atlantic Treaty
Organization (NATO) operations in Libya. President Obama declared that
he did not need to seek Congressional authorization because U.S.
operations do not involve sustained fighting or active exchanges of fire with
hostile forces, nor do they involve U.S. ground troops.107
Presidential assertions of inherent executive power, which are not
subject to legislative or judicial constraints, have a long history in American
history. In offering a legal defense for President Harry Trumans decision in
1950 to order U.S. troops to Korea, the State Department argued that the
President has authority to conduct the foreign relations of the United
States.108 Similarly, [i]n 1966, the State Department defended the legality
of the Vietnam War in part by stating that the President holds the prime
responsibility for the conduct of United States foreign relations.109
Regardless of the constitutional potency of such claims, the legal
requirements regarding the funding of these operations remain the same. As
such, the important question is not whether congressional authorization was
sought prior to these operations but, rather, why Congress continued to
approve the appropriations necessary to fund these operations.
The congressional response to the military operations in Libya, as well
as ongoing operations in both Syria and Iraq (training Iraq troops and
bombing ISIS), is reminiscent of its response to President Johnsons funding
requests during the Vietnam conflict. Debates between the President and
Congress ha[ve] been characterized by what seems to be an ever-increasing
adventurism by the President and an ever-decreasing willingness to exert

105 Edward Cantu, The Separation-of-Powers and the Least Dangerous Branch, 13 GEO. J.L. & PUB.
POLY 1, 33 (2015).
106

Id. at 4647.

107

Charlie Savage & Mark Landler, White House Defends Continuing U.S. Role in Libya
Operation, N.Y. TIMES (June 15, 2011), http://www.nytimes.com/2011/06/16/us/politics/
16powers.html?_r=1.
108
109

Authority of the President to Repel the Attack in Korea, 23 DEPT ST. BULL. 173, 173 (1950).

Louis Fisher, Study No. 1: The Sole Organ Doctrine, STUD. ON PRESIDENTIAL POWER
FOREIGN REL., LAW LIBR. CONGRESS, Aug. 2006, at 1, 1 (quoting The Legality of United States
Participation in the Defense of Viet-Nam, 54 DEPT ST. BULL. 474, 484 (1966), available at
loufisher.org/docs/pip1441.pdf).

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power by the Congress.110 This unhealthy relationship is exacerbated by an

ever increasing polarization between how Americans view the relationship
between conflicts and the soldiers who fight those conflicts. Perhaps as a
backlash to the Vietnam conflict, in particular the ostracism of returning
soldiers, Americans seem willing to distinguish their support (or lack
thereof) of a particular military operation from their unfettered support of
those soldiers partaking in the very same operation. This is akin to hating a
particular sports team but cherishing all of the players who are on the field
each and every day.
While further research on the long-term psychological and historical
implications of this schism is needed, such a distinction has impacted
Congress ability to exert its influence. The inability to sever the connection
between refusing to fund an unwise military operation, without being
perceived as abandoning those soldiers partaking in it, significantly
hamstrings any congressional response before it begins. Congress has come
to realize that once the milk is out of the udder it is nearly impossible to put
it back in, even if you would be so inclined. However, when the President
requested continuing appropriations for ongoing operations in Syria in
conjunction with the Continuing Appropriations Resolution of 2015,111
Congress tried to do just that.
The 2015 Resolution expressly authorizes the Secretary of Defense, in
coordination with the Secretary of State, to provide assistance, including
training, equipment, supplies, and sustainment, to appropriately vetted
elements of the Syrian opposition,112 with numerous conditions. These
conditions, both procedural and substantive, are known as riders because
of how they ride on the underlying billpushing the military ground
combat operations toward an earlier exit.113 These riders demonstrate a
concerted congressional effort to influence the nature of a conflict that they
had no part in initiating. History, in particular congressional efforts during
the conflicts in Vietnam and Iraq as outlined above, would tend to
demonstrate the futility of such feeble measures.

CONCLUSION
We could not understand, because we were too far and could not

110 See Talbot Jensen, Future War and the War Powers Resolution, 29 EMORY INTL L. REV. 499,
502 (2015).
111

See generally H.J.R. Res. 124, 113th Cong. (2015).

112

See id.

113 Charles Tiefer, Can Appropriation Riders Speed Our Exit from Iraq?, 42 STAN. J. INTL L. 291
(2006).

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remember.114

It might be that America has never really understood the scope of

presidential and congressional authority over war because it cannot
remember a time when the authority was clearly defined. In fact, there never
was such a time. While congressional and executive war powers have not
changed, the nature, scope, and effectiveness of these powers has evolved
since they were first enumerated. The relationship between these collective
war powers remains fluid, continuing to define both congressional and
executive action during times of national crisis or emergency. Whereas the
executives ability to unilaterally initiate military conflicts has expanded
since the Truman administration, as demonstrated by its efforts during the
Vietnam conflict, congressional capability to influence the course of these
operations remains strong so long as it is willing to exercise it. Similarly, as
demonstrated by its actions during the Iraq conflict, Congress wields
significant power through its authority of investigation. This authority was
extensively employed during the waning years of the Iraq War and
continues to be used today in addressing the legacy of that conflict.
Congressional oversight and, more importantly, congressional involvement
in the war-making process are fundamental to achieving the original
framers intent. While it may be premature to judge the efficacy of the 2015
Resolution, it may very well be judged as just one more example of
Congresss abdication of its constitutional war powers in the name of
political compromise. It is as if Congress has come too far and cannot
remember its role as master of war.

114 JOSEPH CONRAD, HEART OF DARKNESS

105 (Penguin Books 1983).