Good governance is paramount to a healthy, thriving society. The United States was founded on a system of checks and balances, with Articles I, II, and III of the U.S. Constitution establishing the Legislative, Executive, and Judicial branches of government to delineate a clear separation of powers. Over the next several centuries, these branches of government have expanded and contracted as they sought to fulfill their mandates, and much recent discourse has focused on the powers granted to the executive branch. This essay considers how the executive branch has expanded its war powers, specifically, and whether it will continue to do so in the 21st century.

Background

Article II, Sections 2-4 of the U.S. Constitution outline the president's various responsibilities. Specified powers include:

• Commander and chief of the military
• Issue presidential actions ("take Care that the Laws be faithfully executed")
• Pardon
• Make treaties
• Nominate federal officers such as judges, ambassadors, and secretaries
• Required to give a State of the Union

Article II is spartan, with only a few paragraphs to describe these powers. Consequently, the specifics have been elaborated via precedent. After the Revolutionary War, Americans were understandably wary of monarchy, with the result that early presidents rarely opposed Congress, and presidential vetoes were rare until President Andrew Jackson's administration in the 1830s. Jackson is noted as the first "Imperial President" owing to his willingness to test the limits of presidential power. The quote “John Marshall has made his decision, now let him enforce it" is often attributed to him (though perhaps apocryphally), about a Supreme Court decision he opposed. He received the first and only presidential censure in 1834 for unilaterally moving funds from the Bank of the United States. It wasn't until the mid-19th century, however, before presidential power significantly expanded.

The Civil War was an inflection point in the American presidency: Abraham Lincoln mobilized hundreds of thousands of Union troops and reorganized the economy to support war efforts. He famously suspended habeas corpus in 1861 during the war—a power that the presidency did not explicitly have. The suspension was eventually challenged and overturned in federal court, but Lincoln continued to allow citizens, many of whom were journalists, to be held without cause until 1963 when Congress officially authorized the suspension in 1863 until the war's end.

Franklin D. Roosevelt came into the presidency during the true economic crisis of The Great Depression. He was elected on a platform of major economic stimulus and a broad expansion of government. His legislative agenda—called the First 100 Days and later The New Deal—was achieved via liberal use of executive orders. This was an innovation; previous presidents did not use executive orders for substantive policy changes. With this, FDR expanded the scope of presidential purview to include economic policy. He was sometimes labeled a monarch and tyrant, and these critiques grew as he ran and won a third and fourth term, eschewing 150 years of presidential tradition observing a two-term limit. These unprecedented terms coincided with WWII and further expansions of presidential powers, as well as the unlawful internment of Japanese Americans. From Congress’s perspective, FDR had clearly overstepped. Two years after FDR’s death, Congress passed the Twenty-second Amendment to the US Constitution, setting a two-term limit for the presidency.

Modern war powers

Presidential power tends to consolidate during times of crisis and war. The President of the United States is the commander and chief of the largest military in the history of the world. This alone makes the presidency the most powerful single role in the country's government, overseeing a defense budget of approximately $700 billion. Technically, the president does not have the authority to declare war, as that is the purview of Congress. However, Congress hasn't declared war since 1941 and appears largely disinterested in voting on military action.

The modern presidency, enabled by Congress, has assumed the defacto power to wage war. Since WWII, Congress has opted to pass a series of resolutions to authorize presidents to use force rather than declare war themselves. These resolutions are an extension of the War Powers Resolution (WPR), a federal law passed in 1973 that was meant to curb presidential war powers after the executive branch led the country into a war in Vietnam. The WPR stipulated the following:

The War Powers Resolution requires the president to notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining for more than 60 days, with a further 30-day withdrawal period, without congressional authorization for use of military force (AUMF) or a declaration of war by the United States.

However, many political thinkers believe that the War Powers Resolution and authorizations that followed are an abdication of Congress' responsibility to declare war. The WPR was promptly hamstrung by legal challenges and its ambiguous use of the term "hostilities." Regardless, Authorized Use of Military Force resolutions, called AUMFs, have been the norm since, which grant presidents authorization to use significant and prolonged military resources in a military engagement, though it’s a point of consternation that AUMFs are often used well beyond their original mandate, as was the case in 2021, when the House voted to repeal the 2002 AUMF Against Iraq to end its use in legal justifications.

Still, the modern presidency rarely needs an AUMF to conduct military action. The Justice Department's Office of Legal Counsel (ODL), which advises on legal matters concerning the executive branch, has a relatively wide lens in which it interprets the presidential war powers outlined in Article II. In general, the test used to determine the executive branch's authority is two-pronged: 1) is it in the “national interest” and 2) does the “nature, scope, and duration” of military action meet the definition of war in the constitutional sense. If a military action is in the national interest and isn't considered war, then the executive is authorized to use force without congressional approval, AUMF or otherwise. The "national interest" test has been critiqued as meaningless, however, in that it fails to actually constrain presidential power. For example, the presidency was able to use significant military force without an AUMF in Libya in 2011 and in Syria in 2018. These military actions aren't technically defined as "war" because air and drone strikes don't put American military personnel at significant mortal risk.

In one sense, the process in which the United States takes military action has evolved to meet the politics of the times. There is increasing sentiment, though, that Congress should be more involved in the decision-making process now that war is waged differently, with advanced technology increasing the breadth and depth of combat without risking military personnel. Proposals to rebalance war powers include Congress using its budgetary oversight to influence military action, adding two-year sunsetting clauses to future AUMFs, and reworking the War Powers Resolution to redefine "hostilities." Will restrictions in fact be made on the President's ability to deploy force?

Nuclear war

The authorization of use of nuclear weapons falls within the purview of the framework mentioned above. American presidents have the sole authority to launch nuclear weapons, whether as a first strike or in retaliation. Beyond the constitutional mandate, this makes practical sense when considering the historical context in which nuclear policy was developed. Under retaliatory conditions (as experienced during the Cold War), a president might only have had ten minutes to make a strategic decision.

A few Americans have questioned this process seven decades into the Atomic Age. Some worry about the lack of fail-safes in place to stop a nuclear order from an unfit president. Recently, the chairman of the Joint Chiefs of Staff went so far as to encourage senior officials to involve him if President Trump ordered a nuclear strike. Others simply believe the decision is too consequential for a single elected official to make. Should an American president be able to make such a consequential decision without judicial or congressional oversight, and will the president remain the sole authority on when to use nuclear weapons?

What comes next

The two questions above highlight potential proposed changes to federal law, but is there an appetite for real change? In 1973 and 2008, Gallup polled the following question:

“Do you think the president should or should not be required to get the approval of Congress before sending United States armed forces into action outside the United States?”

In both eras, 80% of those polled said that they believed a president should be required to gain Congress’ approval. It would seem then that the American public prefers congressional oversight—but the lack of change on this front over the years tells a different story. And more recently, the New York Times asked all of the 2020 presidential candidates their thoughts on executive war powers, and the responses were predictably murky.

Though former Supreme Court Justice Robert Jackson’s dissent of Korematsu v. United States refers to the potential abuse of presidential emergency powers—likening them to “a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need”—the sentiment is grimly applicable on this critical topic of executive war powers, waiting as they do, at the ready for future conflicts.