A Fletcher constitutional law professor explains the history and tensions driving the debate in situations like Iran and Venezuela
While the Constitution gives Congress the power to declare war, it also makes the president commander in chief with the authority to act alone in military emergencies, says Michael Glennon, a professor of constitutional and international law at The Fletcher School. Photos: Shutterstock
Michael Glennon was on Capitol Hill in 1973 when Congress met to confront a question as old as the Constitution itself: Who has the power to take the United States to war? Now a professor of constitutional and international law at The Fletcher School, he remembers the mood then as a strange mix of foreboding and hopeful.
The country was pulling back from the Vietnam War, which had killed tens of thousands of Americans and millions of Vietnamese, divided the country, and shattered public trust. “It felt like we were coming apart at the seams,” says Glennon, who was a young lawyer working for the Senate at the time.
Yet amid that sense of crisis, Congress sought to reclaim its role. Over President Richard Nixon’s veto, lawmakers passed the War Powers Resolution, which limited how long a president could keep U.S. forces engaged in hostilities without congressional approval.
Today, as debates over presidential authority have returned in connection with military actions involving Iran and Venezuela, Glennon says the central question remains much the same: Who decides when the United States goes to war?
Glennon spoke with Tufts Now about what the Constitution says, what the War Powers Resolution was meant to do, and why Congress has had such difficulty reclaiming authority over war and peace.
How did the Framers of the Constitution try to divide war powers, and how did the War Powers Resolution of 1973 build on that effort?
The Framers were trying to ensure that the decision to go to war would be made by the elected representatives of the people, while leaving untouched the president’s authority to act alone in a true military emergency.
They were trying to take advantage of the strengths of both branches: Congress’s deliberative power and the president’s ability to act quickly. The president needed room to respond to a sudden attack. But once the emergency was over, the decision to continue a war belonged to Congress. That is why the Constitution gives Congress the power to declare war, fund the military, and regulate the armed forces, while making the president commander in chief.
The War Powers Resolution tried to preserve that balance while addressing the issue of unauthorized war. The law requires the president to get congressional approval if U.S. involvement in hostilities lasts 60 days or longer. The core idea was that emergency power should not become continuing war power.
“If the president cannot sell the war to Congress by [the 60-day time limit of the War Powers Resolution], the president cannot sell it to the American people. And if the war cannot be sold to the American people, we should not be fighting it—unless you prefer George III’s model.”
Why is the 60-day limit so important?
It implements the Framers’ model of limited presidential war power. The president can act in an emergency—but 60 days later, that emergency is over. At that point, Congress has had time to make decisions, as it did after Pearl Harbor.
If the president cannot sell the war to Congress by that point, the president cannot sell it to the American people. And if the war cannot be sold to the American people, we should not be fighting it—unless you prefer George III’s model.
Critics say the War Powers Resolution intrudes on the president’s authority as commander in chief. What is the strongest argument on each side?
The principal argument for broad presidential war power is historical precedent: U.S. presidents have repeatedly used military force without congressional approval.
The counterargument is that most of the time they’ve done so in minor ways or through limited uses of force—against pirates or Mexican bandits, for example. Almost no incidents have risen to the level of full-scale war involving substantial risk to the nation. A history of limited presidential actions does not amount to constitutional authority for full-scale war.
If the War Powers Resolution was meant to restore Congress’s role, why has presidential war power continued to expand?
Many members of Congress do all they can to avoid controversial votes that would require them to take a stand on issues that could jeopardize their careers.
The original plan, outlined by Madison in the Federalist Papers, was to set up three co-equal branches of government that would jealously defend their constitutional prerogatives. Ambition was supposed to counteract ambition. Members of Congress were expected to take pride in their constitutional portfolio and defend it from executive encroachment.
It has not turned out that way. One reason is that the Framers did not anticipate the emergence of modern political parties. Over time, loyalty to party has come to supersede loyalty to the House or Senate where members serve.
That is very different from the Vietnam era. During the Johnson administration, opposition to the war came from leaders of Johnson’s own Democratic Party—senators such as J. William Fulbright, Eugene McCarthy, and Frank Church. They stood up to the leader of their own party, in part because they had independent political bases. That is much less true today.
The courts have not filled the gap. Judges often look to jurisdictional technicalities to avoid enforcing restraints on presidential war-making. One example is the 1983 Supreme Court decision that gutted a key provision of the War Powers Resolution: the provision that gave Congress power to require U.S. withdrawal from a war without confronting a presidential veto.
All of this is amplified by public ignorance and indifference to constitutional limits on presidential power. There is no single factor, but the end result is a nation moving steadily toward autocracy.
When Americans hear debates about war powers and military action, such as those this year about U.S. involvement in Iran and Venezuela, what legal and historical context are they most often missing?
What many Americans do not realize is how far some recent claims of presidential power are from historical norms. It is not normal for the United States, or any other country, to seize another head of state from within that country’s territory and claim that it is a law enforcement operation. Law enforcement and police functions are the power of the territorial sovereign; they are close to the very essence of sovereignty.
Nor is there precedent, in American practice or international practice, for the claim that one person holds the power to decide to destroy an entire civilization.
This is not a new argument. The War Powers Resolution is a distillation of a centuries-long struggle between kings and parliaments over who can commit a nation to war. Many of the great confrontations in English history—the Magna Carta, the English Civil War, the Glorious Revolution—implicated this issue. The Framers were deeply shaped by the abuse of royal prerogative by George III. The whole thrust of the American Constitution was to get away from that model and transfer the war power from the sole decider to the elected representatives of the people.
