Congress' Constitutional Power To Order Military Action

The Constitution grants Congress broad powers to oversee and structure the US military. These include the ability to declare war, raise and support armies, and make rules for the military's governance. Congress's authority to declare war is derived from Article I, Section 8 of the Constitution, while the President's power to direct the military after a Congressional declaration of war stems from Article II, Section 2, where they are designated as Commander-in-Chief. This division of powers requires cooperation between the President and Congress, with Congress funding or declaring military operations and the President directing them. However, there have been instances where Presidents have engaged in military operations without express Congressional consent, such as the Korean War and the Vietnam War. The War Powers Resolution, passed by Congress, outlines rules for when the President can use military force without a formal declaration of war, requiring notification to Congress within 48 hours and limiting armed forces' engagement to 60 days without further authorization.

Explore related products

Military Tribunals & Presidential Power: American Revolution to the War on Terrorism

$20.15 $29.99

Constitutional Construction: Divided Powers and Constitutional Meaning

$44.2 $49

American Constitutional Law: Constitutional Structures: Separated Powers and Federalism (Volume 1)

$71.8 $72

Constitutional Law for a Changing America: Institutional Powers and Constraints

$54.93 $125

The Constitution of the United States and The Declaration of Independence

$1.99 $6.95

To Chain The Dog of War

$24

Congress can declare war

The U.S. Constitution grants Congress the power to declare war. This is outlined in Article I, Section 8, Clause 11 of the Constitution, which gives Congress the authority to "declare War," "raise and support Armies," "provide and maintain a Navy," and call state militias into federal service. This power is known as the War Powers Resolution and is a crucial check on the executive branch's ability to engage in military conflicts.

The principle behind granting Congress the power to declare war is that no one person should have the authority to burden the entire country with war. Instead, such a significant decision should require the approval of the masses. As U.S. Supreme Court Justice Joseph Story wrote in 1838, "it should therefore be difficult in a republic to declare war; but not to make peace." This power is not just theoretical, as Congress has used it throughout history, such as during the Civil War, when it passed numerous statutes organizing and reorganizing the Union's military.

While Congress has the power to declare war, the President, as Commander-in-Chief, has the power to direct the military after a Congressional declaration of war. This division of powers requires cooperation between the President and Congress regarding military affairs, with Congress funding or declaring the operation and the President directing it. However, there have been instances where Presidents have engaged in military operations without express Congressional consent, such as the Korean War, the Vietnam War, and the Iraq War of 2002.

The War Powers Resolution also sets out specific requirements for the President when engaging in military action. For example, it mandates that the President must notify Congress within 48 hours of committing armed forces to military action and forbids armed forces from remaining in action for more than 60 days without congressional authorization for the use of military force or a declaration of war.

In conclusion, the U.S. Constitution grants Congress the explicit power to declare war, and this power has been a significant aspect of the country's political system since its founding. The War Powers Resolution outlines the specific authorities of Congress and the President regarding military conflicts, ensuring a balance of powers and preventing the unilateral engagement of the United States in wars.

Congress can raise and support an Army and Navy

The Constitution of the United States grants Congress significant powers to oversee the military and ensure its functionality. These powers are outlined in Article I, which focuses on Congress's role in the government. One of these powers is the ability to "raise and support Armies" and "provide and maintain a Navy".

The power to raise and support an Army and Navy is a crucial aspect of Congress's military authority. This power allows Congress to establish, fund, and maintain the Army and Navy as necessary for the defence of the nation. It includes the ability to allocate resources, set policies, and make decisions regarding the size, composition, and readiness of the armed forces.

Congress has exercised this power throughout history, including during the Civil War, when it passed statutes to organise and reorganise the Union's military. Additionally, in 1789, George Washington requested that Congress pass a law to provide him with an Army, which resulted in the First Congress passing the "Act to recognise and adapt to the Constitution of the United States, the establishment of the troops raised under the resolves of the United States in Congress assembled and for other purposes".

Today, Congress continues to exercise its power to raise and support the Army and Navy through various means, such as passing the Nation Defense Authorization Act (NDAA) annually, which sets policy and funding priorities for the military. Congress also has the authority to assign duties to specific officers and establish chains of command within the military.

While the President serves as the Commander-in-Chief of the armed forces and has the power to direct military operations, the power to raise and support an Army and Navy remains with Congress. This division of powers requires cooperation between the President and Congress in military affairs, with Congress providing funding and declaring war, and the President directing the military's actions.

Congress can make rules and regulations for the military

The Constitution of the United States gives Congress broad powers to oversee the military and ensure its functionality. These powers are outlined in Article I, which focuses on Congress and its role in government. One of these powers is the ability to make rules and regulations for the military. This includes the power to assign duties to particular officers and require the military to operate through prescribed chains of command.

Congress has had this power since the founding of the United States. For example, during the Civil War, Congress passed numerous statutes organizing and reorganizing the Union's military. They also vested specific occupation powers in "district commanders" with responsibility for particular regions of the defeated South.

The Constitution's Appointments Clause also requires that all "Officers of the United States" be appointed by the president with the Senate's advice and consent or, in some cases, by the president alone or the head of a department. This gives Congress some influence over the appointment of military officers.

In addition to making rules and regulations for the military, Congress also has the power to declare war, raise and support an Army and Navy, provide for the common defence, and make rules for the government and regulation of the land and naval forces. These powers give Congress significant influence over the military and its operations.

However, it is important to note that the Commander-in-Chief Clause gives the President the exclusive power to command the military in operations approved by Congress. The President also has substantial independent power to direct military operations as long as they do not infringe on the exclusive powers of Congress or other provisions of the Constitution. This has led to some conflicts between Congress and the President over military matters, with Presidents engaging in military operations without express Congressional consent.

Explore related products

The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11

$18.99 $23

The Presidency: Facing Constitutional Crossroads (Miller Center Studies on the Presidency)

$32.6 $45.5

Military Courts, Civil-Military Relations, and the Legal Battle for Democracy: The Politics of Military Justice

$42.55 $55.99

Presidential War Power: Second Edition, Revised

$17.18

Constitutional Conflicts between Congress and the President

$22.49 $34.99

The Adventures of the Constituent Power: Beyond Revolutions? (Comparative Constitutional Law and Policy)

$119 $55

Congress can purchase land for military bases

The Constitution gives Congress considerable powers to oversee the military and ensure its functionality. These powers are found in Article 1, which focuses on Congress and its role in the government. One of these powers is the ability to purchase land for military bases.

Congress has held this power since the founding of the United States, and it has been used throughout US history. For example, during the Civil War, Congress passed numerous statutes to organize and reorganize the Union's military.

Congress's power to purchase land for military bases is not unlimited, however. In recent years, there have been concerns about foreign countries, particularly China, buying land near US military bases. In response, Congress has introduced legislation to block these purchases and expand the government's authority to review such transactions.

For example, in 2023, the Biden administration issued an executive order requiring a Chinese firm to divest its holdings in a crypto mining operation in Wyoming located within a mile of Warren Air Force Base. This was the first use of the government's authority to block a real estate purchase by a foreign entity near a military base.

Additionally, Congress has updated the Committee on Foreign Investment in the United States (CFIUS) rules to expand the committee's jurisdiction over foreign real estate purchases. These new rules were announced after several controversial planned property purchases by undisclosed or Chinese buyers near military bases.

The Protecting Military Installations and Ranges Act, reintroduced by Senator Ted Cruz, is another example of legislation aimed at blocking foreign adversaries from buying land around US military installations. The bill would require a review by federal authorities before entities linked to China, Russia, Iran, or North Korea can purchase land within 100 miles of an armed forces installation.

Congress can assign duties to particular officers

The Constitution grants Congress a broad, and often underappreciated, power to structure the armed forces, assign duties to offices, and regulate military chains of command. This power is derived from Article I of the Constitution, which gives Congress the authority to "'declare War,'" "raise and support Armies," "provide and maintain a Navy," and "make Rules for the Government and Regulation of the land and naval Forces."

Congress has exercised this power throughout US history, including during the Civil War when it passed statutes organizing and reorganizing the Union's military. For example, Congress once passed a law requiring that all army orders be issued through the general of the Army, who at the time was former Union commander and future President Ulysses Grant. This meant that even Grant had to follow the orders issued by the district commanders responsible for specific regions of the defeated South.

Congress can also assign duties to particular officers, such as requiring that a particular Senate-confirmed officer command troops in a certain theatre of operations, even if the president would prefer someone else. Congress could also, in theory, bar the president from removing a top general or admiral without cause, thereby preventing the selection of a replacement.

While the president generally appoints military officers and serves as their ultimate commander-in-chief, the power to appoint officers is not absolute. The Constitution's Appointments Clause requires that all "Officers of the United States" be appointed by the president with the advice and consent of the Senate (or in some cases, by the president alone or the head of a department). This means that Congress plays a role even in the appointment of military officers.

In summary, while the president has significant authority over the military as commander-in-chief, Congress possesses broad powers to structure the armed forces, assign duties to officers, and regulate military chains of command. These powers ensure a balance between the executive and legislative branches in military affairs.

Frequently asked questions