The Separation and Overlap of War and Military Powers

When the nation goes to war, does the Congress or the President hold ultimate authority? Saikrishna Prakash considers the constitutional allocation of war and military powers between the Congressional and Executive Branches, and argues that the Constitution grants Congress complete control over all war and military matters.  Prakash suggests that the traditional focus of war-powers scholarship on the decision to go to war has distorted our perception of the Constitution's allocation of military powers.

This distorted view has led to some confusion, as revealed by the seemingly basic separation of powers questions aroused by recent events.  There is an ongoing debate over whether Congress can regulate the treatment of prisoners—as, for example, in Guantanamo Bay—or whether this matter is left entirely to the President's discretion.  Some claim that Congress can order a military withdrawal from Iraq, while others argue that Congress lacks this power.  Making arguments sounding in text, structure, and history, Prakash offers a theory that can shed light on these war-powers debates.

Prakash draws on English and American history at the time of the Constitution's drafting to determine the most accurate interpretation of the war and military powers clauses.   The English statutes and practices that were the precursors of our constitutional provisions on military power show that England could have multiple "commanders in chief" at a time, all of them subordinate to the Crown.  A review of American military actions during the Revolutionary War and in succeeding decades reveals that Congress held sweeping powers over war and military affairs.  Contrary to the modern view that the Commander in Chief enjoys exclusive operational authority, early Congresses systematically regulated military operations, such as where warships might sail in wartime, how soldiers would march and fire arms, the number of cannons in military forts, and the appropriate enemy targets.  Early commanders in chief consistently deferred to Congress in these matters.  A particularly relevant finding is that early Congresses regulated the treatment of enemy prisoners.  Congress sometimes passed laws directing the President to see to the safekeeping of prisoners, and at other times required the President to implement the "law of retaliation" and torture or kill enemy prisoners in retaliation for mistreatment of American prisoners.

Concerning war and military powers, the Constitution establishes some areas of separation and other areas of concurrent authority.  The powers to declare war, raise and fund the military, and establish a system of military justice rest exclusively with Congress.  In contrast, the President lacks any exclusive war or military powers.  Instead, military powers not granted exclusively to Congress are vested concurrently with the President and Congress, although when congressional statutes conflict with presidential orders in areas of concurrent authority, the Constitution dictates that the will of Congress must prevail.