Divided War Powers:
The President & the Congress

By Alan Shapiro

To the Teacher

The debate over Iraq has created an important teachable moment about the power to make war under the U.S.'s system of government. The Constitution's provisions on the executive and legislative branches; the reasons for its division of powers and system of checks and balances; past conflicts between the president and congress; and the potential for a constitutional crisis with a divided government—all have become part of the Iraq War debate.

The first student reading below offers some historical background from the 18th and 19th centuries; the second provides examples of the extension of presidential power after World War II and controversies over it during the Korean and Vietnam wars and the Iran-Contra affair; the third focuses on mounting opposition to presidential policies in Iraq and its potential consequences. All conclude with discussion questions and, finally, suggestions for further inquiry.

Student Reading 1:
The "Flying Fish," Pirates and "Blank Checks"

In the late 1700s, the U.S. came close to declaring war on France. Congress decided to halt all trade with France. It authorized President John Adams to stop ships heading to French ports. Adams went further. He ordered naval commanders to stop ships heading to and from French ports.

In 1799 the USS Boston seized the "Flying Fish," a Danish vessel, which was sailing in from a French port. Its owners sued in a U.S. maritime court. In 1804 the case reached the U.S. Supreme Court (Little v. Barreme), which ruled in favor of the ship owners. Chief Justice John Marshall wrote that commanders "act at their own peril" when they obey invalid orders. The president's decision was "unlawful" because it went beyond what Congress had authorized. (See the "judicial review" section of www.law.umkc.edu and Adam Cohen, "Congress, the Constitution and War: The Limits on Presidential Power," New York Times, 1/29/07)

The Constitution states: "The president shall be the commander in chief of the army and the navy of the United States" (Article II, Section 2); Congress has the power "To declare war…."; "To raise and support armies"; and "To provide and maintain a navy." (Article I, Section 8) From the country's earliest days, conflicts have erupted between the executive and legislative branches over exactly how these provisions should be interpreted.

The framers of the Constitution deliberately created a government that limits the powers of each branch, creating a government of checks and balances. Why? Writing in The Federalist after the Constitution had been completed in 1787, James Madison declared: "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." (No. 47)

In 1815, when Madison himself was president, Congress turned down his request that it declare war on pirates operating out of Algiers who had seized U.S. sailors and ships. Congress did authorize Madison "to employ such U.S. armed vessels" as he judged necessary. The president sent a flotilla of ships to stop the piracy.

Congress has invoked constitutional power "to make war" just five times—the War of 1812, the Mexican War in 1846, the Spanish-American War in 1898, World War I in 1917, and World War II in 1941. "Yet," as Gerald Astor writes in Presidents at War, "the armed forces have been in harm's way close to two hundred times." Congress has often given the president a "blank check" like that given Madison, at times no check at all.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. How does the "Flying Fish" event demonstrate the workings of constitutional checks and balances?

3. How does the war on pirates demonstrate the workings of constitutional checks and balances?

4. In what sense did Congress give Madison a "blank check"?

5. What is Madison's explanation of why the Constitution's framers wanted a division of powers in the new government?

Student Reading 2:
National Security and the Communist Threat: Korea, Vietnam, and Nicaragua

The Korean War

World War II and nuclear weapons made the U.S. and the Soviet Union world powers. In the cold war that followed between them, national security became the chief concern of American presidents. In 1950, President Harry Truman saw communist North Korea's invasion of South Korea as a threat to the U.S. But it was not a congressional vote that brought the U.S. into the Korean War. A United Nations resolution condemned North Korea's invasion of South Korea and called upon UN members to "render every assistance" to restore peace. This is what President Truman cited in his decision to send troops to Korea.

While Senator Robert Taft supported the use of force in Korea, he saw "no legal authority for it." Senator Paul Douglas justified the president's action, emphasizing 1) the need to react swiftly to a "disaster that can occur while Congress is assembling and debating" and 2) the U.S.'s interest in preventing "communist aggression" (given the Soviet Union's almost certain sponsorship of North Korea's incursion). Such reasoning "would guide American military actions for most of the remainder of the twentieth century," according to Gerald Astor in Presidents at War.

But this justification for war, under the banner of "national security," would also open the door for presidents of both parties to repeatedly intervene in other countries, either overtly or covertly. A president might call for the use of American military, as in Grenada (Reagan). Or, as in Guatemala (Eisenhower), the president might authorize secret use of a local military to overthrow a foreign leader that was viewed by American officials as a threat to U.S. interests. The president might secretly supply arms and intelligence, as to the Afghani mujahideen who were fighting the Soviets (Carter). Or the president might order the bombing of suspected jihadists, as in Sudan (Clinton).

In none of these cases did the Congress exercise its power "to declare war." In some cases, only a few congressional leaders even received briefings about what the U.S. was doing, while most legislators were left in the dark.

The Vietnam War

President Lyndon Johnson stated, in an August 1964 TV address to the nation, that ships from communist-led North Vietnam had fired on two American destroyers in the Gulf of Tonkin. Evidence for this claim was very questionable. Nor did the president explain what American destroyers were doing in the gulf that might have been cause for North Vietnamese concern. He asked Congress for the power to respond to North Vietnam's "unprovoked" attacks.

A post-World War II president often has secret information from the CIA and other federal intelligence agencies. It is difficult for legislators who don't have this information to refuse when a president asks them to support their country's national security. In 1964 anyone who denied Johnson's request could easily be called "soft on communism." Today the charge would be "soft on terrorism." At any time a congressional dissenter can be called "unpatriotic." All legislators feel the pressure to defend security and the flag.

On August 7, 1964, Congress approved what is known as the Gulf of Tonkin resolution, supporting "all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression."

This "blank check" for presidential action in Vietnam continued when Richard Nixon became president. Convinced that North Vietnam was using neighboring Cambodia as a sanctuary for its troops, Nixon ordered an invasion of that country. In an April 30, 1970 TV speech, he said that the U.S. had "scrupulously respected" Cambodia's neutrality. This was not true. The president had ordered secret bombings of that country for several months. Now he announced that sending in U.S. troops was necessary to win the war against North Vietnam.

This time, though, Congress eventually rebelled against the president's actions through its constitutional power of the purse: "No money shall be drawn from the treasury but in consequence of appropriations made by law…." (Article I, Section 8) Congress had not been consulted about either the Cambodia bombings nor the decision to send in troops. In December 1970, Congress prohibited the use of funds to finance introducing troops into Cambodia or to provide U.S. advisors to Cambodia. In June 1973, Congress set August 15, 1974, as the date for the end of all funding for combat activities in Southeast Asia. In April 1975 the last U.S. troops left Cambodia and Vietnam.

Nicaragua and the Iran-Contra Affair

In the 1960s and 1970s, the U.S. supported a brutal (and anticommunist) dictator in the Central American nation of Nicaragua: Anastasio Somoza. In 1979, left-wing Sandinista revolutionaries overthrew Somoza. In response, President Ronald Reagan began supplying weapons and training to the Sandinistas' foes, the Contras. A disapproving Congress passed legislation barring this support in December 1982. The president said that interfered with his authority to conduct foreign affairs. Legislators argued that the president acted unconstitutionally if he involved the country in a war, even if the soldiers were not American.

Determined to aid the Contras anyway, President Reagan's aides secretly raised money from other countries to finance the Contras. Despite the president's public statements that he would not ransom American hostages in Lebanon or sell arms to Iran, aides did both in a complicated scheme to channel money to the Contras. This scandal, known as the Iran-Contra Affair, also involved undercover, illegal deliveries of money to the Contras, shredded documents, lies, and alleged failures of memory by the president and his aides.

This huge scandal resulted in several convictions, including that of John Poindexter, the president's national security advisor. The convictions were overturned on technicalities. President George H.W. Bush, who had been vice president during the Reagan years, pardoned five officials who had been charged in Iran-Contra, including Defense Secretary Caspar Weinberger and CIA employees.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. The Korean War lasted for three years, the Vietnam War for 11. How do you explain the fact that in neither case did Congress exercise its power "to declare war"?

3. How do you understand Senator Douglas' reasoning about President Truman's actions? Do you agree with the senator? Why or why not?

4. Why are legislators so reluctant to defy the president on national security matters even though those legislators have the constitutional power "to declare war" and the president does not?

5. Why do you suppose that President Nixon kept from Congress the fact that U.S. planes were bombing Cambodia? Was he justified? If you find it difficult to answer these questions, what might you do to answer them?

6. How do you explain a president's use of covert actions that the public and often most legislators know nothing about?

7. Should President Reagan have been punished for the Iran-Contra Affair? Why or why not? If you don't think you have enough information to answer these questions, how might you get it?

Student Reading 3:
The Congress, the President and Iraq

President Bush announced in January 2007 that he was sending an additional 21,500 troops to Iraq. He said on CBS News' program "60 Minutes" that he knew Congress could vote against it, "but I've made my decision and we're going forward." The president has said repeatedly, that he is "the decider" on issues of war.

But during a hearing on congressional war powers, Senator Arlen Specter (PA), also a Republican, said, "I would suggest respectfully to the president that he is not the sole decider. The decider is a shared and joint responsibility." (1/30/07)

As commander-in-chief, the president clearly has the power to conduct a war. How he or she conducts it, though, can be affected by congressional powers, especially Congress' power to approve or deny funds for the military venture. The issue is not whether either branch has the power to make decisions, but how each branch chooses to exercise its power.

In October 2002, the House of Representatives (by a vote of 296-133) and the Senate (by a vote of 77-23) authorized the president "to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to… defend the national security interests of the United States against the threat posed by Iraq…."

Neither the Senate nor the House of Representatives inquired in any depth into how or whether Iraq threatened "the national security interests of the United States." They did not insist that United Nations inspectors be given the opportunity to finish their search for the weapons of mass destruction that the Bush administration had alleged the Iraqis possessed. From late 2002 to mid-March 2003, they had found none.

"Time and again since World War II, when the issue of whether to go to war has arisen, Congress has ducked behind open-ended resolutions ceding its rights to presidents," writes Gerald Astor in Presidents at War. He cites a 2004 comment by former senator George McGovern (who challenged Nixon for the presidency in 1972 as an antiwar candidate) about Congress's ability to sanction war: "A lot of people in Congress don't want that responsibility. They would rather leave it to the executive branch." In the case of Iraq, a number of Senate and House members who chose to "leave it to the executive branch" have since publicly expressed remorse for doing so.

The U.S. invasion of Iraq began on March 19, 2003. Since then, we have learned that Iraq had no weapons of mass destruction, had no relationship with Al Qaeda, and was no threat to "the national security interests of the United States." These revelations were largely responsible for a 2006 congressional election that ended Republican majorities in both the House and the Senate for the first time since 1995.

According to polls, most Americans now support at least the gradual removal of troops from Iraq. Public support for the war is eroding due to:

• Anger at the misrepresentations that led to the Iraq invasion
• Severe criticism of the conduct of the war
• The continuing, largely Sunni, insurgency and terrorist warfare against the U.S. troops
• Failures of previous troop increases to improve the situation
• The steadily rising death toll of American soldiers and marines
• Opposition to Americans trying to referee a civil war between Sunnis and Shiites
• The daily chaos of explosions and civilian deaths on the streets of Iraqi cities

On February 16, members of the House of Representatives expressed their opposition to the president's decision to increase the size of the troop force in Iraq by passing a nonbinding resolution (by a vote of 246-182) on the war. They stated their support for the troops and but also stated that they disapproved of the president's decision to deploy additional combat troops to Iraq. Seventeen Republicans supported this Democratic resolution. Two Democrats opposed it. Most Republicans argued that more troops are needed to fight militant Islamists in Iraq, which they call "the central front" of the "war on terror." Republicans said that the resolution would "embolden terrorists" and that victory in Iraq was essential to prevent widespread instability in the Middle East.

Democrats will propose binding legislation in the coming months to restrict spending on the war or limit troop deployment. Another proposal might call for a repeal of the 2002 resolution authorizing the president to use American troops against Iraq. Any such legislation would have major consequences.

If, for example, Congress acts to restrict war financing, what will the president do? Accept a limitation he opposes? Or insist that he has the constitutional authority as commander-in-chief to override it? If the latter, the country will face a constitutional crisis.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. According to President Bush, what was "the threat posed by Iraq"? If you don't know, how might you find out?

3. What reasons might any legislator give to urge a repeal of the congressional resolution that authorized the president to use military force against Iraq? What reasons might any legislator give to oppose such a repeal?

4. Why has public opinion turned against the Iraq war?

5. Why did the House of Representatives vote its disapproval of the president's decision to increase American troops in Iraq?

6. How do you evaluate Republican arguments against the House resolution?

7. How would binding legislation to restrict financing or troop deployment affect the conduct of the war?

8. Why didn't Congress declare war before any of the multiple U.S. overt and covert military actions around the world?

For writing

1. Explain, with at least two examples, why Congress has ceded its right "to declare war."

2. Write a reflective essay on your views of the Iraq War that includes some consideration of how and why your views might have changed during the course of the war.

3. Would you have supported the nonbinding resolution passed by the House of Representatives? Why or why not?

For inquiry

If students, either independently or in small groups, pursue an investigation of one of the subjects below, they should begin by framing a clearly worded question that will guide their inquiry.

Each of the following involves presidential military action that raises constitutional questions:

• President Eisenhower and Iran
• President Kennedy and the Bay of Pigs
• President Ford and the "Mayaguez"
• President Carter and Afghanistan
• President George H.W. Bush and Panama
• President Clinton and Kosovo

Each of the following Democrats has already announced interest in binding legislation that will affect the U.S. in Iraq:

• Senator Joseph Biden (DEL)
• Senator Barack Obama (IL)
• Senator Russ Feingold (WIS)
• Senator Hillary Clinton (NY)
• Congressman John Murtha (PA)

Two presidential candidates, Senator Joseph Biden (D-DE) and Senator Barack Obama (D-IL) are on record with proposals. Biden wants the Senate to repeal the 2002 resolution authorizing the president to use American troops to "defend the national security…against the threat posed by Iraq." Obama would mandate troop reductions. A precedent is the 1974 congressional approval of an act that limited the number of American troops in Vietnam to 4,000 within six months.

Congressman John Murtha (D-PA) proposes Iraq spending bill provisions to restrict troop deployment unless certain standards are met-adequate manpower for its mission and satisfactory equipment and training, as well as guarantees that Iraq combat assignments last no longer than one year and that redeployment to the U.S. for one year follow such assignments. Rep. Murtha and other congress members are concerned that the U.S. military is stressed by the length of the Iraq and Afghanistan wars. They fear that raising troop levels might mean sending into combat troops who are ill-prepared.

Senator Russ Feingold (D-WI) supports legislation to prohibit the use of funds to continue troop deployment in Iraq six months after it is enacted. This, he said, would "force the President to bring our forces out of Iraq and out of harm's way." The senator would make exceptions for a limited number of troops to stay in Iraq to fight terrorists, to train Iraqi troops, and to protect U.S. personnel.

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibiity. We welcome your comments. Please email author Alan Shapiro at: ashapiro7@comcast.net.

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