Military Power and Congress

Most people assume that the president oversees the military in the United States. As commander in chief of the U.S. Armed Forces, the president has broad authority to make decisions that affect the military branches, especially during wartime, including determining troop movements and developing strategies for combat.

However, that is not the only military power outlined in the Constitution. The Constitution also 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 government. It includes the power to provide for the common defense, declare war, raise and support an Army and Navy, make rules and regulations for the military, and purchase land for military bases.

How does this divide in military power work in reality? This brief examines those powers and their utilization throughout U.S. history.

The Power to Declare War

The most direct power Congress has is the power to declare war. The principle behind this is that no one person should put the burden of war on the entire country, and such a choice should instead require the masses’ approval. As U.S. Supreme Court Justice Joseph Story wrote in 1838, “[I]t should therefore be difficult in a republic to declare war; but not to make peace.” This is why the Constitution grants Congress the power to declare war and not the president.

Like many facets of American law and history, this power is neither simple nor straightforward. Congress has declared war only 11 times throughout history and last declared war in June 1942. A casual observer of the news would note that there have been multiple wars over the last eight decades, so how did these wars happen without a declaration of war from Congress?

The answer is that in some cases, Congress gave a different form of authorization (similar to a declaration of war, just by another name), or the president moved forward with military action without congressional approval. In response, Congress passed the “War Powers Resolution,” which modernized the declaration of war power and proscribed rules for when the president can use the military to engage in combat. 

The Power to Raise and Support an Army and Navy

Joseph Story said, “[T]he power to raise an army is an indispensable incident to the power to declare war; and the latter would be literally [ineffective] without the former.” In other words, the power to declare war is meaningless without an Army to fight the war. This view led to Congress having the power to establish an Army and Navy and bearing the responsibility to pay for it.

An early example of this occurred in 1789 during an interaction between George Washington and the First Congress. To transfer troops provisioned under the Continental Congress to the United States, Congress needed to pass a law. After delayed inaction by Congress and because he did not believe he had the power to do so as president, Washington sent two letters to Congress and requested that Congress pass the law to provide him an Army. As a result, the First Congress passed “An Act to recognize 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, 29 September 1789.” 

A more modern example is the legislative framework for the U.S. Department of Defense and military branches. Congress passes a Nation Defense Authorization Act (NDAA) every year, and the NDAA sets forth the policy and funding priorities for the military for the following year. Notably, while the president has the power to veto the NDAA, just as he/she does for any other bill, Congress determines the actual policy and funding goals. Interestingly, even if the president vetoes the NDAA, he/she must enforce and implement those provisions if Congress overrides the veto, which is what happened with the most recent NDAA. 

Ultimately, Congress has massive influence over the U.S. military and is responsible for raising and supporting it – a power held since the founding of theUnited States. 

Conclusion

Additional topics to explore in future articles include the Uniform Code of Military Justice, military courts, U.S. Senate confirmation hearings, differences in power between times of war and peace, recruitment versus conscription in the military, and the two-year time limit on appropriations for the Army. 

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One Research Boulevard, Ste. 104, Starkville, MS 39759

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One Research Boulevard, Ste. 104, Starkville, MS 39759

(662) 325-8409

201 Massachusetts Ave., NE, Ste. C-7, Washington, D.C. 20002 

(202) 546-1837