The confrontation between Congress and the President over the conduct of the war in Iraq is reaching a fever pitch. The President, exercising his constitutional authority as Commander-in-Chief, insists that Congress cannot micromanage operational decisions of the war, including troop deployments and withdrawal timetables. Congress, relying on its power to raise and support armies, is equally adamant in its view that with its power of the purse comes the power to oversee the operational conduct of the war and also to determine when and how to end the war.

A brief history lesson will bring some clarity to the dispute. The power Congress is now claiming was a power actually conferred upon it under the Articles of Confederation.   Article IX of the Articles provided that Congress “shall have the sole and exclusive right and power of determining on peace and war.” 

The initial proposal in the constitutional convention of 1787 would have continued this authority, giving to Congress the power to “make war.” There were, however, strong objections to this proposal, based on experience in the Revolutionary War. Charles Pinkney opposed giving such a power to the House of Representatives because it was too numerous for proper deliberation, secrecy and dispatch. Pierce Butler also opposed placing the power in the Senate, contending that the power to make war was more appropriately given to the chief executive. Accepting these concerns, James Madison and Elbridge Gerry moved to substitute “declare war” for “make war,” thus requiring the legislative judgment to launch a war, but leaving decisions both about operational conduct and the negotiation of peace terms to the President. Madison’s motion passed 7-2. Significantly, following the vote, after Rufus King noted that the power to “make” war might be understood as a power to “conduct” it, which was an Executive function, Oliver Elseworth gave up his objection and the vote of Connecticut was changed to yes.

Butler then moved to give Congress the power to “make peace” in addition to the power to “declare war,” but that motion failed unanimously, by a vote of 0-10. Justice Joseph Story would later explain in his treatise that the motion failed “upon the plain ground, that it more properly belonged to the treaty-making power. The experience of congress, under the confederation, of the difficulties, attendant upon vesting the treaty-making power in a large legislative body, was too deeply felt to justify the hazard of another experiment.”

In other words, the very question at issue today was debated and resolved in 1787. Congress was not given the power to “make war,” in the sense that it could control the operational conduct of a war. Nor was it given the power to “make peace” and bring the war to a conclusion. Both of those powers were assigned to the President who, as Chief Executive and Commander-in-Chief, could act with the secrecy and dispatch that is so often critical in such matters. Congress’s recent attempts to micromanage the war, and to terminate it prematurely by imposing a timetable for withdrawal on the President, are therefore not only unconstitutional, but downright dangerous.