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Who Has War Powers?

Our Constitution provides that the Congress make declarations of war or define and punish international offenses, in Article. I. Section. 8. “The Congress shall have Power to declare War, grant letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To raise and support Armies; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”, although the President is “Commander in Chief of the Army and Navy of the United States and of the Militia of the several States, when called into the actual Service of the United States" he has no such power to declare war. 

As Commander in Chief the President has full authority to direct the military of the United States of America in her defense by repelling attacks, but within the confines and regulations set forth by the Congress.  Nor was that executive power meant to extend to foreign soil or the high seas except in self-defense without the express consent of Congress.  

It is clear that the Congress was meant to be in control of the armed forces and that only the Congress has the Constitutional authority to declare War or to "define and punish, Offenses against the Law of Nations", as in the case of Libya.

The fact that many previous Presidents and Congresses have ignored the Constitution, whether it is in matters of war or otherwise, is not solid grounds to support an argument.  The Constitution is very clear in it's original intent, it is when we fall prey to the "living Constitution" advocates or the precedent of other failures, that it's meaning becomes vague.

The founders were very careful to create a Republic with a separation of powers so as not to vest our President with another monarchy like King George enjoyed.  One of the powers they strove to separate from the President was the ability to make war (as opposed to defending the country).  A constitutional student would find that, even President George Washington, more than once, reinforced this separation of powers by deferring to the Congress when asked to endorse an offensive operation.

The War Powers Resolution of 1973 (commonly referred to as the War Powers Act) was an effort in part to make sure the intent of the Constitution would not continue to be ignored.  It states that “(c) The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”   Whether heretofore ignored, it is still the law of the land, and should be adhered to and enforced, unless/until it was to be found unconstitutional by the Supreme Court.

The original intent of the founding fathers was that, Congress was to make the rules and regulations, and decide when and where we went to war or enforced international laws and the President directed the armed forces in that effort and in the defense of the Union.  The founding fathers’ concept of maintaining a standing Army and Navy was for the sole purpose of defending the Union and its interests from uprisings and foreign attacks.

I believe, too many people view the Commander in Chief, as like a head coach directing the offense and defense.  Where, indeed, it is the Congress that is the head coach of our armed forces, the CinC is like the defensive coordinator by default (directing training and defensive operations) and may take on the duties of the offensive coordinator when under attack and/or authorized by the head coach (Congress). 

One of the greatest challenges our nation has faced, and will continue to face, is the usurpation of power by the executive branch, as forewarned by the founding fathers.  A second great challenge is stopping and reversing the abdication of responsibility and power by a Congress engrossed in squabbling over how to spend (waste) our money.