title: Presidential War Powers
Creators: name: Formisano, Matt Scott
Publisher: name: Utah State University
Year: 2013

description: Even before the framing of the Constitution, the Framers feared an executive power that would grow too strong. This fear was reflected throughout debates held before, during, and after the American Revolution. Even today, debate still continues as to what the executive power entails when it comes to acts of war and treaties. The United States Constitution was framed with the purpose of dividing power between the branches of government in order to avoid abuse and tyranny. “The Constitution bestows enormous power and responsibility on the President to protect the nation’s security and safeguard the people’s liberty” (Matheson 1). Throughout the history of the United States, the President has had to find the delicate and important balance between liberty and security. That balance is most fully manifested through the President’s interpretation and carrying out of the executive power during national security crises. This thesis will examine in-depth the Framer’s giving the President the power of prerogative during national security crises as outlined in Article I Section 8 and Article II Section II of the Constitution. It will focus on the works of Locke, Montesquieu, and Blackstone, as well as on the British system of government and the Framers’ decision to give prerogative to the President of the United States. The British model had a tremendous influence on the framing of the 18th century Anglo-American Constitution and what the Framers understood as the powers of the Commander-in-Chief. Locke, Montesquieu, and Blackstone argued in favor of separation of powers, a federative power, and the executive having absolute power on issues of war. These three men in particular would have a tremendous influence on the Framers and their view on executive war powers.
My thesis will also examine the important change in the Constitution’s Declare War Clause, specifically the change in the wording from “make” to “declare war.” I contend that although Congress was given the power in Article I, section 8(11) to declare war, by changing the language from “make” to “declare” in that provision, the Framers of the Constitution intended to give the President the power to engage the country in war without the consent of Congress. I will provide evidence for this argument by reviewing three significant episodes in the exercise of national security power by the President: President George Washington’s Neutrality Proclamation, as discussed in the Pacificus-Helvidius debates, Abraham Lincoln’s suspension of the writ of habeas corpus and use of military tribunals during the Civil War, and President George W. Bush’s invasion of Iraq with the approval of Congress through the Authorized Use of Military Force, as well as surveillance and detainee programs. These three case studies are important examples of the President using his executive power to protect the nation from threats both at home and abroad. They were crucial moments in American history which have been criticized by many as an abuse of Presidential power. However, when examined, these critical events demonstrate the Framers’ intent to give the President the power of prerogative and the Presidents’ correct use of that power. I will argue that from The Federalist Papers to the actions of President Bush, there has been support for giving the President the power of prerogative to go to war without Congress’s consent.