Guest Essayist: Horace Cooper, legal commentator and a senior fellow with The Heartland Institute

Article 1, Section 8, Clause 10-13

10:  To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
11:  To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
12:  To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
13:  To provide and maintain a Navy;

It is especially timely to discuss the so-called “war” powers of Congress in light of recent events internationally.  Although much focus at present is directed at the issue of the President’s authority, this essay will focus exclusively on the United States Congress.

  • To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  • To provide and maintain a Navy;

Pointedly Congress does not have specific authority to carry out the prosecution of a military engagement, but it does have significant authority to participate in the decision and continuation of that military engagement.  In that sense, the “War Power” is divided between the President and Congress.

Many Americans forget that the “War Powers” under the Articles of Confederation ostensibly rested with the national government but was far more attenuated in reality because it relied upon an enthusiastic acquiescence of the several states:  Article III of the Articles of Confederation. The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

The Founders sought to address this matter.  Not unlike the present debates over the President’s authority to carry out military actions, the Founders feared the ability of the monarch to enter into war without the consent of the people as they had witnessed the royal wars for centuries in Europe.  At the same time, they had learned that they should not take the principle of diffusion of war power too far.  In their mind, the Articles of Confederation had in fact gone too far and it represented a major national security threat for the newly independent United States of America.

As James Madison would explain to Thomas Jefferson in a letter in 1798, “The constitution supposes, what the History of all [Governments] demonstrates, that the [Executive] is the branch of power most interested in war, & most prone to it. It has accordingly with studied care, vested the question of war in the [Legislature].”

Thus, specific war powers are granted to the Congress – not the least of which is the actual power to declare war.

During the existence of the Articles of Confederation, the national government had the sole authority to create courts for the trials of piracy and related felonies committed on the high seas.  However, the national government did not have any authority to address the issue of compliance with the existing international rules against piracies and other crimes on the high seas.  Prior to the Revolution, all of the European nations had entered into agreements but the U.S. did not have authority to enforce these rules or to reject them.  The Constitution specifically addresses that limitation and gave the Federal government the ability to choose to comply, reject or modify international agreements regarding piracy.

First, Congress has the specific power to “declare war.”  A declaration of war is a formal declaration issued by at least one national government indicating that a state of war exists between that nation and another.   Congress has officially declared war five times.  In Federalist 69 Hamilton reminds readers that the power to declare war was an important one since the President of the U.S. did not have it.  Under the Constitution, Hamilton explains, the president’s authority was:

“. . . in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the land and naval forces . . . while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all of which by the Constitution would appertain of the legislature.”

Next, let us look at the power of Congress to grant letters of Marque and Reprisal.  This power grant a far more unusual and yet clearly lawful means for Congress to carry out its international and/or national security interests.  Here’s the essence of the power:  Congress can authorize a private person or private army – not a part of the United States armed forces – to conduct reprisal military-like operations outside the borders of the U.S.

Not unlike the powers exercised by the French Foreign legion, our Constitution authorizes Congress to grant such a right presumably with payment or a bounty in any instance in which the citizens of the U.S. are injured by individuals or armies of another country whenever the other country denies justice to the American(s) who have been harmed.

Additionally there is the rarely examined “capture clause” – the power of Congress to establish the rules for the distribution of spoils of captured enemy ships or captured territories.  In the modern war era, military victims publicly eschew the capturing or claiming of the goods and property of the conquered parties.  However, this was not always so.  In fact, the so-called “capture clause” was considered extremely important to the fledgling nation of America.

Often times the federal government could not afford to pay soldiers or obtain credit to buy armaments.  By being able to set up a means for disposing of the goods and other spoils that were captured in battle, the U.S. had an alternative way to address this issue.  General George Washington declared during the Revolutionary War that a centralized and standardized system for the handling of prizes was vital to the war effort. In fact, one of the first federal courts created by the United States government under the Articles of Confederation was the Federal Appellate Court of Prize – which existed to adjudicate disputes over spoils captured in war.

The final war power of Congress involves the authority to raise and support armies and to provide and maintain a navy.  While most of the early residents of America recognized that the federal government should have authority to “raise and support” armies, ultimately there was some disagreement over how that power should be dispersed.  Under the crowns of Europe, kings could not only declare war, they also had individual power to “raise and support” armies without needing the input of their subjects.  Even when Kings co-existed with Parliaments, their ability to exercise their war powers nearly carte-blanche stymied the ability of their subjects to exercise any significant influence – not just in war – in nearly all matters of national interest since wars sapped resources, finances, and labor in a way that Parliament couldn’t readily counteract.

Additionally the standing army operated as a direct threat not just on the purse strings of the nation but a clear threat was aimed at the citizenry as well especially when these forces concentrated themselves within the home territories in large numbers.  Instead of giving this power to the President, our system specifically requires that Congress approve the creation and timing of all rules involving the establishment of an army and navy.  In fact, this grant of authority is the basis for Congress’ power to establish the Uniform Code of Military Justice as well as selective service requirements.  With regard to the army in particular, the Constitution included the appropriations limitation as a means to quell fears that a standing army might be used to threaten American citizens.

Indeed Congress has broad power when it comes to war making.  But it is noteworthy that this power is divided in many ways with the President – not as a point of confusion or a result of a lack of trust in either the executive or the legislature, but instead as part of a precise calculation that if both the President and Congress must collaborate in order to carry out war, war would not be entered into easily or for long.

Horace Cooper is a legal commentator and a senior fellow with The Heartland Institute

14 replies
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    Tom Woods has a good article on the war power subject recently as:
    The Phony Arguments for Presidential War Powers

    For the moment, I take interest of the Letters of Marque and Reprisal in that Congress was able to hire mercenaries, pirates, and set bounties for what is now akin to present day CIA operations. That includes spying on foreign movements, lands, and armaments as well as surgical and calculated attack or assassination in reprisal to hostilities abroad. If intelligence and reprisal is not Necessary and Proper powers of military operations and protecting American citizens and interests abroad, then I don’t know what is.

  2. Joe Short
    Joe Short says:

    What is the significance of the phrase “…but no Appropriation of Money to that Use shall be for a longer Term than two Years” in the ability of congress “to raise and support armies”? It seems to me that even in times of peace, which the country has not seen in a long time, that phrase is effectively erased from the constitution???

  3. Janine Turner
    Janine Turner says:

    I thank you, Mr.Cooper, for your insightful essay!
    This is indeed a timely issue. It is fascinating to actually be able to break down these clauses bit by bit. The Letters of Margue and Reprisals is of note – that Congress can hire private persons or armies to conduct private army like missions outside of the U.S. I am curious about the Two Years stipulation re appropriation of money.. I’m not sure that I understand that and how it is done today. I am also curious about how President Obama was able to
    involve the US in military action in Libya without Congress’s approval..
    I am also curious as to the 5 times Congress has declared war:
    Would that be:
    1812 – we were attacked
    Civil War?
    World War 1
    World War 2

    Thank you and to all who are blogging with us!
    Spread the word ..
    God bless,
    Janine Turner

  4. Cutler
    Cutler says:

    Mr. Cooper’s essay was excellent and insightful. It would appear that the Army would have to go back to Congress for Federal funding every 2 years! Fascinating how folks manage to bypass certain Constitutional clauses such as that one. That isn’t even touching on war without Congressional approval.

    • Barb Zakszewski
      Barb Zakszewski says:

      The War powers outlined in our Constitution have been designed intentionally to make it difficult to go to war; and yet, we engage in conflict after conflict without following the Constitution at all. And these conflicts drag on and on.. witness Vietnam, the 2nd Gulf “war”, Korea.. there is really no end. and now we are being led into Libya for God knows how long? How can we get back to the Constitution with regards to declaring and fighting “wars”?

      The other parts of Mr Cooper’s article are fascinating.. I had no real idea what all these other powers meant until tonight.. Excellent… Thank you for this incredible opportunity to learn much more about our Great Nation than would ever be taught in history books..

  5. American Patriot
    American Patriot says:

    Janine – I am also curious as to the 5 times Congress has declared war:
    Would that be:
    1812 – we were attacked
    Civil War?
    World War 1
    World War 2

    War has not been OFFICIALLY declared since WWII
    Vietnam, Korea, Afganistan, Iraq, Somilia, Kosvo, Pakistan, Yemen, Libya HAVE NEVER BEEN Congressionally and Consitutional Wars.

  6. yguy
    yguy says:

    Since it is delegated to the full Congress to “make Rules concerning Captures on Land and Water”, how is the Third Geneva Convention, having been ratified by the Senate alone, legally binding per the supremacy clause?

  7. Jon
    Jon says:

    Shoot I’m really sorry I missed this essay. I would have loved to ask the authors thoughts on what was mean’t br the Law of Nations.

  8. Ariana Newcombe
    Ariana Newcombe says:

    “…war would not be entered into easily or for long”. I think both Iraq and Afghanistan wars “best fit” this “profile”… Our Founding Fathers missed their opportunity to point out that no appropriation of money should be used in the nation building process/business; probably, at that time nothing was considered too big to fail and nobody was considered too big for jail.


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