The Constitution grants Congress the power to declare war. Although a plain reading of the Declare War Clause suggests that Congress has the exclusive power to initiate armed conflict, historical practice indicates otherwise. Congress has only declared war five times in American history and every American armed conflict since World War II was waged without a declaration of war. Opposition to the Vietnam War and the 2003 Iraq War raised concerns about unconstitutional wars. 

This Note examines whether the Founders would have considered it constitutional for the President to initiate military action absent a congressional declaration of war. Analyzing the theoretical and political foundations of the declaration of war reveals that the Founders believed war powers are shared between the executive and legislature. Yet, the geopolitical reality of the early United States influenced how the President exercised war power in practice. The Quasi-War with France set a precedent that the First Barbary War reinforced: the President can initiate armed conflict without a formal congressional declaration of war if force is used defensively, the conflict is limited, and Congress provides partial authorization. 

Keep Reading The Founders’ Declaration of War: The Declare War Clause and the Constitutionality of Undeclared War