The framers of the United States Constitution designed a system of checks and balances that separates power between the three branches of government. One of these tenants is the allocation of war powers. This design allocates war powers between the Legislative and Executive branches to safeguard against a misuse of military force.

            Since the World War II we have witnessed a shift in those powers to the executive through a gradual erosion of legislative authority. Giving more power about the decisions to go to war to the Executive branch. This shift in power raises questions about the ethical reasoning for going to war, who should make these decisions, and how should a war be conducted?

The Shift in War Powers

            The Constitution of the United States of America separates power between the Judicial, Legislative, and Executive branches of government. This same thinking was applied to the ability to make war. The Constitution divides power to make war between the Congress and the President. The Congress is tasked with the ability to declare war (U.S. Const. art. I, § 8) and the President is given the duty to carry out the war as Commander in Chief of the Armed Forces. (U.S. Const. art. II § 2). The Framers of the Constitution feared that the ability to declare war would be influenced by the President’s political and personal ambition and would shape the nation’s policy toward war. They knew that any thought that a president may become an elected despotic monarch would be rebuked by the states when the Constitution was presented for ratification. Alexander Hamilton proposed that Congress would have the ability to “declare war” and that the President would direct the war only after it had begun. (Blumrosen & Blumrosen, 2011).

            From the adoption of the Constitution in 1789 until 1950, the war powers described in the Constitution were mostly followed. In 1950, North Korea invaded South Korea. President Harry Truman ordered the armed forces of the United States to defend South Korea. Truman did this without a declaration of war or authorization of Congress. (Blumrosen & Blumrosen, 2011). Every major U.S. war since has been fought without a declaration of war but instead through Congressional “use of force” war initiations that delegated the power of Congress to declare war to the President. (Ramsey& Waxman, 2023).

The Compromised Balance

            The idea that a war can be conducted through a congressional “authorization of the use of force,” began with the Tokin Gulf Resolution of 1964. This authorized President Johnson to escalate military force in South Vietnam. This authorization followed a North Vietnamese attack on a United States Naval vessel in the Tonkin Gulf. Although the attack has never been proven to have occurred, this incident became the reasoning for legislation allowing the President to escalate the war in Vietnam. During the war, several lower Federal appeals courts ruled that Congress can constitutionally authorize a President to commence war without a declaration of war. (Minda, 2007).

            Congress attempted to reign in the power of the President to initiate war with passage of the War Powers Resolution (WPR) of 1973 over the veto of President Nixon.  Although the WPR was a political success at the time it was passed, it has been a failure in terms of limiting the power of the President. (Dudziak, 2023). Every President since the passage has used legal opinions of the Office of Legal Counsel to build upon giving more power to the President regarding the ability to make war. Although the WPR has requirements that the President inform Congress of the initiation of hostilities, the executive branch has determined what that notification looks like. As an example, when President Reagan initiated the bombing of Libya, Congress received a notification that said, “…the planes are in the air.” (Dudziak, 2023).

After the terrorist attacks of 9/11/2001, Congress passed the Authorization of Use of Military Force (AMUF) to allow the President to use force against those who perpetrated the attacks. Since then, the AMUF has been used to authorize military attacks in 10 countries across two continents. (Harwood, 2022). Many of these military operations have been carried out with the use of emerging technologies, such as the use of drones. This allows a quick response without the need to mobilize the military forces in such a way that would allow time for Congress to act. This shows a need for the AMUF to be updated to reflect the changing nature of military action and the use of new technologies that allow U.S. military force to be used all over the world. (Harwood, 2022). It could be argued that the AMUF needs to be repealed and a new use of force be debated by Congress.

The Just Use of Military Power      

Traditional theories of a just war are based on jus ad bellum. According to St. Thomas Aquinas, this meant that a war had to be just to be authorized. Aquinas required certain elements to be present for a war to be just. These elements included that the state had to have authority to conduct the war, and those that were being attacked had to have committed an act that validated the

war, and the attacker had to have the correct motive. Later, interpretations were added to the conditions. War needs to be a last resort after all other attempts to solve the problem have failed. The war needs to be carried out in proportional way compared to the original transgression. Success of the war needs to be reasonably present. Finally, a declaration of war needs to be present. (Corn, Gurule, Jensen, & Margulies, 2019).

            Jus ad bellum concerns the reasoning for going to war, whereas jus in bello concerns the conduct of the war. The intentional killing of non-combatants is prohibited. Unintentional harm to non-combatants is permissible if it falls within the original conduct of the war and only if the least harmful means are chosen. (Lazer, 2017).

Biblical Perspectives

            Jesus addressed the principles to which he expects his followers to adhere. Jesus said that his followers must be servants to others. (English Standard Version Bible, 2001, Mark 10:42-45). It could be inferred from this teaching that government should do the same. Government should serve the people it governs. Therefore, governments should only go to war when the war benefits the people that the government serves. If war is carried out for other reasons, then the war would be unjust. But the ones that are peacemakers are the ones that will be called “the son of God.” (English Standard Version Bible, 2001, Mark 5:9).

Paul wrote that we should adhere to government authority. (English Standard Version Bible, 2001, Romans 13:1). But when government is unjust, Paul wrote that we should continue to be just and adhere to the consequences. (English Standard Version Bible, 2001, Acts 5:29).

Based on the Biblical principles and teachings, it can be known that we should seek peace whenever possible. We should use war as a last resort. And only when it is necessary to protect the people that a government serves.

Restoring Balance and Ensuring Just Use of Military Force

            The changing nature of war and conflict in the world today has caused a shift from the constitutional principles of Congress officially declaring war to a system that reacts to hostilities and then attempts to get approval from Congress. To restore the balance so that Congress declares war and the president carries out the war, congress needs to take back the power that they have delegated to the President. The War Powers Act should be amended to provide more responsibility to Congress and stricter regulations on the Executive branch.

Conclusion

            Traditional just war theories and biblical perspectives on leadership show the relevance of ethical government and the morality that should guide the decisions we make between war and peace. The principles of servant leadership and a call to prioritize the welfare of the people is a call to only advocate for war as a last resort. We should pursue peace above all political or personal ambitions.

            The changing nature of global politics and the introduction of new technologies requires that we must reevaluate the institutions governing the power to go to war. We need to balance the constitutional separation of powers with the need to act fast to protect the people of the United States.

 

 

 

 

 

 

 

References

Blumrosen, Alfred W.  & Blumrosen, Steven M.  (Winter, 2011). ARTICLE: RESTORING THE CONGRESSIONAL DUTY TO DECLARE WAR. Rutgers Law Review, 63, 407. https://advance.lexis.com/api/document?collection=analytical-materials&id=urn:contentItem:53K7-S3Y0-00CW-F0MC-00000-00&context=1516831

Corn, G. S., Gurulé, J., Jensen, E. T., & Margulies, P. (2019). Aspen Treatise for National Security Law (2nd ed.). Aspen Publishing. https://libertyonline.vitalsource.com/books/9781543813463

English Standard Version Bible. (2001). ESV Online. https://esv.literalword.com/

Dudziak, M. L. (2023). The Unhappy Legal History of the War Powers Resolution. Modern American History, 6(2), 270–273. doi:10.1017/mah.2023.26

Harwood, G. (2022). Ending Infinite War: Rethinking Congressional War Authorization in The Age of Drones. Chicago Policy Review (Online), https://go.openathens.net/redirector/liberty.edu?url=https://www.proquest.com/scholarly-journals/ending-infinite-war-rethinking-congressional/docview/2615932285/se-2

Lazar, S. (2017). Just War Theory: Revisionists versus Traditionalists. Annual Review of Political Science, 20(1), 37–54. https://doi.org/10.1146/annurev-polisci-060314-112706

Michael D. Ramsey& Matthew C. Waxman (2023). Articles: Delegating War Powers. Southern California Law Review, 96, 741. https://advance.lexis.com/api/document?collection=analytical-materials&id=urn:contentItem:6BGY-2061-F0R8-C44N-00000-00&context=1516831.

Minda, Gary (Fall, 2007). Symposium: Congressional Authorization and Deauthorization of War: Lessons from the Vietnam War. Wayne Law Review, 53, 943. https://advance.lexis.com/api/document?collection=analytical-materials&id=urn:contentItem:4SWN-BYV0-00CW-00SK-00000-00&context=1516831

U.S. Const. art. I, § 8

U.S. Const. art. II § 2