Georgetown Center for the Constitution

The Congress shall have Power To . . . declare War . . . .

Related Citations

Antonio F. Perez, A Whole Text Reading of the War Powers Clauses: Why the Constitution’s Text Obviates Esoteric War Powers Debates and Encourages Policy Flexibility and Democratic Accountability, 12 Geo. J.L. & Pub. Pol’y 861 (2014).

Arguing that the text of the Constitution establishes the President’s power to use force, while the “declare war” power and other enumerated powers are legislative.

Alfred W. Blumrosen & Steven M. Blumrosen, Restoring the Congressional Duty to Declare War, 63 Rutgers L. Rev. 407 (2011).

Describing the Framers’ fears of a powerful executive and the history of their decision to vest the power to declare war in Congress.

Michael Stokes Paulsen, The War Power, 33 Harv. J.L. & Pub. Pol’y 113 (2010).

Arguing that the original meaning of “declare” in the Declare War Clause was to create a legal condition of war.

David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689 (2008).

Arguing that there is little Founding-Era evidence to support any argument that the conduct of military campaigns is outside of legislative control.

M. Andrew Campanelli, et al., The Original Understanding of the Declare War Clause, 24 J.L. & Pol. 49 (2008).

Arguing that most of the Founders likely believed it would violate the law of nations and U.S. law for the President to create undeclared war.

Saikrishna Bangalore Prakash, Imperial and Imperiled: The Curious State of the Executive, 50 Wm. & Mary L. Rev. 1021 (2008).

Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 Tex. L. Rev. 299 (2008).

Saikrishna Bangalore Prakash, Exhuming the Seemingly Moribund Declaration of War, 77 Geo. Wash. L. Rev. 89 (2008).

Arguing that Congress declares war any time it authorizes or commands war, even if it does not use the phrase “declare war,” and that Congress has the power to enact detailed war declarations that do not leave the Executive Branch with much discretion.

Robert J. Delahunty & John Yoo, Making War, 93 Cornell L. Rev. 123 (2007).

Arguing that the Framers used words other than “declare” to describe initiating wars, such as “engage” and “levy.”

Saikrishna Prakash, Unleashing the Dogs of War: What the Constitution Means by “Declare War”, 93 Cornell L. Rev. 45 (2007).

Arguing that the Declare War Clause grants Congress plenary authority to decide whether the United States will wage war, including retaining that authority even when another nation has declared war on the United States.

Saikrishna Prakash, A Two-Front War, 93 Cornell L. Rev. 197 (2007).

John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 148-49 (2005).

Arguing that “[w]hen the Framers employed ‘declare’ in a constitutional context, they usually used it in a juridical manner, in the sense that courts ‘declare’ the state of the law or the legal status of a certain event or situation.”

Michael D. Ramsey, Presidential Declarations of War, 37 U.C. Davis L. Rev. 321 (2003).

Arguing that modern presidential communications that the country is engaging in hostilities are declarations of war because they are formal announcements that the United States is entering a state of war, provides the reasons for the conflict, and its objectives.

Michael D. Ramsey, Text and History in the War Powers Debate: A Reply to Professor Yoo, 69 U. Chi. L. Rev. 1685 (2002).

Arguing that “in the eighteenth century declaring war was spoken of in a broad sense to include acts, and that the proclamation of war (‘declaring’ war in its narrow sense) had primarily a rhetorical and communicative, not legal, function.”

John C. Yoo, War and Constitutional Texts, 69 U. Chi. L. Rev. 1639 (2002).

Arguing that “the President possesses the power to initiate and conduct hostilities as commander-in-chief and chief executive under Article II of the Constitution, checked by Congress’s power of the purse,” while “[t]he Declare War Clause simply confers on Congress juridical power to both define the United States’ legal relations with other countries and trigger domestic constitutional authorities during wartime.”

Michael D. Ramsey, Textualism and War Powers, 69 U. Chi. L. Rev. 1543 (2002).

Arguing that, as originally understood, an armed attack creating a state of war was itself a declaration of war—and that “this provides a textual basis for the common assertion that Congress’s constitutional power ‘to declare War’ broadly encompasses the power to initiate warfare.”

Michael Stokes Paulsen, Youngstown Goes to War, 19 Const. Comment. 215 (2002).

Arguing that neither those who claim “plenary, unilateral presidential war power” nor those who “claim entire congressional power over the President in matters of national defense and the use of military force” find support in the Constitution.

Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 Yale L.J. 231 (2001).

Arguing that “the President’s executive power over foreign affairs is limited by specific allocations of foreign affairs power to other entities—such as the allocation of the power to declare war to Congress.”

Louis Fisher, Unchecked Presidential Wars, 148 U. Pa. L. Rev. 1637 (2000).

Rejecting the British model of executive war power and arguing that the power to repel attacks does not embrace a power to engage in affirmative, offensive warfare.

John C. Yoo, Clio at War: The Misuse of History in the War Powers Debate, 70 U. Colo. L. Rev. 1169 (1999).

Surveying scholarship and criticizing historical methodology in other work on the Declare War Clause.

William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 Cornell L. Rev. 695 (1997).

Arguing that Congress was entrusted with the declare war power because a president’s “desire for fame might lead him into war even when war was not in the national interest,” and that “the Founders denied the President a veto over congressional decisions to wage war, something that all scholars have missed.”

John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167 (1996).

Arguing for robust presidential war power and contending that “Congress was given a role in war-making decisions not by the Declare War Clause, but by its powers over funding and impeachment.”

Philip Bobbitt, War Powers: An Essay on John Hart Ely’s War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath, 92 Mich. L. Rev. 1364 (1994).

Arguing that declarations of war are not conditions precedent to the making of war, as declarations come only after states of war begin.

Raoul Berger, War-Making by the President, 121 U. Pa. L. Rev. 29 (1972).

Explaining the circumstances that led the Framers to vest virtually all war-making powers in Congress and leave the President only the power “to repel sudden attacks.”

Charles A. Lofgrent, War-Making Under the Constitution: The Original Understanding, 81 Yale L.J. 672 (1972).

Arguing that the Declare War Clause was originally understood as a power to commence war, whether it was officially declared or not.