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;* Congressional Research Service
Informing the legislative debate since 1914Updated November 13, 2018
Defense Primer: Legal Authorities for the Use of Military ForcesBy the Framers' apparent design, in order to keep the
nation's "purse" and the "sword" in separate hands and in
other ways hinder its embroilment in unnecessary wars, the
Constitution divides war powers between Congress and the
President. Congress is empowered to declare war, provide
for and regulate the Armed Forces, and issue letters of
marque and reprisal, as well as to call forth the militia to
suppress an insurrection, repel an invasion, or "execute the
Laws of the Union." The President, as the Commander in
Chief, has the responsibility to direct the Armed Forces as
they conduct hostilities, put down insurrections, or execute
the law when constitutionally authorized to do so.
But the extent to which the President has independent
authority under the Constitution, without explicit statutory
support, to use the military for purposes other than to repel
a sudden attack is the subject of long-standing debate. At
the same time, efforts in Congress to exercise its
constitutional war powers in some way that is perceived to
constrain military operations have met with objections that
the constitutional separation of powers is imperiled.
Overview
Congress has enacted 11 separate formal declarations of
war against foreign nations in five different wars, each time
preceded by a presidential request either in writing or in
person before a joint session of Congress.
Congress has also enacted authorizations for the use of
force rather than formal declarations of war. Such measures
have generally authorized military force against either a
named country or unnamed hostile nations in a given
region. In most cases, the President has requested the
authority, but Congress has sometimes given the President
less than what he requested. Congress has also authorized
the President to use the military forces or the militia
domestically to put down insurrections or execute civilian
law when certain criteria are met. A CRS survey of
statutory authorizations to use the military forces for
foreign or domestic purposes-not including formal
declarations of war-revealed some 70 such statutes, a
number of which continue in force.
As for the use of such authority, another CRS survey,
covering U.S. uses of force abroad, lists hundreds of
instances, noting they reflect varying degrees of intensity
and longevity. It notes that most major uses of military
force abroad-of the type that might be classified as wars
or armed conflicts under international law-have been
authorized by Congress. The end of World War II appears
to have heralded a change in this regard. President Truman
sent troops to defend South Korea in 1950 under his own
authority and a UN Security Council resolution, but without
specific authority from Congress.War Powers Resolution
Concern that too much of the war powers had accreted to
the President while Congress's own authority had eroded
led to the 1973 enactment of the War Powers Resolution
(WPR; P.L. 93-148) over President Nixon's veto. The WPR
asserts that the President has the authority to commit U.S.
troops to hostilities in only three sets of circumstances.
WPR Section 2(c) provides that the President's
powers to introduce U.S. Armed Forces into
situations of hostilities or imminent hostilities are
exercised only pursuant to-
(I) a declaration of war,
(2) specific statutory authorization, or
(3) a national emergency created by attack upon the
United States, its territories or possessions, or its
Armed Forces.
The WPR also attempts to circumscribe implied sources of
authority.
WPR Section 8 provides that the authority to
introduce Armed Forces is not to be inferred from
any provision of law or treaty unless such law, or
legislation implementing such treaty-
(a) specifically authorizes the introduction of Armed
Forces into hostilities or potential hostilities, and
(b) states that it is intended to constitute specific
statutory authorization within the meaning of the
WPR.
Presidents have taken a broader view of the Commander-in-
Chief power to use military force abroad. They have
variously asserted as sources of authority United Nations or
NATO decisions involving military intervention,
appropriations measures, and other statutes that do not
specifically cite the WPR. Additionally, they have relied on
the Commander-in-Chief power itself and the President's
foreign affairs authority under Article II of the Constitution.
The executive branch has also occasionally attached
significance to the failure of Congress to pass measures
introduced to prevent or end military operations overseas. Itwww.crs.gov 17-5700
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Elsea, Jennifer K. Defense Primer: Legal Authorities for the Use of Military Forces, report, November 13, 2018; Washington D.C.. (https://digital.library.unt.edu/ark:/67531/metadc1442981/m1/1/: accessed May 29, 2024), University of North Texas Libraries, UNT Digital Library, https://digital.library.unt.edu; crediting UNT Libraries Government Documents Department.