“At my discretion, the United States military eliminated the world’s top terrorist, Qasem Soleimani.”
President Donald J. Trump, Televised Speech to the Nation, January 8, 2020
What are the constitutional limits on the President’s discretion to wage war? Like so many things in James Madison’s mad architecture, the text of the constitution points in different directions.
Article I, Section 8 clearly assigns to Congress the power to “declare war.” But Article II, Section 2 makes the President the “Commander in Chief of the army and navy of the United States.” This diffusion and the resulting potential for dysfunction are by design. America’s founders, with their identities and bases of political power rooted in the various states, only reluctantly conceded the need for a federal union and only jealously ceded to the new federation any of the states’ traditional powers. Despite the victory over Great Britain, the ravages of the Revolutionary War were fresh in the founders’ minds. They were especially hesitant to grant to the new federal government the capacity to wage war.