Treaties and Wars

A lot in the media about treaties and wars these days.  How does our nation really enter into a treaty or declare a war? I was fortunate to look at these questions while a student at the National War College in 2014. The answers, like many things, are complicated. The following is an excerpt from one of my research papers where I assert the US has often applied “selective disobedience” for portions of the constitution, especially those regarding war powers and treaties.

As always, a quick disclaimer, the following excerpt is the opinion of a national security strategy student from nearly 10 years ago, not any official position by any stretch! I hope you’ll find a few interesting points…

Article I, Section 8 of the constitution which authorizes Congress the power to declare war is often overlooked. While Article II, which outlines the powers of the president, does not specifically prohibit the president from declaring war, by the letter, it only appoints he or she as commander in chief.  World War II is the last formerly declared war by Congress, but in the ensuing decades, tens of thousands of Americans died fighting executive branch ordered and legislative branch approved “military actions.” 

While many theories exist to explain this apparent disregard for the constitution on this important topic, one possible answer may lie in the memory of the Cold War.  During the nuclear standoff with the Soviet Union common wisdom dictated that a decision to go to war would potentially be made in minutes by the president.  Over time, Presidents naturally broadened this power by authorizing military actions to stop communist aggression in Korea and Vietnam as well as later military actions to combat terrorist in Afghanistan, Libya, Iraq, and Syria.  In most all of these actions, Congress approved the use of military force, but did so after troops were already committed. 

Although the War Powers Resolution of 1973 was meant to reign in executive ability to conduct undeclared wars it too was largely disregarded by the executive.  Today, the president’s ability to launch military operations faces continual debate but it is nevertheless an inherent part of our national security strategy.  

Another often liberally interpreted portion of the Constitution is that which governs entry into treaties.  Article II, Section 2 gives the president the power to enter into treaties with two thirds consent of the Senate and Article III requires a judicial constitutionality review for all treaties.  In practical application during most President’s foreign policy, the power to enter or enforce treaties is taken as a given.  Presidents have often used U.S. obligations to international treaties as powerful coercive levers. 

President Truman invoked the U.S. obligation to the UN charter as justification for military action in Korea.  Entry into foreign economic or defense treaties along with the president’s willingness to fulfill our obligations, remain a very significant portion of our national security strategy.  A president’s power to enter into a treaty that is justifiable in the national security interest of the nation is seldom questioned.

On the flip side of those sections of the constitution that are selectively disobeyed in the implementation of national security strategy are those that are followed to the letter.  Nowhere is this more apparent than in Article I, Section 8 which gives Congress power to control the nation’s purse strings through regulation of trade, taxes, and federal budget.  No matter how grand a president’s security strategy may be, if Congress chooses not to fund the means contained within the strategy it will not come to fruition. 

Similarly, if Congress chooses to sanction trade with a nation such as Cuba or Iran, they may introduce legislation to do so even if it counters the president’s foreign policy agenda.  Congress’ constitutionally mandated control of the purse is a huge element of the fundamental nature of U.S. national security and is used successfully by Congress as their tool to shape U.S. foreign policy.   This critical constitutional check on power often creates gridlock and draws criticism but still remains the best mechanism for ensuring that the representatives of the people maintain a voice regarding national security strategy.

 U.S. National Security Strategy is fundamentally shaped by a near simultaneous disregard and adherence to the Constitution as exemplified by how the U.S. currently interprets the power to declare war, enter into treaties, and control the U.S. purse.  The evolution of how the Constitution informs national security strategy is uniquely American.  It is also another testament to the genius of our founding fathers who could not imagine the security threats we face today but crafted a guiding document with enough ambiguity that enables American leadership to bring to bear all instruments of our nation’s power. 

I suspect I wasn’t the first student at the National War College to ponder this topic and certainly won’t be the last. This week’s featured pic is President Nixon signing the Anti-Ballistic Missile Treaty with the Soviet Union in 1972 which President George W. Bush withdrew from in 2001 to pave the way for our current missile defense system. How does our nation enter into treaties and declare wars? Definitely a complex question with a myriad of answers. 

The views, opinions and biases expressed in this blog are the authors and do not reflect those of the U.S. Army or Department of Defense.

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