18 e lusive v ictories
Weakened Constraints on Presidential War-Making. Th e demise of the
classical legal step for going to war has nullifi ed a key tool at the dis-
posal of Congress to block presidential war-making. Th e formal decla-
ration of war has become a constitutional anachronism. Since the
United States last formally declared war on an adversary in 1941, the
nation has found itself in major confl icts in Korea, Vietnam, the Persian
Gulf, Iraq, and Afghanistan. To legitimize military intervention, a
president can draw upon extra-constitutional legal authority, including
the UN Charter and security treaties that bind the United States to
fi ght on behalf of other countries.
Although Congress occasionally has sought to reclaim the power to
decide matters of war and peace, presidents have deftly sidestepped
such legislative inhibition. Indeed, they even have turned the principle
of legislative authorization for military action against its architects. Th e
War Powers Resolution, passed over President Nixon’s veto in 1973, was
intended to restore a measure of congressional control. Yet the statute
has failed to give Congress a real voice when presidents decide to
commit troops. Chief executives have deemed it politically prudent to
seek Congress’s endorsement before commencing large-scale military
operations but timed their requests strategically, seeking a vote either
just prior to hostilities (the 1991 Gulf War) or on the eve of an election
(in late October 2002, to authorize the use of force against Iraq).
Th e judiciary has infl uenced the exercise of presidential war powers
only at the margins. Th e Supreme Court has helped legitimize broad
presidential authority in foreign aff airs that exceeds any literal reading
of the Constitution. In 1936, for example, the Court considered a case
arising from an action by Franklin Roosevelt to bar arm sales to Bolivia
during a confl ict in which the United States was neutral. Going beyond
the issue before it (whether the president had exceeded his authority
under existing law), the court declared the president to be the sole
organ of the nation in foreign policy. Given that the Constitution
explicitly grants Congress power over commerce with foreign nations
and splits authority over treaties between the president and the Senate,
the decision represented an extraordinary affi rmation of executive dis-
cretion. High court decisions bolstered Lincoln’s exercise of broad pre-
rogative powers during the Civil War, Wilson’s suppression of dissent
during World War I, and FDR’s internment of Japanese Americans