The term “war” is found at four locations in our Constitution. However, the word alone signals nothing about the powers of the two political branches the Constitution creates, executive and legislative, and nowhere in the Constitution does the term “war powers” appear. At some point in our history, the word “powers” was coupled with “war.” There has ensued a continuing argument about who, as between the President and Congress, owns those powers. But little or no attention has been given to just what powers are being discussed, and no attention at all has been given to what the Constitution itself says about those powers. Yet, a close examination of the Constitution readily reveals the answers. Congress owns all of the powers to create and field a military (no matter how the powers are defined), and the President has the executive authority. The involvement of the United States in multiple military conflicts, ultimately at the behest of the President and not the Congress, is evidence that currently both the executive and legislative branches operate contrary to the mandates of the Constitution. Thus, the notion of war powers must be reconsidered.
Herbert L. Fenster is an expert in Government Contract Law. He has extensive experience in the negotiation, interpretation, and litigation of contracts for major weapons systems, as well as the procurement of research and development.
Fenster holds degrees in architecture/civil engineering, history, and economics from the University of Pennsylvania, and is a graduate of the University of Virginia Law School. He is an author and lecturer on government and administrative law subjects and served as litigation counsel for the Reagan-Bush Campaign Committee and for the Grace Commission. Fenster is a director of the U.S. Chamber of Commerce National Chamber Litigation Center and a corporate and foundation director and trustee. He is also the General Counsel of the National Defense University Foundation.