Constitution of the United States

The founding document of the United States, which enumerates the powers mandated to the three branches of the federal government. To determine matters of national security, the Constitution delegates authority primarily to the legislative and executive branches. However, a close examination of the written document reveals much ambiguity, requiring some powers to be implied where the text is vague or silent.

Congress versus the President

A first review of the text of the Constitution suggests that the power to address issues concerning national security is very much in favor of the legislative branch. For example, Article I empowers Congress to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Congress is also mandated to support an army, provide a navy, and supervise the militia, which it may call on “to execute the Laws of the Union, suppress Insurrections and repel Invasions.” To implement security laws, Congress is further authorized to “make all Laws which shall be necessary and proper” to execute the powers it has been granted under the Constitution.

In contrast, Article II of the Constitution grants the president more modest powers. The most authoritative duty afforded the president is the designation of commander in chief of the armed forces. However, the president may command the armed forces only when “called into the actual Service of the United States.” He also may be allocated further national security powers when mandated to “take Care that the Laws be faithfully executed.” The president shares the authority to enter into treaties and receive ambassadors and ministers with the legislative branch.

Despite the apparent dominance of the legislature in the text of the Constitution, the modest powers granted to the president subsequently have been construed more broadly to accord the president more authority over matters of national security. The president's veto power and mandate to make recommendations to Congress “as he shall judge necessary and expedient” confer on him national security policymaking authority. As commander in chief, the president is also implicitly delegated all military powers not reserved by Congress. Moreover, the “take care” clause allows the president to respond to emergencies independent of the legislature and use the funds that he would otherwise be required to appropriate from Congress.

Even though the most obvious delegation of national security power—the authority to declare war—is textually assigned to Congress, the vague definition of what constitutes war and how war is declared has left the door open for multiple interpretations. Should small, limited skirmishes be considered [Page 160]war? How many troops need to be committed and for how long before an armed conflict is considered a war? Must Congress formally declare war? Or may a declaration be implied when funds are appropriated toward an armed conflict? The Constitution is also vague about which branch has the authority to end an armed conflict or sign a peace agreement. Thus, even though a two-thirds majority in the Senate is required when entering into a treaty, there is no indication that the Senate's consent is required to sign a peace treaty.

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