Since the Constitution’s ratification in 1789, the power to go to war has steadily shifted toward the President. In the 21st century, the President is far more powerful than George Washington was at the start of the constitutional journey and is more empowered to commit the US armed forces to unnecessary, even dangerous, wars with foreign nations. Unfortunately, the presidential power to start wars is extremely difficult to reverse without significant changes to the structure of the presidency, a Herculean task that would require constitutional amendments.

The Constitution is clear: “The Congress shall have Power To declare War.” Article I assigns the decision to go to war to a pluralistic body of elected representatives and senators from both houses, as it is the most consequential decision the nation can make—the use of its armed forces, which both inflicts and invites the destruction of cities, infrastructure, people, and their means of livelihood. This power has become even more critical because the US armed forces are the most powerful in the world and are equipped with the most lethal weapons, including weapons of mass destruction. And the enemies are no less lethal.

Despite constitutional clarity on the declaration of war, the lived reality of the modern United States tells a different story. In practice, the decision to initiate war does not emanate from collective Congressional judgment but from the President’s singular discretion. The constitutional text on matters of war remains intact, but its practical application, reinforced by laws, favors the Executive. As a result, the system, with much at stake, relies heavily on presidential judgment.

This commentary proposes a Congressional War Committee, a joint committee of both houses, to restore Congress’s constitutional power to declare war.  However, it first explains that in matters of war, the divergence between constitutional design and practice is neither accidental nor abrupt. It is the cumulative result of an increasingly assertive presidency, historical practice, congressional delegation of war powers to the President, judicial deference, and a sustained institutional preference for executive primacy. What emerges is a system in which Congress has gradually ceded its powers to the President, who, if erratic or willful, can expose the world and the nation to strategic and humanitarian harm.

Constitutional Allocation of War Powers

The constitutional allocation of war powers between Congress and the Executive reflects a deliberate balance. The framers wanted “a President,” strong and decisive, and made him powerful enough to have a cabinet without being bound by its decisions. Yet they distrusted concentrating authority in the hands of any one individual in matters of war. Having rebelled against a monarchy that had immense war powers, they vested the power to declare war in the pluralistic will of a large, elected body, Congress, currently 535 members.

Composed of representatives from across the states, Congress is expected to deliberate, debate, and decide collectively, not by consensus but by a majority, whether going to war with a particular country is good for the nation. War would not be the act of a single individual, such as a monarch, king, or President, but the considered judgment of the nation’s legislature.

At the same time, the framers designated the President as Commander in Chief. This role is meant to ensure unity and decisiveness in the conduct of war once authorized. The distinction is clear: Congress decides whether to go to war; the President decides how to fight it. Furthermore, the declaration of war precedes the actual war. The separation and temporal sequence between the decision and its execution were both rational and functional.

Over time, however, the original allocation of war powers has been gradually abandoned. The modern President does not merely conduct war; he alone initiates it. This shift rests on several interlocking developments explained below.

Assertive Presidency

As the nation’s sole Chief Executive and the sole organ in foreign policy, the President became increasingly assertive in international relations, including warfare. Presidents have exploited the Constitution’s text to claim ever more authority. The Constitution does not define the scope of the Commander-in-Chief power. In many constitutional systems, the title is ceremonial. In the United States, Presidents have interpreted it substantively, asserting authority to deploy military force without prior congressional approval. This interpretation is neither explicitly endorsed by the constitutional design nor fully validated by the courts, yet it has become embedded in practice.

The President also benefits from the fact that the nature of warfare has changed. The argument of modernity and technological push-button warfare demands that no time be wasted on deliberation, and that a quick response will guarantee survival, thereby favoring a flexible and responsive Executive. This logic is persuasive in cases of immediate self-defense. However, it has gradually expanded beyond emergencies to conduct broader military engagements, including sustained operations far removed from any imminent threat.

Historical practice has also normalized presidential war initiatives. Since World War II, the United States has engaged in numerous military actions without formal declarations of war. Congress has issued 11 formal declarations of war, covering 5 wars, and has not issued one since 1942. Military actions in Korea, Vietnam, Iraq, Afghanistan, and Libya, as well as strikes in Iran, have been conducted without a prior declaration of war, though sometimes under retrospective statutory authorizations.

Driven by a host of practical needs, an assertive presidency has established a precedent-based decision-making order in which practice shapes meaning and the use of armed force precedes Congressional authorization. The President’s repeated exercise of war-initiation powers, coupled with congressional inaction, acquiescence, or authorization, has transformed the constitutional allocation of war powers and is further supported by Congress’s practice of delegating its own war-related powers to the President.

Congressional Delegation

The constitutional doctrine that Congress can delegate its powers over international matters was a massive shift in the balance of power, strengthening the presidency to the point that reversal is difficult. Congress has facilitated this shift through delegation. Rather than issuing formal declarations of war, Congress has increasingly relied on statutory authorizations.

These authorizations often grant the President broad discretion to determine the scope, duration, and targets of military action. The post-9/11 Authorization for the Use of Military Force (AUMF) is the most striking example. By permitting “all necessary and appropriate force” against vaguely defined enemies, Congress effectively transferred its authority to initiate war to the President.

Delegation compounds presidential power because it overlaps with the President’s inherent authority as Commander in Chief. When Congress delegates, and the President claims his constitutional authority in the same legal space, the two sources of authority reinforce each other. The result is not shared power but concentrated power in the Executive.

The post-Vietnam War Powers Resolution of 1973, intended to restrain presidential unilateralism, has had the opposite effect. The Resolution requires the President to report to Congress within 48 hours of introducing armed forces into hostilities and to terminate such use within 60 to 90 days unless Congress authorizes it. On its face, this appears to limit presidential power. In practice, it acknowledges and legitimizes the President’s unilateral authority to initiate hostilities.

Presidents have complied with the reporting requirement while disputing the Resolution’s constitutionality, reducing it to a procedural formality. The 60–90-day window, intended as a constraint, has been interpreted as implicit permission to wage short-term wars. Thus, a statute designed to reassert congressional authority has instead entrenched Executive war initiatives.

Congress’s most potent tool is indeed the power of the purse, as the President needs resources to fight the war he starts. Here, there is a problem of temporality. Congress can cut funding for military operations, but only after those operations have begun. By then, facts on the ground are set, political stakes are high, and withdrawal is difficult.

The power of the purse sounds decisive, but it is ineffective in practice. The problem is magnified by the asymmetry between action and reaction. The President can act swiftly and unilaterally; Congress must respond slowly and collectively. The more consequential a war the President begins, the less power Congress will have to use its purse strings to end it.

Moreover, Congress’s political incentives reinforce passivity by delegating war powers to the President. Members of Congress may prefer to avoid responsibility for controversial military decisions. By allowing the President to act, they retain the ability to support or criticize the outcome without bearing the initial burden of decision-making. These dynamics turn constitutional duty into political convenience. Congress may still cut funding when a war is highly unpopular, though that may take years, as was the case in the Vietnam War.

The delegation of war powers from Congress to the President has significant consequences for democratic accountability. A decision as grave as war, once entrusted to a deliberative body, is now often made by a single individual. The risks are evident. A President, acting on incomplete information, ideological conviction, or external influence, may commit the nation to conflict without meaningful legislative scrutiny.

Judicial Deference

The courts have upheld the delegation of powers to the President. The judiciary has largely abstained from adjudicating war powers disputes. Courts often invoke the political question doctrine, declining to decide issues involving foreign policy and military action, particularly in disputes between the Executive and Congress. Judicial neutrality, however, reinforces the practical powers of the Executive. When the constitutional tension between Congress and the President remains unresolved, it often empowers the President more than Congress.

More recently, the Supreme Court’s decision to grant the President absolute immunity for his official acts, presumably including decisions to start wars, shows that the Justices, guided by narrow formalism, did not fully consider the consequences of an unaccountable President. One could argue that even without absolute immunity, prosecuting a sitting or former President for starting an illegal war, however defined, would be difficult.

Still, the consolation that the President enjoys absolute immunity for his official acts boosts his confidence and may even invite erratic behavior. Hopefully, the Supreme Court will find a way to dilute its holding in a future case so that the Sword of Damocles of accountability is not completely removed and thrown away from above the President’s head, and the President continues to have, in Nassim Nicholas Taleb’s phrase, “skin in the game.”

Inadequate Accountability Mechanisms

One could point out that a willful president who engages in foolish armed conflicts can be impeached or not reelected. There is one major problem with such arguments. Impeachment, if it occurs, will follow the President’s initiation of an unnecessary or ill-advised war. So, impeachment is punitive rather than preventive.

Likewise, if a President is not reelected, that would also occur after he resorted to a preventable armed conflict in the first term. Of course, the reelection argument is unavailable if the President starts illegal wars in his second term. In all such cases, the solution is punitive and after the fact. We need a solution that would prevent a willful President from starting an unnecessary or dangerous war. A Congressional War Committee (CWC) is a possible solution, but it may face huge opposition from the President, if not from constitutional experts.

A Proposal for Congressional War Committee

Before proposing the idea of a Congressional War Committee, let me first briefly discuss the parliamentary system, such as that of the United Kingdom, where the Prime Minister, as the head of government, makes decisions on war and peace. However, the Prime Minister alone cannot make any such decision. All decisions are made in the cabinet, with at least a majority vote. The cabinet itself comprises elected members of Parliament. If a cabinet minister disagrees with a decision to go to war, they can voice their opposition within the cabinet. Cabinet proceedings are confidential.

After the cabinet decides, dissenters may resign; if they do not, they are obligated to publicly support the decision, even if they disagreed with it during the cabinet’s discussion. The hallmark of this procedure is that it demands a pluralistic decision, not one made by a single individual.

The Constitution allows the President to request written opinions from his cabinet, whom he selects with the advice and consent of the Senate, but he can fire them without such approval. Cabinet members are rarely elected officials, and if they are, they must resign from their elected office. Requiring parliamentary-style cabinet approval does not work in a presidential system, particularly in the United States.

To assert its war-declaration power, it would be more workable for Congress to require that the President consult the leaders of the House and Senate before taking military action. Such informal consultations take place, and many presidents may already have found this method advisable, as it takes some of the burden off the President’s shoulders.

However, relying on Congress’ war-declaration power, this commentary proposes a more formal body of elected Representatives and Senators, identified by both Houses, a joint committee, which may be called the Congressional War Committee. The members of the Committee may be elected by their respective Houses to lend it greater legitimacy. The Executive cannot be a voting member of the CWC to maintain the separation-of-powers structure.

The War Powers Resolution may be amended to require that the President be obligated to consult the CWC and that the Committee formally vote on any presidential war proposal. The Committee’s proceedings may be confidential.

Only if a majority, or even a two-thirds supermajority, of the Congressional War Committee votes in favor of a war proposal can the President initiate a war. This procedure will serve as an alternative to the reporting procedure in the War Powers Resolution. It not only respects Congress’s power to declare war but also preserves the President’s Commander-in-Chief powers. The procedure is relatively swift and can work even in wars of self-defense, let alone in wars of choice where there is no imminent threat of attack.

The CWC will not function properly if it lacks access to the same intelligence the President has. The proposed Committee is most useful in wars of choice, preventive wars, and humanitarian operations. The President may be allowed to bypass the Committee approval in cases of imminent attack. Still, returning to the Committee remains mandatory to verify the claim of imminence.

Admittedly, the Committee proposal may invite skepticism and may turn out to be unconstitutional, even though the idea of a joint committee is not new. The hard question is about the subject matter of the proposed joint committee. No existing institution, committee, or other body can impose binding, real-time constraints on presidential war initiation. The absence of such a mechanism is the central structural defect the proposal seeks to correct.

The CWC procedure may be challenged for its bold negation of presidential discretion. It may also be opposed on more familiar grounds, namely, whether the Committee should reflect the partisan numbers in both houses. For example, the Joint Economic Committee has 20 members, presently 12 Republicans and 8 Democrats. Going to war is a political act, and the argument goes that if Committee members vote along party lines, the majority party in Congress may be able to dictate to the President. However, this argument must fall because even the power to declare war is partisan, and the majority decides.

The main advantage of the CWC is that it prevents a single individual from making a momentous decision to go to war and, to a reasonable extent, restores Congress’s power under Article I to declare war, though the Committee cannot be a complete substitute for the full Congress. The CWC decision to authorize war will precede the use of armed force, just as a declaration of war does, thus upholding the temporal sequence provided by the Constitution.

Congress can debate the CWC proposal and may be able to fine-tune the Committee’s structure, size, and procedures to ensure it does not encroach on the President’s Article II powers. Congress can also set the level of threat that triggers the Committee vote in advance of the use of force.

This proposal is not merely a matter of constitutional fidelity. It is also a matter of democratic responsibility for Congress to reassume its role in making war decisions. Otherwise, leaving the initiation of war, regardless of its imminence, to the President’s sole authority is tantamount to a deliberate deviation from the Constitution.

Conclusion

The cumulative effect of the President’s practical dominance over the initiation of war is a constitutional inversion. The formal rule that Congress declares war has been replaced with the operational rule that the President initiates war. The shift is profound. It does not abolish congressional authority; it marginalizes it. War has become, in large measure, a presidential decision. The enduring tension between text and practice is a reminder that constitutional meaning is not self-executing. It must be maintained through continuous engagement by the institutions it governs.

The proposed Congressional War Committee restores Congress’s power to declare war, though not fully, without compromising the constitutional design that vests the President with the authority to execute an authorized war.  The Committee enables Congress to enforce funding constraints more effectively, transforming the power of the purse into a real check.

With the CWC in operation, the result is a system in which the most consequential decision—war—is made under conditions of shared deliberation as the constitutional design originally intended. The design sought to prevent a single individual from making war decisions, and the CWC would implement it in a way that the War Powers Resolution could not.

Ultimately, however, the allocation of war powers is structural and political. The Constitution provides the framework, but its operation depends on institutional behavior. When Congress yields, the President advances. When Congress asserts itself, the balance is restored. The CWC is a pragmatic, workable mechanism for achieving shared decision-making without a constitutional amendment.

Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on international law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments via email.