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1

Last Page

140

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Article

Abstract

The Constitution gives Congress the power “to declare War.” The meaning of that grant of power is much debated, but its converse is much neglected: To whom does the Constitution assign the power to declare peace? This Article comprehensively examines the Constitution’s various assignments of the power(s) to make peace—constitutional powers to end, as a practical matter and as a binding legal matter, a prior legal condition of war. Both the President and Congress possess several such powers. The President has the power, with the advice and consent of two-thirds of the Senate, to make treaties, including peace treaties that legally supersede and extinguish a prior congressional declaration of war or its equivalent. The President also has the power to make unilateral “executive agreements” of peace with an enemy nation or power, pursuant to the general Article II executive power of the President over foreign affairs. Such sole-executive agreements, however, do not override or extinguish Congress’s declarations of war or authorizations of force and do not bind the actions of future Presidents. Finally, the President, as military Commander in Chief, possesses plenary power to end war as a practical matter simply by making the unilateral military decision to cease fighting (or, for that matter, not to fight an authorized war in the first place). The sum of these several powers yields in the President of the United States a near-plenary power to declare peace, at least as a functional matter, during that President’s time in office. Congress has a functional power to declare peace by not declaring war (or otherwise authorizing force) in the first place. Congress likewise has the power to declare peace by repealing or rescinding a prior authorization of war. (Both powers are of course subject to practical and political constraints.) In addition, Congress’s appropriations power is a formidable limitation on the war power. It affords Congress broad practical power to establish peace by refusing to provide appropriations for war or by conditioning such appropriations in a way that functionally ends a war. A funding limitation, however, does not (necessarily) repeal a prior war declaration: If Congress reopens the purse, the President can pick back up the sword. Consideration of the Constitution’s peace powers provides a useful, “backdoor” perspective on the Constitution’s allocation of war powers and helps buttress the proper conclusions as to the meaning and interaction of Congress’s power “to declare War” and the President’s power as “Commander in Chief” of the nation’s military.

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