Restraining Presidential Warmaking

Here's an idea I had the other day. The problem is that, despite the fact that the constitution lodges the power to declare war in Congress, the President's status as commander-in-chief of the armed forces, combined with the existence of a standing army, enables the President to prosecute wars, particularly small ones, without orders to do so from Congress. At present, the only way to deal with this is impeachment: Congress would have to impeach the president to stop him from commanding the armed forces to commit acts of war.

An additional protection could be added. Congress could pass a bill, perhaps an addendum to the War Powers Act, perhaps something else, doing three things. First, it would explicitly reaffirm the Constitutional arrangement: Congress declares War, and any acts of war outside such a declaration is illegal. Secondly, it would approve and encourage the refusal of deployment and combat orders not sanctioned by Congress by military personnel, and declare that persons being court marshaled for refusing orders on these grounds have a right to have their case heard in a civilian court.