"[2] Some in Congress wondered if that was actually so, including Abraham Lincoln, who wrote in a letter to his law partner:Let me first state what I understand to be your position.
[7] American presidents have often not sought formal declarations of war but instead maintained that they have constitutional authority (Article II, Section 2) as commander-in chief-to use the military for "police actions".
Some debate continues as to their appropriateness as well as the tendency of the executive branch to engage in the origination of such a push, its marketing, and even propagandizing or related activities to generate such support.
In light of the speculation concerning the Gulf of Tonkin Incident and the possible abuse of the authorization that followed, Congress in 1973 passed the War Powers Resolution, which requires the President to obtain either a declaration of war or a resolution authorizing the use of force from Congress within 60 days of initiating hostilities with a full disclosure of facts in the process.
Some legal scholars maintain that offensive, non-police military actions, while a quorum can still be convened (see Continuity of government), taken without a formal congressional declaration of war is unconstitutional since no amendment has changed the original intent to make the War Powers Resolution legally binding.
In the absence of a determination by the Supreme Court, the principle of separation of powers produces a stalemate on the issue.
Pierce Butler of South Carolina was the only delegate to the Philadelphia Convention who suggested giving the executive the power to take offensive military action.
Elbridge Gerry, a delegate from Massachusetts, summed up the majority viewpoint saying he "never expected to hear in a republic a motion to empower the Executive alone to declare war."