"David J. Barron, Waging War: The Clash Between Presidents and Congress, 1776 to ISIS (Simon & Schuster, 2016)." In this 560-page book, reviewed for the March 2017 issue of The Federal Lawyer, I note that Barron acknowledges that the Framers "feared an executive with too much power over war" and "leaned hard in Congress's favor when it came to making the crucial decision between war and peace." He also explains that when President Truman went to war against North Korea in 1950, he did follow the practice of previous Presidents who sought either a declaration of war or statutory authority from Congress. Instead, he merely received "the blessing of the United Nations." Presidents Clinton and Obama also used the U.N. Security Council to bypass Congress.
"Presidential Wars: A New Legal Challenge," National Law Journal, September 12, 2016. In a lawsuit filed on May 4, 2016, Captain Nathan Michael Smith charged that President Obama has engaged in an unlawful war against the Islamic State because he did not receive express approval from Congress. The case raises questions about the pattern of Presidents from Harry Truman to the present time initiating war without seeking and obtaining statutory authority from the legislative branch.
"Litigating the War Power with Campbell v. Clinton," 30 Pres. Stud. Q. 564 (2000). For much of its history, federal courts served the traditional role of providing an independent check on presidential war power. During the past century, however, judges have invoked a number of doctrines to avoid these cases: standing, mootness, ripeness, political questions, and prudential considerations. This article focuses on Congressman Tom Campbell's challenge to President Bill Clinton's war in Yugoslavia, a case that failed on a combination of standing and political questions.
"How Should We Fund the War Against the Islamic State," Roll Call, December 17, 2014. Paying for U.S. military operations against the Islamic State raises three primary constitutional issues: (1) the degree to which American taxpayers should cover the cost, (2) whether foreign contributions should go directly to the Defense Department or the Treasury Department, to be later appropriated by Congress, and (3) whether legislative decisions should be made by the entire Congress or through certain committees that monitor agency decisions to reprogram and transfer money within or between appropriations accounts.
"Speak Plainly: This is War!," CNS News commentary, September 11, 2014. During an evening address to the nation on September 10, 2014, President Obama explained his plans for taking military action against ISIS, the Islamic State in Iraq and Syria. Although welcoming congressional support, he argued that he had independent authority under the Constitution to conduct military operations that might last several years and even into the next administration. Given his military initiatives against Libya in 2011 and the damage done to that country and to North Africa, his track record of estimating the scope and effect of military operations is not reassuring. Also, his administration played legal word games on whether his actions constituted "war" or "hostilities."
"Don't invite more presidential wars," The Hill, April 14, 2014. A bill introduced in 2014 by Senator Tim Kaine, S. 1939, would repeal the War Powers Resolution and create a procedure that allows for rapid responses to emerging threats. The bill would make matters worse by vesting substantial authority in a 20-person legislative committee, weakening the role of 515 other members of Congress, authorizing greater secrecy, putting a premium on speed, and thereby enhancing presidential power. The decision to go to war requires full, informed debate within Congress and the nation, not impulsive, imprudent, and ill-considered military initiatives.
"Basic Principles of the War Power," 5 J. Nat'l Security Law & Policy 319 (2012). Congressional control over the use of military force, whether overt or covert, is fundamental to self-government and popular sovereignty. Regardless of the type of crises that may arise, Congress alone possesses the constitutional authority to decide to take the country from a state of peace to a state of war. Any shift of that authority to a President who claims "inherent" power, or efforts to replace Congress by allowing the U.N. Security Council or NATO countries to "authorize" offensive actions, is both a threat and a violation of democratic and constitutional government.
"John Yoo and the Republic," 41 Pres. Stud. Q. 177 (2011). In his private writings and legal memos for the Justice Department, John Yoo is well known for promoting broad and even exclusive presidential power over national security. Less understood is his dependence on the British model that extended to the king plenary power over war and external affairs. Yoo devotes little attention to the framers' rejection of British executive prerogatives and to their commitment to checks and balances and to a republic that vests sovereign power not in an executive but in the people and their elected representatives.
“To War or Not to War: That is Still the Question for Congress, not the President,” Legal Times, March 10, 2008, pp. 44-45. During the 2008 presidential election, candidates spoke deferentially about popular control. They said the election was not about them but about the voters, and that change had to come from the bottom rather than the top. Yet when the subject turned to the President’s power as commander in chief they switched course and claimed unilateral power to make military commitments. The record is clear that the framers placed in Congress (the people’s representatives) the decision to send the nation to war and deliberately rejected the available monarchical models that vested all powers of war and foreign relations in the Executive.
“Domestic Commander in Chief: Early Checks by Other Branches,” 29 Cardozo L. Rev. 961 (2008). This article looks to the early years of the republic to understand the scope, purpose, and boundaries of the Commander in Chief Clause. The framers viewed the Clause within the context of republican government where ultimate power is placed not in a single executive but with the people and their elected representatives. Covered within this article is the distinction between offensive and defensive wars, military actions against Indians, the militia act of 1792, the Neutrality Proclamation of 1793, the Whiskey Rebellion of 1794, the Alien and Sedition Acts of 1798, and judicial rulings from 1800 to 1806.
Statement before the Senate Committee on the Judiciary, “Exercising Congress’s Constitutional Power to End a War,” January 30, 2007. This testimony explains the democratic principles that guided the framers, their rejection of monarchical power, the distinction between offensive and defensive military actions, separation of purse and sword, scope of the Commander in Chief Clause, the Constitution in practice, and contemporary statutory restrictions, including the cutoff of funds in 1973 to end the Vietnam War, prohibitions on CIA paramilitary activities in Angola, limitations imposed on assistance to the Contras in Nicaragua leading to the Iran-Contra scandal in 1987, authority for the Gulf War in 1991, and statutory requirements to withdraw U.S. troops from Somalia by March 31, 1994.
“Lost Constitutional Moorings: Recovering the War Power,” 81 Ind. L. Rev. 1199 (2006). For the past half century, Presidents have claimed constitutional authority to take the country from a state of peace to a state of war against another nation. That was precisely the power the framers denied to the President and vested exclusively in Congress. That allocation of power was understood by all three branches until President Harry Truman went to war against North Korea in 1950. He never came to Congress for authority before he acted or at any time thereafter. The persistence of presidential wars does severe damage to the U.S. constitutional system, separation of powers, checks and balances, and the principle of self-government.
“Scholarly Support for Presidential Wars,” 35 Pres. Stud. Q. 590 (2005). For the past half-century, political scientists, law professors, and historians have promoted a greatly strengthened presidency, including authority to take the country to war without a declaration or authorization from Congress. In justifying this shift of power, scholars have given little thought to legal boundaries and constitutional principles, including checks and balances and the system of separate powers. Students in high school, college, and law schools need a more balanced and constitutional instruction on the presidency. Those who speak to the public have a duty to explain (and understand) basic principles and the rule of law.
“Judicial Review of the War Power,” 35 Pres. Stud. Q. 590 (2005). It is often said that federal courts regard themselves as without authority or competence to adjudicate matters of the war power, preferring to defer to actions taken by the elected branches. However, ever since the Supreme Court in 1800 first accepted and decided a case involving the use of military force, federal courts have been active in monitoring the war power, at times upholding the judgments of the President and on other occasions striking them down. Of special interest are cases where the President acts contrary to statutory authority.
“Deciding on War Against Iraq: Institutional Failures,” 118 Pol. Sci. Q. 389 (2003). This article analyzes the performance of U.S. political institutions in passing the Iraq Resolution of October 2002. It concludes that the Bush administration failed to provide reliable information to Congress to justify the war and relied on tenuous, unsubstantiated claims that were regularly discredited. Also, Congress failed in its institutional duties, both by voting on the Iraq Resolution without sufficient evidence and by drafting the resolution in such a way that it left the power to initiate war in the hands of the President, exactly what the framers had tried to prevent.
“Sidestepping Congress: Presidents Acting Under the UN and NATO,” 47 Case Western Res. L. Rev. 1237 (1997). From 1950 forward, Presidents began to seek authority not from Congress but from international and regional institutions, especially the United Nations Security Council and NATO countries. Following this course of action were Harry Truman, George H. W. Bush, and Bill Clinton. The framers insisted that Presidents seek authority from both Houses of Congress before initiating war. That constitutional requirement is not satisfied when Presidents rely on outside organizations for "authority" that must come directly from the elected representatives of Congress.
“The Korean War: On What Legal Basis Did Truman Act?,” 89 Am. J. Int’l L. 21 (1995). President Truman was the first President to initiate a major war without first coming to Congress for either a declaration or an authorization. Instead, in June 1950 he sought “authority” from the UN Security Council to act militarily against North Korea. His action was contrary to the Constitution, the UN Charter, the UN Participation Act of 1945, and his own pledge as President when he cabled the Senate from Potsdam while Senators debated the UN Charter and the use of military force against aggressors.
"The Barbary Wars: Legal Precedent for Invading Haiti?," CRS Report, August 16, 1994. Advocates of independent presidential power to use military force against other nations often cite the example of President Jefferson acting against the Barbary powers. He sent a squadron of frigates to the Mediterranean to protect against attacks by the Pasha of Tripoli, but reported to Congress on December 8, 1801 that he was "[u]nauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense . . . ." It was up to Congress to authorize "measures of offense also." Congress passed ten statutes authorizing Jefferson and his successor, James Madison, to use military force against the Barbary powers.