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ARTICLE
WAR POWERS PURSUANT TO FALSE
PERCEPTIONS AND ASYMMETRIC
INFORMATION IN THE “ZONE OF
TWILIGHT”
ROBERT BEJESKY*
I. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
II. The Constitution, Core Principles, and Justice Jackson’s Test . . . . . 9
A. Separation of Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. Separation of War Powers and the Youngstown Formulation . . 11
1. Framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2. Power Sharing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
III. War Powers As a Progression of Decisions: An Original
Understanding Accordant with Justice Jackson’s First and
Third Prongs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
B. Establishing and Governing the Military . . . . . . . . . . . . . . . . . 15
C. Authorizing Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
D. Congressionally-Parameterizing Executive Action Versus
Commander in Chief Discretion During an Authorized
Military Confrontation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1. Framers’ General Statements . . . . . . . . . . . . . . . . . . . . . . . 23
* M.A. Political Science (Michigan), M.A. Applied Economics (Michigan), LL.M. International Law
(Georgetown). The author has taught international law courses for Cooley Law School and the
Department of Political Science at the University of Michigan, American government and
constitutional law courses for Alma College, and business law courses at Central Michigan University
and the University of Miami.
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2. Rationale for Having a Single Military Commander . . . . . 23
3. Self-Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
E. Partial or Full Hostilities and Congressional Parameters on
Military Command . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. Congressional Ability to Set Parameters, Including
Partial Hostilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
2. The President Has No Preclusive Power to Initiate
Offensive Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3. Congress Can Circumscribe, but Cannot Interfere,
with the Direction of Military Forces During Combat . . . 33
4. Seizure Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
5. Detention and Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
6. Interpreting Post-Authorization Involvement from
Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
F. Power of the Purse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
IV. Forming the “Zone of Twilight”: Justice Jackson’s Second
Prong . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
A. Relative Debates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
B. Defining War, Conflict, and Peace . . . . . . . . . . . . . . . . . . . . . . 44
1. Framer Intent for War and Lesser Hostilities . . . . . . . . . . 44
2. International Law’s Influence on the Semantics of
“War” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
C. Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
1. The Spokesperson Publicizes Reasons to Use Force . . . . . 51
2. Intelligence Information . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
3. Congressional Investigations . . . . . . . . . . . . . . . . . . . . . . . 57
D. Expansion of the Administrative State . . . . . . . . . . . . . . . . . . 60
E. Jurisprudential Guidance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
F. Legal Advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
1. Legal Counsel Generally and Their Obligation to Be
Objective. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
2. Pressure, Politicization, or Zealous Advocate? . . . . . . . . . 70
3. Legal Objectivity, Not Zealotry . . . . . . . . . . . . . . . . . . . . . 76
G. Examples of Legal Advice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
1. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
2. Original Intent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
a. The Articles of Confederation . . . . . . . . . . . . . . . . . . . 77
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b. The Declare War Clause . . . . . . . . . . . . . . . . . . . . . . . . 78
c. Interpretation of the Authorization for the Use of
Military Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
d. Informational Basis and Secrecy. . . . . . . . . . . . . . . . . . 84
e. Conclusions on Framer Intent . . . . . . . . . . . . . . . . . . . 85
3. Power of the Judiciary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
4. The Debate Surrounding Signing Statements . . . . . . . . . . 89
V. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
I. INTRODUCTION
Recent United States Presidents executed controversial military actions.
The George W. Bush Administration used unilateralism in foreign policy,1
neglected congressional participation in actions that required legislative
approval under constitutional war powers,2 and systematically utilized the
Commander in Chief’s authority to exercise broad discretion in the use of
force.3 Professor Jules Lobel contended the Bush Administration took
the progressive stripping of war powers to an entirely new level, writing
that it “[was] not supported by the Constitution, history, or logic.”4
1. See David M. Malone & Yuen Foong Khong, A Decade of U.S. Unilateralism?, in
UNILATERALISM AND U.S. FOREIGN POLICY 31–33 (2004) (discussing the pre-9/11 Bush
Administration’s foreign policy choices as “hostile to a treaty-based system of international relations”
and widely viewed as a policy of unilateralism).
2. See CHARLIE SAVAGE, TAKEOVER: THE RETURN OF THE IMPERIAL PRESIDENCY AND THE
SUBVERSION OF AMERICAN DEMOCRACY 122 (2007) (“Congress may have thought it was granting
the [P]resident limited wartime powers after 9/11, but the Bush-Cheney [A]dministration decided in
secret that it wielded unlimited wartime powers.”).
3. See Michael P. Allen, George W. Bush and the Nature of Executive Authority: The Role of Courts in a
Time of Constitutional Change, 72 BROOK. L. REV. 871, 871 (2007) (“It is no secret that the
administration of President George W. Bush has consistently asserted a breathtakingly broad view of
the scope of executive authority under Article II of the United States Constitution.”); Harold Hongju
Koh, Setting the World Right, 115 YALE L.J. 2350, 2350 (2006) (“[T]he Bush Administration and its
supporters have pressed for a revamped constitutional and international vision that champions the
supremacy of both executive and American unilateralism.”); id. at 2353 (”[T]he adventures in
Afghanistan and Iraq exemplify a policy of force first . . . [and justify] an international law theory of
preemptive self-defense and fear of access to weapons of mass destruction.”).; Brian Logan Beirne,
Note, George vs. George vs. George: Commander-in-Chief Power, 26 YALE L. & POL’Y REV. 265, 266 (2007)
(“In responding to attacks on his handling of the broadly defined war on terror, President George W.
Bush declared, ‘As President and [Commander in Chief], I have the constitutional responsibility and
the constitutional authority to protect our country.’”).
4. Jules Lobel, Conflicts Between the Commander in Chief and Congress: Concurrent Power over the Conduct
of War, 69 OHIO ST. L.J. 391, 393 (2008); see also A Forum on Presidential Authority, 6 SEATTLE J. SOC.
JUST. 23, 89 (2007) (opining that, during his presidency, “President Bush . . . engaged in
unprecedented usurpations of powers properly entrusted to the other branches of government”).
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Professor Catherine Powell similarly asserted that the Bush Administration
era involved “a dangerous erosion of the rule of law in the United States
through a disingenuous interpretation of the laws of war.”5
Some specific admonitions of Bush’s expansive interpretation of war
powers include his decisions to institute military commissions that did not
afford detainees adequate means of challenging detentions;6 the issuance
of orders that sanctioned interrogators to administer brutal tactics on
those confined in United States detention facilities;7 conducting illegal
domestic eavesdropping operations;8 utilization of presidential signing
statements that arguably ignored congressional will;9 broadly interpreting
legal standards for the use of force;10 manufacturing evidence to mold
conditions for war;11 and compromising the objectivity of the Attorney
General’s office.12 In 2007, a government report on secrecy concluded:
“In the past six years, the basic principle of openness as the underpinning
of democracy has been seriously undermined and distrust of government
is on the rise.”13
5. Catherine Powell, Scholars’ Statement of Principles for the New President on U.S. Detention Policy: An
Agenda for Change, 47 COLUM. J. TRANSNAT’L L. 339, 340 (2009); see also Bruce Ackerman & Oona
Hathaway, Limited War and the Constitution: Iraq and the Crisis of Presidential Legality, 109 MICH. L. REV.
447, 452 (2011) (reviewing the constitutional limits, as affirmed by the Supreme Court, of the
President’s war powers in the absence of congressional authorization extending those powers, then
noting “how President Bush unilaterally transformed the limited war authorized by Congress into an
unlimited war with escalating ambitions”); Charles Tiefer, Can Congress Make a President Step Up a
War?, 71 LA. L. REV. 391, 398–99 (2011) (suggesting that the Bush Administration overstepped
presidential power in the wake of 9/11).
6. Charles Tiefer, Can Congress Make a President Step Up a War?, 71 LA. L. REV. 391, 398 (2011).
7. Id. See generally Robert Bejesky, Pruning Non-Derogative Human Rights Violations into an
Ephemeral Shame Sanction, 58 LOY. L. REV. (forthcoming 2013) (discussing the non-derogative nature
of human rights protections irrespective of jurisdiction, prohibitions on interrogations, and the use of
public diplomacy and power to avoid responsibility); Robert Bejesky, The Utilitarian Rational Choice of
Interrogation from Historical Perspective, 58 WAYNE L. REV. (forthcoming 2012) (addressing the
questionable need for utilizing harsh interrogation methods and the historical development of the
approaches).
8. Charles Tiefer, Can Congress Make a President Step Up a War?, 71 LA. L. REV. 391, 398 (2011).
9. Id. at 399.
10. Id. at 398–99.
11. Saby Ghoshray, Illuminating the Shadows of Constitutional Space While Tracing the Contours of
Presidential War Power, 39 LOY. U. CHI. L.J. 295, 296 (2008).
12. Id. at 296 n.6.
13. DAVID BANISAR, GOVERNMENT SECRECY: DECISIONS WITHOUT DEMOCRACY 13
(2007), available at http://www.openthegovernment.org/sites/default/files/otg/govtsecrecy.pdf; see
also David D. Kirkpatrick & Adam Nagourney, In an Election Year, a Shift in Public Opinion on the War,
N.Y. TIMES (Mar. 27, 2006), http://www.nytimes.com/2006/03/27/politics/27war.html?
pagewanted=all&_r=1& (“Mr. Bush is pressing ahead with an intensified effort to shore up support
for the war, but an increasingly skeptical and pessimistic public is putting pressure on Congress about
the wisdom behind it, testing the political support for the White House’s determination to remain in
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The Obama Administration sought to distinguish itself from its
predecessor and tendered a prefatory guiding principle for foreign policy,
which stated, “President Obama has pursued national security policies that
keep the American people safe, while turning the page on a decade of war
and restoring American leadership abroad.”14 Global public opinion
recognized an apparent deviation from the Bush Administration when
Obama received a Nobel Prize in October 2009 for “extraordinary efforts
to strengthen international diplomacy and cooperation between
peoples.”15 While President Obama did not initiate any new offensive
operations in over two years in office, President Obama did raise red flags
when he unilaterally ordered bombings on Libya in conjunction with the
North Atlantic Treaty Organization (NATO) in March 2011.16 The
action was limited and did not involve ground soldiers in combat, but
objections renewed agitation over war powers.17 Jack L. Goldsmith,
Iraq.”). Before and during the conflict in Iraq, there were many congressional and public signals
urging the President to withdraw troops and end the occupation that went unheeded as the Bush
Administration escalated the conflict, ignoring public will and congressional war powers. See U.S.
GOVERNMENT ACCOUNTABILITY OFFICE, ACTIVITIES AND FINANCIAL OBLIGATIONS FOR SEVEN
FEDERAL DEPARTMENTS (Jan. 2005), http://www.gao.gov/highlights/d06305high.pdf (reporting
that the Bush Administration spent $1.62 billion on media and advertising between 2003 and 2005);
see also Robert Bejesky, Political Penumbras of Taxes and War Powers for the 2012 Election, 14 LOY. J. PUB.
INT. L. (forthcoming 2012) (describing the political climate and manipulative timing of the Bush
Administration in creating a climate in which hesitant democratic congressmen could not oppose the
President’s war rally without risking backlash in public opinion). See generally Robert Bejesky, Public
Diplomacy or Propaganda? Targeted Messages and Tardy Corrections to Unverified Reporting, 40 CAP. U. L. REV.
967, 991–93 (2012) (discussing how public relations strategies were used to diffuse dissent).
14. WHITE HOUSE, FOREIGN POLICY: GUIDING PRINCIPLES, http://www.whitehouse.gov
/issues/foreign-policy (last visited Nov. 15, 2012).
15. Robert Bejesky, Politico-International Law, 57 LOY. L. REV. 29, 29 (2011) (quoting Obama:
Nobel Peace Prize Is ‘Call to Action’, CNN (Oct. 9, 2009), http://articles.cnn.com/2009-1009/world/nobel.peace.prize_1_norwegian-nobel-committee-international-diplomacy-andcooperation-nuclear-weapons?_s=PM:WORLD).
16. See Joyce Appleby, Op-Ed, Warring Ambitions, L.A. TIMES (July 3, 2011),
http://articles.latimes.com/2011/jul/03/opinion/la-oe-appleby-war-powers-20110703 (noting that
the Framers not only predicted grabs for power by the Commander in Chief—as when the Obama
Administration sought to continue the use of force in Libya beyond the War Power Resolution’s time
limits—but the Framers planned for such power plays, institutionalizing checks and balances to stay
the Executive’s war-making powers); see also Robert Bejesky, Precedent Supporting the Constitutionality of
Section 5(b) of the War Powers Resolution, 49 WILLAMETTE L. REV. (forthcoming 2012) (contending the
Obama Administration’s Libya bombings were conducted under a theory based on the controversial
and arguably unconstitutional War Powers Resolution).
17. See Charlie Savage & Mark Landler, White House Defends Continuing U.S. Role in Libya
TIMES
(June
15,
2011),
http://www.nytimes.com/2011/06/16
Operation,
N.Y.
/us/politics/16powers.html?pagewanted=all (recalling that House Speaker John Boehner warned
President Obama of abusing the time limits set by the War Powers Resolution for an executive
exercising military force without congressional approval); see also Robert Bejesky, Precedent Supporting
the Constitutionality of Section 5(b) of the War Powers Resolution, 49 WILLAMETTE L. REV. (forthcoming
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former legal counsel to the Bush Administration, complained that “[t]he
[Obama] [A]dministration’s theory implies that the [P]resident can wage
war with drones and all manner of offshore missiles without having to
bother with the War Powers Resolution’s time limits . . . .”18 If the
Executive extends power unilaterally, inter-branch checks, oversight, and
democratic accountability may dissipate.19
Justice Rehnquist called the Commander in Chief power “the most
difficult area of all of the Constitution.”20
There are varying
interpretations of the balance of war powers between the President and
Congress,21 with some scholars championing sweeping presidential
prerogative and others defending the original understanding of the
Constitution, which indicates preeminent congressional authority.22 The
Constitution does not specify the exact allocation of authority between the
President and Congress, and there is no precise definition of the
2012) (reporting the White House’s explanation—that because ground troops were not used in
conjunction with the Obama Administration’s air strikes, the War Powers Resolution did not apply—
was met with disagreement by the Pentagon).
18. Charlie Savage & Mark Landler, White House Defends Continuing U.S. Role in Libya Operation,
TIMES
(June
15,
2011),
http://www.nytimes.com/2011/06/16/us/politics/
N.Y.
16powers.html?pagewanted=all.
19. See HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING
POWER AFTER THE IRAN-CONTRA AFFAIR 205–06 (1990) (discussing the purpose of separation of
powers as discouraging autocracy of any branch because of constant friction between the branches,
thereby providing personal incentives that encourage politicians to keep other branches in check); W.
TAYLOR REVELEY III, WAR POWERS OF THE PRESIDENT AND CONGRESS: WHO HOLDS THE
OLIVE BRANCH? 72 (1981) (discussing the purpose of the checks-and-balances system embedded in
the United States governmental structure as inducing “consensus behind American action for war
and peace,” encouraging “rational war and peace decisions,” and “permit[ting] emergency action for
war or peace that has not yet been blessed by national consensus or democratic control”).
20. Executive Impoundment of Appropriated Funds: Hearings Before the Subcommittee on Separation of
Powers of the Senate Committee on the Judiciary, 92d Cong. 251 (1971).
21. See Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1200
(2006) (“The initiation of U.S. military operations in Iraq flowed from a long list of miscalculations,
false claims, and misjudgments, both legal and political . . . [that were] built upon a half century of
violations of constitutional principles over the war power.”); Harold Hongju Koh, Setting the World
Right, 115 YALE L.J. 2350, 2354 (2006) (“[T]his revamped foreign policy vision—of unfettered
executive power in the war on terror, human rights double standards, militarily imposed democracy,
and strategic unilateralism—cannot operate unless the constitutional vision within which foreign
policy functions is also recast.”).
22. Compare John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of
War Powers, 84 CALIF. L. REV. 167, 174 (1996) (discussing the war making powers of Congress and
the Executive as potentially valid whether working in harmony or antagonistically), with Louis Fisher,
Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1202–03 (2005) (arguing the
framework of the Constitution places war making powers “exclusively in Congress,” while “the war
power . . . assigned to the President . . . was of a defensive nature”).
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relationship.23
This Article examines competing perspectives and
dissension by using Justice Jackson’s “zone of twilight” formulation in
Youngstown Sheet & Tube Co. v. Sawyer24 to juxtapose originalist and
structuralist interpretations of the Constitution in conjunction with
contemporary developments. Justice Jackson’s design is one of several
possible formulations constructed to explicate presidential power.25
Part II of this Article canvases an originalist interpretation of the
Constitution, surveys early court cases involving war powers, and provides
a staged framework for interpreting the use of force. This Part identifies
cardinal rules and settled principles that Congress and the President should
observe when confronted with a potential military action. Identified
within Justice Jackson’s first prong are actions pursuant to unmistakable
23. E.g., HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING
POWER AFTER THE IRAN-CONTRA AFFAIR 67 (1990) (describing the startling brevity of the
Constitution in distributing related powers to separate branches of government without specifying
how such an inter-branch relationship should function); John C. Yoo, The Continuation of Politics by
Other Means: The Original Understanding of War Powers, 84 CALIF. L. REV. 167, 241 (1996) (“[T]he
Framers did not set down in writing the exact allocation of authority between the executive,
legislative, and judicial branches.”).
24. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).
25. See Erwin Chemerinsky, Controlling Inherent Presidential Power: Providing a Framework for Judicial
Review, 56 S. CAL. L. REV. 863, 870–78 (1983) (proposing four frameworks of inherent presidential
power to be used as reference points when reviewing that power: first, “No Inherent Presidential
Power”; second, “Interstitial Executive Power”; third, “Legislative Accountability”; and fourth,
“Broad Inherent Authority”). Accordingly, there could be different assessments within Justice
Jackson’s three-pronged formulation. E.g., Youngstown, 343 U.S. at 635 (Jackson, J. concurring)
(remarking the analysis was an “over-simplified grouping of practical situations”). The second and
third prongs are referred to as the source of presidential interpretation. See EDWARD KEYNES,
UNDECLARED WAR: TWILIGHT ZONE OF CONSTITUTIONAL POWER 11–12 (1982) (noting the
Executive’s inherent authority in foreign affairs has been described as a prerogative encompassing
“the power of doing public good without a rule,” including “the power to determine the public good
or interest in circumstances that were unforeseen or unforeseeable by the legislature” and “to act
contrary to standing law as well as the power to act in the face of the standing law’s silence in order
to preserve the nation from external military threat or internal violence”). Congress effectively
renounced war powers pursuant to this third “lowest ebb.” See JOHN HART ELY, WAR AND
RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 142–43 n.22
(1993) (discussing the Framers’ specific intent in excluding from presidential war powers the power
to declare or begin a war and allowing command only after the legislature declared war, then noting
the expansion of presidential power to exercise military command during peace time). Legislation
should not be interpreted unreasonably or arbitrarily. United States v. Clark, 315 F. Supp. 2d 1127,
1130 (W.D. Wash. 2004) (“[W]here a statute is susceptible of two constructions, by one of which . . .
questions arise and by other of which such questions are avoided, [the Court’s] duty is to adopt the
latter.” (quoting United States v. Delaware & Hudson Co., 213 U.S. 366, 408 (1909))). The typical
method of statutory construction is to consider first the text to ascertain effective meaning of the
entire statute; if the text is ambiguous, extra-textual materials are considered, giving priority to judicial
interpretations, then committee reports, and finally legislative history other than committee reports.
Daniel C. Brown, Stop Loss: Illegal Conscription in America?, 54 AM. U. L. REV. 1595, 1610–12 (2005).
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rules (when the President possesses elevated power with congressional
assent) and the third prong, known as the “lowest ebb” (which occurs
when the President has minimal power because it is clear the Executive is
transgressing congressional will).26
In a recent two-part Article,27 Professors David J. Barron and Martin S.
Lederman examined Justice Jackson’s lowest ebb and concluded there is
sparse historical evidence of the Executive transgressing Congress’s war
powers.28 They found that “notwithstanding recent attempts to yoke the
defense of executive defiance in wartime to original understandings, there
is surprisingly little historical evidence supporting the notion that the
conduct of military campaigns is beyond legislative control.”29 The
authors further expressed that “we simply have not seen the evidence to
support the notion that the Executive more regularly disregarded statutes
[implicating war powers], or construed them unreasonably, in the many
years prior to the spate of recent criminal enactments.”30 The Article
intimates that commentators incorrectly cite purported precedent in which
Presidents perfunctorily transgress war powers. Yet there is no question
that administrations have transgressed a reasonable interpretation of war
powers, suggesting that contentions within the zone of twilight cause most
dissension.
To scrutinize the basis for disagreement among scholars, Part III
addresses the formation of the zone of twilight. It emphasizes that zone
of twilight questions materialize from informational asymmetries on
questions of law and fact that are normally negligible in situations
involving Jackson’s first and third prongs. Part IV discusses how
technology has developed in garnering information for the zone of
twilight. First, global circumstances have evolved, such as the existence of
more sophisticated weapons and technology, a global expansion of the
United States military, and United Nations’ rules and definitions delimiting
the use of force. Changing international relations begets new questions on
26. Erwin Chemerinsky, Controlling Inherent Presidential Power: Providing a Framework for Judicial
Review, 56 S. CAL. L. REV. 863, 869 (1983).
27. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941 (2008); David J. Barron & Martin S. Lederman, The
Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121
HARV. L. REV. 689 (2008).
28. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest
Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 712 (2008)
(contending the expansion of presidential prerogative war powers is a mere trend, falling short of a
historical foundation to support further increase in executive war powers).
29. Id. at 691–92.
30. Id. at 718.
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whether a specific level of force implicates war powers; for example, how
Congress’s authority to declare war should be applied, whether national
exigency protracts beyond United States borders, whether the intensity of
force used should be defined by potential casualties or by policy
ramifications, and how far the Executive’s authority as caretaker of the
military should expand during peacetime. Second, domestic institutional
developments endow the Executive with informational advantages due to
the expansion of the administrative state, the White House’s ability to
engage in agenda setting, the President’s control over national security
secrecy, and Congress’s susceptibility to persuasion by subjective factors
rather than confirmed by objective factors when requested to approve
military action. Third, while the Framers’ intentions, court cases, and over
150 years of general scholarly agreement form consensus understandings
on separation of war powers, Supreme Court hesitancy to address use of
force questions after the Vietnam War produced a void eventually filled by
clever constitutional interpretation and biased application of precedent to
changing circumstances.
II. THE CONSTITUTION, CORE PRINCIPLES, AND JUSTICE JACKSON’S TEST
A. Separation of Powers
Affirming the Constitution’s prefatory goal of constituting a
government that is for “the People,”31 the Framers accentuated the
importance of checks on power. For example, the Framers deliberately
conferred a superior authority to the legislature to diffuse power across a
sizable representative body.32 To mollify concerns, such as the passions
of the majority descending into tyranny33 and factions unfairly collocating
power,34 the Framers formulated a system of vertical checks with state
31. U.S. CONST. pmbl.
32. James Madison stated: “In republican government, the legislative authority necessarily
predominates.” THE FEDERALIST NO. 51 (James Madison). In 1884, President Woodrow Wilson
expressed that “Congress [is] the dominant, nay, the irresistible, power of the federal system.”
WOODROW WILSON, CONGRESSIONAL GOVERNMENT: A STUDY IN AMERICAN POLITICS 23
(1885); see also LOUIS FISHER, CONSTITUTIONAL CONFLICTS BETWEEN CONGRESS AND THE
PRESIDENT 7–9 (5th ed. 2007) (discussing powers delegated to the members of Congress). The
legislature is crucial because it passes laws for courts to adjudicate and establishes obligations for the
President to execute. E.g., LOUIS FISHER, CONSTITUTIONAL CONFLICTS BETWEEN CONGRESS
AND THE PRESIDENT 5 (5th ed. 2007) (emphasizing that Congress has an important hand in
governmental decisions).
33. Sanford Levinson & Jack M. Balkin, Constitutional Dictatorship: Its Dangers and Its Design, 94
MINN. L. REV. 1789, 1791–92 (2010).
34. See EDWARD S. CORWIN, THE PRESIDENT: OFFICE AND POWERS: HISTORY AND
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sovereignty and federalism and horizontal separation of powers checks
with coequal branches of government.35 Article I of the United States
Constitution states that “[a]ll legislative Powers herein granted shall be
vested in a [bicameral] Congress,”36 Article II declares that “[t]he
executive Power shall be vested in a President,”37 and Article III
establishes the Judiciary to render decisions on cases or controversies.38
The Framers posited that divided authority among coequal branches was
essential to impede aggregation of power;39 today, separation of powers is
a salient feature legitimizing recent democratization movements and
restraining political actors.40 James Madison stated, “If it be a
fundamental principle of free [government] that the Legislative,
Executive[, and] Judiciary powers should be separately exercised; it is equally
so that they be independently exercised . . . . A coalition of the two former
powers would be more immediately [and] certainly dangerous to public
liberty.”41
ANALYSIS OF PRACTICE AND OPINION 201 (1940) (discussing the system of checks and balances
with “the President . . . usually in a position to propose, [while] the Senate and Congress are often in a
technical position at least to dispose”); Timothy K. Kuhner, The Separation of Business and State, 95
CALIF. L. REV. 2353, 2368 (2007) (citing views of James Madison, Alexander Hamilton, and John Jay
in the Federalist Papers, which stated that human nature and rising dominant factions could only be
countervailed by separation of powers).
35. See Timothy K. Kuhner, The Separation of Business and State, 95 CALIF. L. REV. 2353, 2369
(2007) (“[W]hat sense would it make if, although the branches themselves remained separate, one
group of people was permitted to control them all?”).
36. U.S. CONST. art. I, § 1.
37. Id. art. II, § 1.
38. Id. art. III, §§ 1–2.
39. See THE FEDERALIST NO. 51 (James Madison) (explaining “the remedy” for a dominant
legislature is to divide legislative powers into minimally connected branches); GERHARD CASPER,
SEPARATING POWER: ESSAYS ON THE FOUNDING PERIOD 9 (1997) (“Separation [of powers] is a
necessary, if not sufficient, condition of liberty: its absence promotes tyranny.”); Timothy K. Kuhner,
The Separation of Business and State, 95 CALIF. L. REV. 2353, 2368–69 (2007) (noting that separation of
powers was necessitated by “flaws of human nature” and that men and women would seek to obtain
power and abuse it if possible).
40. See Organization of the American States General Assembly, Resolution of San José, Costa Rica
Inter-American Democratic Charter Art. 3, AG/RES 1838 (XXXI-O/01) (June 5, 2001) (“[S]eparation of
powers and independence of the branches of government” are “[e]ssential elements of representative
democracy.”); U.N. Comm. on Human Rights, Human Rights Resolution 2005/32: Democracy and the Rule
of
Law,
U.N.
Doc.
E/CN.4/RES/2005/32
(Apr.
19,
2005),
available
at
www.unhcr.org/refworld/docid /45377c4c0.html (suggesting states “strengthen the rule of law and
promote democracy by [u]pholding the separation of powers”); Oona A. Hathaway, Presidential Power
over International Law: Restoring the Balance, 119 YALE L.J. 140, 147 (2009) (recognizing that separation
of powers “encourages accountability and discourages misbehavior by pitting ‘ambition against
ambition’”).
41. 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 56 (Max Farrand ed., Yale
University Press rev. ed. 1966) (1911).
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Justice Jackson expressed, “While the Constitution diffuses power the
better to secure liberty, it also contemplates that practice will integrate the
dispersed powers into a workable government. It enjoins upon its
branches separateness but interdependence, autonomy but reciprocity.”42
The blended and overlapping power model rebuffs notions of clear
bounds of prerogative for each branch43 and therein reduces the risk of
injustice or despotism by affirming an effective system of checks and
balances.44 The system intended to thwart imprudent actions in foreign
affairs and restrain ambitious politicians.45
B. Separation of War Powers and the Youngstown Formulation
1. Framework
Congressional war powers include the prerogatives to “declare War;”
“grant Letters of Marque and Reprisal,” which were operations that fell
short of “war”; “make Rules for the Government and Regulation of the
land and naval Forces;” “to provide for organizing, arming, and
disciplining, the Militia;” “make Rules concerning Captures on Land and
Water;” “raise and support Armies;” and “provide and maintain a
Navy.”46 Alternatively, the President is endowed with one war power,
that of “Commander in Chief of the Army and Navy.”47 Numerical
comparison indicates that the intended dominant branch in war powers
decisions is Congress.
42. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.,
concurring); see also Neil Kinkopf, The Statutory Commander in Chief, 81 IND. L.J. 1169, 1170 n.3 (2006)
(indicating how Dames & Moore v. Regan, 453 U.S. 654 (1981), emphasized the reciprocity model of
power sharing).
43. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest
Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 726 (2008)
(asserting “the war powers of each political branch are presumed to be extensive and, for that reason,
blended and overlapping with those of the competing branch”.
44. M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 153 (1967); Louis
Fisher, Congressional Abdication: War and Spending Powers, 43 ST. LOUIS U. L.J. 931, 936–37 (1999); Peter
M. Shane, When Inter-Branch Norms Break Down: Of Arms-for-Hostages, “Orderly Shutdowns,” Presidential
Impeachments, and Judicial “Coups”, 12 CORNELL J.L. & PUB. POL’Y 503, 505–06 (2003).
45. See David Golove, Military Tribunals, International Law, and the Constitution: A FranckianMadisonian Approach, 35 N.Y.U. J. INT’L L. & POL. 363, 368 (2003) (reiterating the checks and
balancing system is to act as an umpiring function “to prevent hasty and improvident exercises of the
foreign affairs powers and to check the tendency of ambitious politicians to override . . . the rights of
individuals”.
46. U.S. CONST. art. I, § 8, cls. 11, 14, 16; see also W. TAYLOR REVELEY III, WAR POWERS OF
THE PRESIDENT AND CONGRESS: WHO HOLDS THE ARROWS AND OLIVE BRANCH? 29–30 (1981)
(emphasizing that the text of the Constitution clearly imparts congressional dominance).
47. U.S. CONST. art. II, § 2, cl. 1.
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The Commander in Chief authority is a core preclusive power that
designates the President as the head of the military command chain once
Congress activates the power.48 Moreover, peripheral Commander in
Chief powers are bridled by both statutory and treaty restrictions.49 The
media lore of using “Commander in Chief” coterminous with “President”
might occasionally be a misnomer outside of war, perhaps abetting
presidential expansionism when combined with commentators employing
terms such as “inherent authority.” Clearly, if Congress has not activated
war powers, the President still possesses inherent authority to react
expeditiously and unilaterally to defend the nation when confronted with
imminent peril.50 However, the Framers drew a precise distinction when
they specifically empowered the President “to repel and not to commence
war.”51 Alexander Hamilton explained that latitude was required “because
it is impossible to foresee or to define the extent and variety of national
exigencies, and the correspondent extent and variety of the means which
may be necessary to satisfy them.”52
The Constitution allocates authority in foreign policy. Congress’s
authority in international relations includes ratifying treaties with Senate
approval, implementing international law, and actualizing international
initiatives with substantial domestic effects or those that require funding.53
Nonetheless, the President is the country’s exclusive agent in international
relations.54 As John Marshall stated in the House of Representatives in
48. Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE
L.J. 672, 694–97 (1972).
49. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 721 (2008).
50. Id. at 745–48; Saby Ghoshray, Illuminating the Shadows of Constitutional Space While Tracing the
Contours of Presidential War Power, 39 LOY. U. CHI. L.J. 295, 300 (2008); Harold Hongju Koh, Setting the
World Right, 115 YALE L.J. 2350, 2358 (2006).
51. 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 318 (Max Farrand ed., Yale
University Press rev. ed. 1966) (1911).
52. THE FEDERALIST NO. 23 (Alexander Hamilton).
53. See 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 235, 263–64, 537–38 (Max
Farrand ed., Yale University Press rev. ed. 1966) (1911) (evincing that the Framers intended Congress
to have a substantial role in foreign affairs); David J. Barron & Martin S. Lederman, The Commander in
Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689,
743 (2008) (“[T]he Constitution expressly assigns extensive powers to Congress to deal with foreign
relations, foreign commerce, and war . . . .”); Derek Jinks & David Sloss, Is the President Bound by the
Geneva Conventions?, 90 CORNELL L. REV. 97, 176–78 (2004) (discussing “the constitutional balance
between Congress and the President” that arises during times of war); Charles Tiefer, Can
Appropriation Riders Speed Our Exit from Iraq?, 42 STAN. J. INT’L L. 291, 297 (2006) (noting
congressional restrictions on foreign aid to other countries engaged in combat).
54. See Dep’t of the Navy v. Egan, 484 U.S. 518, 529–30 (1988) (reiterating that the foreign
affairs power is “the province and responsibility of the Executive” (quoting Haig v. Agee, 453 U.S.
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1800, “The President is the sole organ of the nation in its external
relations, and its sole representative with foreign nations.”55 As the
solitary voice as head of state, the President may be congressionally
obliging by markedly incorporating congressional opinion when
representing the nation, or by favoring executive prerogative in developing
initiatives for peacetime affairs.56 However, the Court recognized that the
head of state power can “be regulated by treaty or by [an] act of
[C]ongress” and that those restrictions must “be executed by the
[E]xecutive.”57
2. Power-Sharing
In accordance with the blended and overlapping separation of powers
model, the Framers also established a pragmatic and flexible convention of
apportioned war powers that eschewed rigid rules58 but simultaneously
sought to “preclude the exercise of arbitrary power” efficiently.59 In
Youngstown, Justice Jackson wrote that the President has no “monopoly of
‘war powers’”60 and that executive powers “are not fixed[,] but fluctuate,
depending upon their disjunction or conjunction with those of
Congress.”61 First, “when the President acts pursuant to an express or
280, 293–94 (1982))); LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES
CONSTITUTION 42–43 (2d ed. 1996) (discussing the President’s foreign affairs duties); Raoul Berger,
The Presidential Monopoly of Foreign Relations, 71 MICH. L. REV. 1, 1 (1972) (recognizing the President
has absolute control over the nation’s foreign affairs).
55. United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 319 (1936).
56. See id. at 320 (“[N]egotiation and inquiry within the international field must often accord to
the President a degree of discretion and freedom from statutory restriction which would not be
admissible were domestic affairs alone involved.”). In 1793, James Hamilton distinguished between
the separation of powers applicable to maintaining stable and peaceful foreign relations and that
which is applicable when going to war. He noted:
While, therefore, the Legislature can alone declare war, can alone actually transfer the nation
from a state of peace to a state of hostility, it belongs to the ‘executive power’ to do whatever
else the law of nations, co-operating with the treaties of the country, enjoin in the intercourse of
the United States with foreign [p]owers.
4 ALEXANDER HAMILTON, THE WORKS OF ALEXANDER HAMILTON 443 (Henry Cabot Lodge ed.,
1904).
57. Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893).
58. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 801 (2008).
59. Myers v. United States, 272 U.S. 52, 293 (1926) (Brandeis, J., dissenting); see also William P.
Marshall, The Limits on Congress’s Authority to Investigate the President, 2004 U. ILL. L. REV. 781, 784
(2004) (providing an overview of Congress’s limited power to investigate the President).
60. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 644 (1952) (Jackson, J.,
concurring).
61. Id. at 635.
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implied authorization of Congress,” maximized is presidential authority
because it encompasses all delegable powers of Congress and the powers
of the Executive Branch.62 Second, “when the President acts in absence
of either a congressional grant or denial of authority, . . . there is a zone of
twilight in which he and Congress may have concurrent authority.”63
Third, “when the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest ebb, for
then he can rely only upon his own constitutional powers minus any
constitutional powers of Congress over the matter.”64
The three-prong analysis parallels other constitutional axioms. For
example, the President is obligated to execute laws that Congress enacts
and cannot act beyond legislative parameters.65 In the majority opinion in
Youngstown, Justice Black underscored that the President’s authority “must
stem either from an act of Congress or from the Constitution itself.”66
The President cannot take action beyond his or her independent powers as
Executive unless Congress sanctions the initiative.67 Accordingly, the
“zone of twilight” appertains to circumstances in which there may be no
congressional legislation and to factual and legal situations that involve
62. Id. at 635–36.
63. Id. at 637.
64. Id.
65. E.g., U.S. CONST. art. II, § 1, cl. 7 (“Before he enter on the Execution of his Office, he shall
take the following Oath or Affirmation:—‘I do solemnly swear (or affirm) that I will faithfully
execute the Office of President of the United States, and will to the best of my Ability, preserve,
protect and defend the Constitution of the United States.’”).
66. Youngstown, 343 U.S. at 585 (Jackson, J., concurring).
67. See Oona A. Hathaway, Presidential Power over International Law: Restoring the Balance, 119 YALE
L.J. 140, 211 (2009) (“[A]ny time the President acts beyond his own independent powers (including
when he concludes ex ante congressional-executive agreements), genuine collaboration between
Congress and the President is necessary.”). The three prongs of Jackson’s analysis involve
concurrent powers—powers shared by Congress and the Executive—as opposed to core, or
exclusive, powers—powers held by the Executive alone. See Jules Lobel, Conflicts Between the
Commander in Chief and Congress: Concurrent Power over the Conduct of War, 69 OHIO ST. L.J. 391, 445–46
(2008) (noting that “a fallacy grew from lawyers and scholars lumping together concepts of
concurrent authority and uncertain authority, which are distinct categories requiring different
analysis”). Indeed, the first prong—when the President acts “pursuant to an express or implied
authorization of Congress” and maximizes his or her power—and the third prong—when the
President acts against “the express or implied will of Congress” and creates the “lowest ebb” of his
or her authority—would not seem relevant to Justice Jackson’s analysis because exclusive powers can
be taken without regard to another branch of government. Id. (quoting Youngstown, 343 U.S. at 585
(Jackson, J., concurring)). Such exclusive powers are, however, rather limited, necessitating that the
Executive utilize Jackson’s first and third prongs far more often than the middle prong. See id. at
453–54 (“[T]he congressional powers . . . certainly are explicit, ‘core’ congressional powers that
define and limit Executive power to wage warfare . . . . [H]owever, . . . the President’s pardon and
veto authority and position as Commander in Chief of the armed forces are exclusive . . . .”).
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concurring, uncertain, unsettled, or ambiguous authority.68 In Dames &
Moore v. Regan,69 the Court explained, “Congress cannot anticipate and
legislate with regard to every possible action the President may find it
necessary to take or every possible situation in which he might act.”70
III. WAR POWERS AS A PROGRESSION OF DECISIONS: AN ORIGINAL
UNDERSTANDING ACCORDANT WITH JUSTICE JACKSON’S FIRST AND
THIRD PRONGS
A. Introduction
A military action subject to war powers entails both and executive
initiatives—Congress must authorize and fund a war while the President,
as Commander in Chief, makes troop deployment decisions and authorizes
military action to execute the war effort.71 When the country is not at
war, Congress funds, adopts rules, and provides governance for the
military while the President implements legislative frameworks and serves
as caretaker to the military.72
B. Establishing and Governing the Military
Bruce Porter wrote that “[t]he vast majority of America’s landowning
aristocracy had an almost congenital distrust of standing armies, which
their ancestors for generations had identified with despotism . . . .”73
Consequently, the Framers were unsure whether the new nation should
68. Potentially overlapping, concurring powers hinge on whether Congress has engaged in a
“particularly longstanding practice of congressional acquiescence” regarding the matter at hand. See
Medellin v. Texas, 552 U.S. 491, 532 (2008) (internal quotation marks omitted) (noting that the
President’s authority to act in a foreign relations matter pursuant to an executive agreement was
dubious for its unprecedented nature).
69. Dames & Moore v. Regan, 453 U.S. 654 (1981).
70. Id. at 678.
71. See Philip Bobbitt, War Powers: An Essay on John Hart Ely’s War and Responsibility: Constitutional
Lessons of Vietnam and Its Aftermath, 92 MICH. L. REV. 1364, 1388–89 (1994) (book review) (noting
that, despite the system of checks and balances, describing war powers as separated amongst the
branches is misleading because those powers, along with the branches controlling them, are
intimately linked); Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on
Terrorism, 118 HARV. L. REV. 2047, 2051–52 (2005) (describing the Court’s approach to determining
wartime power, not by addressing the scope of either branch’s constitutional authority, but instead by
attempting to delineate “what Congress has in fact authorized”).
72. U.S. CONST. art I, § 8, cls. 11–16; id. art. II, § 2.
73. BRUCE D. PORTER, WAR AND THE RISE OF THE STATE: THE MILITARY FOUNDATIONS
OF MODERN POLITICS 250 (1994).
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have, or would need, a standing army,74 but they conspicuously indicated
Congress would have effective supremacy over any future permanent
military.75 Congress affirmed this dominion in 1789 with legislation
expressing the military “shall be governed by the rules and articles of war
which have been established by the United States in Congress assembled,
or by such rules and articles of war, as may hereafter by law be
established.”76 Similarly, in Swaim v. United States,77 the Court held that
“Congress may increase the Army, or reduce the Army, or abolish it
altogether . . . .”78 President Theodore Roosevelt’s Attorney General
acknowledged, “[C]ongress is the sole judge of how the Army or Navy
shall be raised and of what it shall be composed.”79
Congressional statutes itemized detailed rules and procedures for the
military establishment.80 Congress adopted and amended the Uniform
Code of Military Justice81 and furnished an exhaustive legislative system
for military governance in Title 10 of the United States Code.82 In
addition, because Congress holds budgetary power over the military,
74. Michael Sevi, Original Intent, Timetables, and Iraq: The Founders’ Views on War Powers, 13 TEX.
REV. L. & POL. 73, 94–96 (2008); see also Stuart Streichler, Mad About Yoo, or, Why Worry About the
Next Unconstitutional War?, 24 J.L. & POL. 93, 119 (2008) (“Amid widespread concern over having a
professional standing army, the U.S. Army had fewer than 1,000 regular soldiers when Washington
became [P]resident.” (citing ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS, AND
CONSTITUTIONAL POWER: THE ORIGINS 116 (1976))).
75. E.g., Charles Tiefer, Can Congress Make a President Step Up a War?, 71 LA. L. REV. 391, 408
(2011) (indicating this restriction would prevent “excesses of monarchical or dictatorial power”).
76. Act of Sept. 29, 1789, ch. 25, § 4, 1 Stat. 95, 96 (repealed 1790); see also Restoration of
Dismissed Military and Naval Offices, 12 OP. ATT’Y GEN. 4, 4 (1866) (noting it is Congress’s
constitutional power “to make rules for the government and regulation of the land and naval forces”
(quoting U.S. CONST. art. I, § 8)).
77. Swaim v. United States, 28 Ct. Cl. 173 (1893).
78. Id. at 221.
79. Charles Tiefer, Can Appropriation Riders Speed Our Exit from Iraq?, 42 STAN. J. INT’L L. 291,
302 (2006) (quoting 27 OP. ATT’Y GEN. 259, 260 (1909)).
80. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 961–64 (2008) (describing an increasingly commonplace
exertion of war authority by Congress with only statutory restraints, thereby “triggering the
President’s constitutional ‘command’ authorities . . . confined so as to ensure they were exercised in a
manner consistent with . . . directives [of] Congress”); see also id. at 958, 971–72, 1026–27 (noting
various enactments by Congress that exercised congressional war powers while limiting the extent to
which those powers could be executed).
81. See James B. Roan & Cynthia Buxton, The American Military Justice System in the New
Millennium, 52 A.F. L. REV. 185, 187–89 (2002) (recognizing that Congress adopted the Uniform
Code of Military Justice (UCMJ), which was the first major change in the military’s justice system
since the Revolutionary War).
82. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 1026–27 (2008) (“Title 10 . . . establish[ed] a
comprehensive legal framework for the organization and conduct of the armed forces.”).
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Congress could reduce or even disband the standing military merely by
cutting off military funding,83 which further parameterizes executive
prerogative84 and the President’s role as the head of the military hierarchy
during peacetime.85 The President does superintend the military,86 which
includes substantial discretion for military procurement,87 but this
prerogative was assuredly not carte blanche. Consider two contentious
actions under the “superintendence” function.
In June 1807, a British warship attacked an American frigate and war
seemed imminent; President Jefferson’s administration then contracted to
purchase materials for gunpowder and timber used to build gunboats.88
Three months after the purchase, Jefferson acknowledged Congress’s
appropriations power and that authorization was required for the
acquisitions, but he told Congress that it was an imminent emergency to
defend the nation in the event of a possible war with Britain.89 Jefferson
explained his presumption that Congress would have viewed the situation
as urgently as he had, had it been in session, implying that he contracted
83. Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX.
L. REV. 299, 322–23 (2008).
84. E.g., David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 958 (2008) (“Congress also used the power of the purse
to delimit what would otherwise be the Commander in Chief’s broad discretion to command and
structure the military establishment, and its specifications for military-related disbursements were
often quite detailed.”).
85. See id. at 1023 (describing the effect of the Executive’s superintendence prerogative as
making discretionary decisions regarding the military subject solely to the President, “and that no
other person may be given command authority that supersedes the President’s”); Richard A. Epstein,
Executive Power, the Commander in Chief, and the Militia Clause, 34 HOFSTRA L. REV. 317, 320–22 (2005)
(discussing the interplay of war powers between the Legislative and Executive branches, while
specifically noting “the inability of Congress . . . to oust the President . . . from his role of
[Commander in Chief]”). With the Goldwater-Nichols Department of Defense Reorganization Act
of 1986, which consolidated and purportedly streamlined command chains, military commanders
answer to the President and the Secretary of Defense through the military chain of command via the
Joint Chiefs of Staff. 10 U.S.C. § 163 (2006).
86. See Loving v. United States, 517 U.S. 748, 772 (1996) (noting the President’s role “require[s]
him to take responsible and continuing action to superintend the military”); Swaim v. United States,
28 Ct. Cl. 173, 221 (1893) (“[S]o long as we have a military force[,] Congress [cannot] take away from
the President the supreme command.”).
87. See Neil Kinkopf, The Statutory Commander in Chief, 81 IND. L.J. 1169, 1187 (2006) (“[T]he
President [has] the authority to issue any rule that is designed to promote economy and efficiency in
federal procurement.”).
88. ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE
ORIGINS 172 (1976).
89. Thomas Jefferson, Annual Message to Congress (Oct. 27, 1807), 17 ANNALS OF CONG. 14,
17 (1807) (“I deemed it indispensible to secure a greater provision . . . of military stores . . . . To have
awaited a previous and special sanction by law would have lost occasions that might not be
retrieved.”).
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for the acquisition in a manner that he expected Congress would approve
of.90 Congress did pay for the purchases91 and the “small United States
Navy scrambled to face a conflict for which it was not prepared,”92
substantiating Jefferson’s fears in making the emergency acquisition. The
purchase was for an emergency to defend the country against an imperial
power—it did not yet involve engaging in hostilities.
World War II provides another example of an executive departure.
Before entering the war, and without congressional approval, President
Roosevelt transferred fifty destroyers to the British in exchange for longterm leases in foreign territories.93 The transfer also likely violated the
1937 Neutrality Act that prevented financing or providing munitions to
any party engaged in war.94 Congress has the prerogative to determine
government property transfers and to raise and fund the military, which
ostensibly made this an unapproved taxpayer financed transaction that
would exceed the President’s superintendent function.95
C. Authorizing Force
Louis Fisher wrote that, “[g]iven the dominant power of Presidents over
the past half century and their commitment to military action, it may seem
that the U.S. Constitution supports their authority to go to war. It does
not. The Constitution was intended to prohibit presidential wars.”96
Perhaps due to simplified media portrayals, inaccurate societal perceptions,
and exponents of executive expansionism, it may appear that Congress
does not initiate wars.97 However, substantial legislative prerogative in
military actions is congruous with contemporary standards in other
90. Id. (“I trust that the Legislature, feeling the same anxiety . . . will approve . . . what they
would have seen so important to be done, if then assembled.”).
91. Act of Dec. 18, 1807, ch. 4, § 2, 2 Stat. 451.
92. ANGUS KONSTAM, SCOURGE OF THE SEAS: BUCCANEERS, PIRATES AND PRIVATEERS 170
(2007).
93. Herbert W. Briggs, Neglected Aspects of the Destroyer Deal, 34 AM. J. INT’L L. 569, 569–71
(1940).
94. Joint Resolution of May 1, 1937, ch. 146, 50 Stat. 121.
95. See Herbert W. Briggs, Neglected Aspects of the Destroyer Deal, 34 AM. J. INT’L L. 569, 587
(1940) (discussing President Roosevelt’s deal and concluding “[t]he supplying of these vessels by the
United States Government to a belligerent is a violation of our neutral status, a violation of our
national law, and a violation of international law”).
96. Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1200
(2006).
97. Jide Nzelibe, A Positive Theory of the War-Powers Constitution, 91 IOWA L. REV. 993, 996–97
(2006).
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democracies98 and with the opinion of influential United States scholars,
including John Ely, Louis Fisher, Mark Glennon, Louis Henkin, and
Harold Koh.99 Most importantly, an understanding of the original intent
of the Constitution affirms that Congress must sanction all substantial
conflicts other than imminent defensive measures.100 The Framers
explicitly affirmed they intended there be meaningful consultation between
the President and Congress for the use of the United States military101
and that legislative deliberation and authorization precede the actual use of
force.102 Pre-Constitutional Convention treatment, the context of the
Convention, and abundant Framer statements confirm this legislative
dominance in war powers.103
98. See Jenny S. Martinez, Inherent Executive Power: A Comparative Perspective, 115 YALE L.J. 2480,
2483, 2491 (2006) (considering several modern democracies and finding that “all now formally
recognize some limits on executive power” and “[n]one . . . deem it prudent to give the chief
executive broad, unchecked power even in the area of national security; all divide powers in this area
between the chief executive and the legislature”); Christopher Waters, Beyond Lawfare: Juridical Oversight
of Western Militaries, 46 ALTA. L. REV. 885, 888 (2009) (“Parliamentary control over troop
deployments for combat is seen as a crucial democratic check on executives.”).
99. See generally JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF
VIETNAM AND ITS AFTERMATH 143 (1993) (examining the interplay of war powers under the United
States Constitution); LOUIS FISHER, PRESIDENTIAL WAR POWER 40–43, 186 (2d rev. ed. 2004)
(examining legislative prerogatives with examples from the Polk and Clinton Administrations);
MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 80–81 (1990) (writing that it was the intent
of the Framers for the President to be subordinate to Congress in war-making decisions, except for
those decisions of eminent danger); LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND
FOREIGN AFFAIRS 26 (1990) (“The President’s designation as Commander in Chief . . . appears to
have implied no substantive authority to use the armed forces . . . whether for war or for peacetime
purposes, except as Congress directed.”); HAROLD HONGJU KOH, THE NATIONAL SECURITY
CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 205–06 (1990)
(acknowledging that separation of powers is meant to “discourage overreaching by any one branch
by encouraging participation and checking behavior by the other two”).
100. Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE
L.J. 672, 694–97 (1972). Alternatively, Alexander Hamilton explained that Congress’s power over
war included “safety in the republican sense.” Michael Ramsey, The Framers’ War-Making Powers, 28
HARV. INT’L L. REV., no. 2, at 4 (2006).
101. Geoffrey Corn, Triggering Congressional War Powers Notification: A Proposal to Reconcile
Constitutional Practice with Operational Reality, 14 LEWIS & CLARK L. REV. 687, 713 (2010); see also Jon D.
Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 81
WASH. U. L.Q. 1001, 1051–52 (2004) (“[D]ecisions by the [P]resident to wage war could not be
undertaken without first benefiting from the deliberative insights of a legislative assembly . . . .”).
102. Cf. John Hart Ely, Suppose Congress Wanted a War Powers Act That Worked, 88 COLUM. L.
REV. 1379, 1386 (1988) (noting that, although the “original understanding” of the Framers is often
unclear, there is a clear consensus as to the Framers’ intent in drafting the various branches’ war
powers: “all wars, whether declared or undeclared, had to be legislatively authorized”).
103. See MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 80–81 (1990) (noting that the
delegates at the Philadelphia Convention expressed a strong distrust of an Executive with the power
of war (citing 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 317 (Max Farrand ed., Yale
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Prior to the enactment of the Constitution, state level commanders in
chief apparently never conceived they had exclusive military discretion.104
Almost all states delegated directing, but not initiating, war efforts to
executive officials.105 Between 1776 and 1787, eight states adopted new
constitutions, and seven of the eight states incorporated virtually every
ponderable rule to subordinate the Executive thoroughly.106
Records of the Constitutional Convention demonstrate that the Framers
distrusted military power, sought to ensure the military remained ultimately
civilian controlled, and rejected the British war powers model.107 The
Declaration of Independence asserted that one of King George’s
detractions was he “affected to render the Military independent of and
superior to the Civil power.”108 The British did not have a constitution
that bound the throne and assuredly lacked norms that would manacle the
monarchy’s control over the military during the American Revolution.109
Henry Bracton explained that the “king[] ruled by divine right” with “no
equal within his realm” and was obligated to “control[] those who would
University Press rev. ed. 1957) (1911))); LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND
FOREIGN AFFAIRS 26 (1990) (“The President’s designation as Commander in Chief . . . appears to
have implied no substantive authority to use the armed forces, whether for war (unless the United
States were suddenly attacked) or for peacetime purposes, except as Congress directed.”); 2 JOSEPH
STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES §§ 1168–69 (1833)
(expressing that Congress has the exclusive power to declare war); 2 RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 318 (Max Farrand ed., Yale University Press rev. ed. 1966) (1911) (stating
that the Founding Fathers only gave the Executive the power to defend the United States against
sudden attacks, not to commence a war).
104. See Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87
TEX. L. REV. 299, 370 (2009) (describing the general consensus prior to the Constitution that all
commanders in chief “[were] subject to direction by . . . superior commanders in chief, state
legislatures, or the Continental Congress”).
105. THE FEDERALIST NO. 74 (Alexander Hamilton).
106. E.g., ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER:
THE ORIGINS 17 (1976) (“Of the eight states adopting constitutions between 1776 and 1778, all but
New York’s ‘included almost every conceivable provision for reducing the executive to a position of
complete subordination.’” (quoting CHARLES C. THATCH, JR., THE CREATION OF THE
PRESIDENCY, 1775–1789: A STUDY IN CONSTITUTIONAL HISTORY 28 (1923))).
107. Reid v. Covert, 354 U.S. 1, 23–30 (1957).
108. THE DECLARATION OF INDEPENDENCE para. 14 (U.S. 1776).
109. See Eric A. Posner, Kathryn E. Spier & Adrian Vermeule, Divide and Conquer, Harvard
Discussion Paper No. 639 (Nov. 2009), at 23, 25 (noting that there were constitution-like norms, but
they were a “byproduct of executive corruption, effected through divide and conquer tactics,” and
the Crown “offered in-kind bribes in the form of official posts and sinecures” to achieve compliance
from other government officials).
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rise in revolt and disturb the peace of the realm.”110 The King’s
prerogative was “rooted in and [sprung] from the [K]ing’s political
person,” and foreign affairs, war-making, military direction, and treatymaking were “rights and capacities which the king enjoys alone.”111 It
was from the context of Americans finally extirpating British soldiers from
American shores during long, imbrued battles that the Framers aspired to
avoid another tyrannical executive from emerging.112
The Framers jettisoned the King’s monopolization over foreign affairs,
initiating war making treaties, and bestowing these powers on elected
representatives.113 The Framers carefully considered aspects of the
British model, disregarded them, and thereby delivered an original
American system of government and politics.114 Fisher wrote, “Scrutinize
the U.S. Constitution as carefully as you like and you will not find a single
one of [the King’s] prerogatives assigned to the President.”115 James
110. See Robert F. Blomquist, American National Security Presiprudence, 26 QUINNIPIAC L. REV.
439, 442–43 (2008) (quoting FORREST MCDONALD, THE AMERICAN PRESIDENCY: AN
INTELLECTUAL HISTORY 14–15 (1994)). The king was required to have “will and discretion” under
the law to meet “the sudden emergence of national distress.” Id.
111. 2 WILLIAM BLACKSTONE, COMMENTARIES *239–40. There were some restrictions.
“The English charter said that ‘levying money for or to the use of the Crown[] by pretence of
prerogative without grant of [Parliament] for longer time or in other manner th[a]n the same is or shall
be granted is illegal.’” Charles Tiefer, Can Congress Make a President Step Up a War?, 71 LA. L. REV.
391, 404 (2011) (quoting Bill of Rights, 1 W. & M., sess. 2, c. 2 (1689) (U.K.)).
112. See Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State,
89 COLUM. L. REV. 452, 517–18 (1989) (“When the colonists declared their independence from
England, the preeminent focal point of their discontent was the unchecked power of the [E]xecutive
. . . . The determination to avoid executive supremacy became the ‘loadstar’ of the new American
political theory.”); Brian Logan Beirne, Note, George vs. George vs. George: Commander-in-Chief Power, 26
YALE L. & POL’Y REV. 265, 281–85 (2007) (recalling the great hesitancy the Continental Congress
had in allowing George Washington to raise a standing army during the Revolutionary War); Samuel
W. Cooper, Note, Considering “Power” in Separation of Powers, 46 STAN. L. REV. 361, 367 (1994)
(concluding the Founders’ distrust of the Executive was a direct result of their fight for independence
from “a government they viewed as both unrepresentative and oppressive”).
113. Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1201
(2006).
114. 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 64–66 (Max Farrand ed., Yale
University Press rev. ed. 1966) (1911). Delegates at the Philadelphia convention patently rejected the
British model of government. Id.; see also Louis Fisher, Testimony Before the Senate Judiciary Committee,
Subcommittee on the Constitution, Civil Rights, and Property Rights, Applying the War Powers Resolution to the
War on Terrorism, 107th Cong. 16 (2002) (statement of Louis Fisher, Senior Specialist in Separation of
Power, Cong. Research Serv., Library of Cong., Washington, D.C.) (“The [F]ramers studied this
monarchical model and repudiated it in its entirety . . . . The rejection of the British model and
monarchy could not have been more complete . . . . It is enough to look at the plain text of the
Constitution.”).
115. Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1202
(2006).
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Wilson emphasized that he “did not consider the Prerogatives of the
British Monarch as a proper guide in defining the [e]xecutive powers.
Some of the[] prerogatives were of a Legislative Nature,” particularly those
“of war [and] peace.”116
During the Constitutional Convention, Pierce Butler and Charles
Pinckney raised the question of permitting the President to initiate war,
but the members of the Convention patently rejected the proposal.117
Former Congresswoman Elizabeth Holtzman explained that the Framers
“were not wimps or pacifists . . . . [T]hey understood that executives were
most likely to take their countries into foolhardy and costly military
adventures . . . . They specifically intended to make it harder to take the
country to war without substantial justification.”118 Professor Prakash
underscored:
[N]o one in the nation’s early years—not even Alexander Hamilton—
claimed that the President could declare war. Though numerous nations—
including France, Tripoli, and various Indian tribes—declared war against
the United States in formal and informal ways, presidents never believed that
they could declare war in retaliation. They understood that only Congress
116. 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 65–66 (Max Farrand ed., Yale
University Press rev. ed. 1966) (1911).
117. See EDWARD KEYNES, UNDECLARED WAR: TWILIGHT ZONE OF CONSTITUTIONAL
POWER 35 (1982) (suggesting that rather than giving the President power to declare war, the Framers
instead gave the President the power to repel sudden attacks); 1 RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 92 (Max Farrand ed., Yale University Press rev. ed. 1966) (1911)
(reporting that Butler stated a plural Executive might need to delegate authority “to direct . . . military
operations”); THE DEBATES IN THE FEDERAL CONVENTION OF 1787 WHICH FRAMED THE
CONSTITUTION OF THE UNITED STATES OF AMERICA: REPORTED BY JAMES MADISON 418
(Gaillard Hunt & James Brown Scott eds. 1920) (opposing the vesting of the war power in the
legislature, because legislative “proceedings were too slow” and would “meet but once a year”);
Jonathan T. Menitove, Note, Once More Unto the Breach: American War Power and a Second Legislative
Attempt to Ensure Congressional Input, 43 U. MICH. J.L. REFORM 773, 776 (2010) (explaining that Butler
and Pinckney received strong opposition to their proposal of “vesting the power in the President” to
wage war). Before the Senate Judiciary Committee, Louis Fisher testified:
If the [F]ramers had indeed adopted ‘the traditional British approach to war powers,’ they would
have written Article II to give the President the power to declare war, to issue [L]etters of
[M]arque and reprisal, and to raise armies, along with other powers of external affairs that are
reserved to Congress.
Louis Fisher, Testimony Before the Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights,
and Property Rights, Applying the War Powers Resolution to the War on Terrorism, 107th Cong. 16 (2002)
(statement of Louis Fisher, Senior Specialist in Separation of Power, Cong. Research Serv., Library of
Cong., Washington, D.C.); Stuart Streichler, Mad About Yoo, or, Why Worry About the Next
Unconstitutional War, 24 J.L. & POL. 93, 107 (2008) (“Pierce Butler was the only one to say something
in favor of giving the [P]resident the power to decide on war.”).
118. Hon. Elizabeth Holtzman, Abuses of Presidential Power: Impeachment As a Remedy, 62 U.
MIAMI L. REV. 213, 218–19 (2008).
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could do so . . . . Early scholars, politicians, and successive Congresses
agreed that presidents could not declare (and therefore could not take the
nation to) war.119
D. Congressionally-Parameterizing Executive Action Versus Commander in Chief
Discretion During an Authorized Military Confrontation
1. Framers’ General Statements
After Congress declares war or authorizes the use of force, the
President is empowered to “direct the conduct of campaigns.”120
Alexander Hamilton noted in Federalist No. 69 that the Commander in
Chief’s power to conduct offensive military action flows from Congress:
The President is to be [Commander in Chief] of the army and navy of the
United States. In this respect his authority would be nominally the same
with that of the [K]ing of Great Britain, but in substance much inferior to it.
It would amount to nothing more than the supreme command and direction
of the military and naval forces, as first General and admiral of the
Confederacy; while that of the British [K]ing extends to the declaring of war
and to the [raising] and [regulating] of fleets and armies, all which, by the
Constitution under consideration, would appertain to the legislature.121
2. Rationale for Having a Single Military Commander
The Framers selected a unitary executive model in as much as the term
denotes situating executive power within the dominion of one individual,
rather than a plurality of executive officials.122 Accordingly, the President
is elected “by the people or by an electoral college,”123 as differentiated
from parliamentary systems in which members select executive officials to
administer bureaucracies on behalf of the lawmakers.124 The Founders’
119. Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX.
L. REV. 299, 314–15 (2008) (citations omitted).
120. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 766 (2008) (quoting Hamdan
v. Rumsfeld, 548 U.S. 557, 592 (2006)).
121. THE FEDERALIST NO. 69 (Alexander Hamilton).
122. See Michael Sevi, Original Intent, Timetables, and Iraq: The Founders’ Views on War Powers, 13
TEX. REV. L. & POL. 73, 86–88 (2008) (referencing debates of several delegates who spoke of vesting
the executive power in an individual).
123. Id. at 88 (quoting ABRAHAM H. SOFAER, WAR, FOREIGN AFFAIRS AND
CONSTITUTIONAL POWER 29 (1976)).
124. E.g., 1958 CONST., arts. 5–19 (Fr.) (amended 2000) (describing the French parliamentary
system); see also WILLIAM G. ANDREWS, PRESIDENTIAL GOVERNMENT IN GAULLIST FRANCE: A
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use of “unitary” did not appertain to initiating hostilities or to expanding
executive authority relative to the legislature.125 Unfortunately, the term
“unitary” has recently been appropriated to maintain that the Framers
intended to grant the Executive expansive war power authority to the
point that legislative encroachment was impermissible.
Professor Robert Spitzer remarked, “The phrase ‘unitary executive’ was
derived from references in the Federalist Papers to ‘unity’ in the
executive.”126 Spitzer further explicated that the contorted, contemporary
unitary executive theory aspires to expand executive power, “cherry-picks
its evidence, often misrepresents the historical record, . . . ignores
pertinent literature,” and “is an honest reading of the Constitution only if
the reader is standing on his or her head at the time.”127 Inverted
advocates would be accurate in contending the Framers strove to guard
against legislative encroachments of presidential power,128 but the
Framers also reasoned that unity in the Executive would auspiciously
constrict presidential power because anything other than a single President
might lead to responsibility shirking. Alexander Hamilton wrote that “one
of the weightiest objections to a plurality in the Executive . . . is that it
tends to conceal faults and destroy responsibility . . . . [T]he multiplication
of the Executive adds to the difficulty of detection in either case.”129
The Framers did address a unitary executive within the lexicon of war
powers, but did so to accentuate that a single leader would foster efficient
military action during a congressionally authorized war and that he or she
could swiftly defend the nation in the event of an attack.130 The
STUDY OF EXECUTIVE-LEGISLATIVE RELATIONS 1958–1974, at 32 (1982) (concluding that the
framers of the French Constitution intended the resulting government to take a parliamentary form).
125. See Jonathan T. Menitove, Note, Once More Unto the Breach: American War Power and a Second
Legislative Attempt to Ensure Congressional Input, 43 U. MICH. J.L. REFORM 773, 778 (2010) (recounting
that, at the Federal Convention of 1787, both John Rutledge and James Wilson desired to create an
effective single executive, but were mindful that the unitary executive should not be given too great a
prerogative).
126. Robert J. Spitzer, Bush, the Post-Bush Presidency, and the Constitutional Order, Presentation at
the Ann. Meeting of the Am. Political Sci. Assoc., Toronto, Can. (Sept. 3, 2009), at 9, 12, available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1450695 (citing Jeffrey Rosen, Power of One:
Bush’s Leviathan State, THE NEW REPUBLIC, July 24, 2006, at 8).
127. Id. at 12, 15.
128. RALPH KETCHAM, THE ANTI-FEDERALIST PAPERS AND THE CONSTITUTIONAL
CONVENTION DEBATES 159 (1986); accord THE FEDERALIST NO. 71 (Alexander Hamilton) (writing
that to uphold separation of powers, the executive as an institution would not be “dependent on the
legislative body” even if it is required to be “subordinate to the laws” adopted by the legislature).
“We have seen that the tendency of republican governments is to an aggrandizement of the
legislative at the expense of the other departments.” THE FEDERALIST NO. 49 (James Madison).
129. THE FEDERALIST NO. 70 (Alexander Hamilton).
130. See JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at
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preexisting system governed by the Articles of Confederation did not
establish any executive authority,131 which made conducting war
unwieldy.132 The Continental Congress appointed a military command,
removed dissatisfactory commanders in chief, and directed military
activities.133
Congress was not an efficient decision-maker for
prosecuting war;134 therefore, the Framers discerned that one authority
should conceive military strategy and issue directives.135 At the North
Carolina debates, James Iredell explained, “[T]he command of armies
ought to be delegated to one person only. The secrecy, [dispatch], and
decision, which are necessary in military operations, can only be expected
from one person.”136 Hamilton further expressed:
475–76 (1987) (recounting a preference that the legislature maintain the power to declare war, but
emphasizing the importance that the Executive be able to react more quickly than the legislature “to
repel sudden attacks”).
131. E.g., Charles J. Cooper et al., What the Constitution Means by Executive Power, 43 U. MIAMI L.
REV. 165, 170 (1988) (“The Articles of Confederation established no executive authority at all.”).
132. ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE
ORIGINS 21–24 (1976).
133. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 767 (2008); see Saikrishna
Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L. REV. 299, 369–70,
380–81 (noting that “[u]nder the Articles of Confederation, Congress could appoint all military
officers” as well as dispose of them, as they did with Commodore Ezek Hopkins, because Congress
was dissatisfied with his service).
134. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 778 (2008); Brian Logan
Beirne, Note, George vs. George vs. George: Commander-in-Chief Power, 26 YALE L. & POL’Y REV. 265,
284–85, 291 (2007).
135. See Allan Ides, Congressional Authority to Regulate the Use of Nuclear Weapons, in FIRST USE OF
NUCLEAR WEAPONS: UNDER THE CONSTITUTION, WHO DECIDES? 70 (Peter Raven-Hansen ed.
1987) (“[W]ith respect to . . . military affairs, Congress may create an army or decline to do so;
Congress may fund a weapons system or ban basic research on that system; Congress may declare
war or refuse to so declare.”). Furthermore, “Congress may select any means it deems appropriate to
accomplish the ends it desires so long as those ends are consistent with the vast array of powers and
procedures granted to the national government”. Id.
136. The Debates in the Convention of the State of North Carolina, on the Adoption of the
Federal Constitution (July 28, 1788), in 4 THE DEBATES IN THE SEVERAL CONVENTIONS, ON THE
ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL
CONVENTION AT PHILADELPHIA, IN 1787, at 107 (Jonathan Elliot, ed., William S. Hein & Co., Inc.
1996) (1836).
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Of all the cares or concerns of government, the direction of war most
peculiarly demands those qualities which distinguish the exercise of power
by a single hand. The direction of war implies the direction of the common
strength; and the power of directing and employing the common strength
forms a usual and essential part in the definition of the executive
authority.137
The Framers’ contextual meaning for “Commander in Chief” should be
emphasized. The Framers’ experience with a commander in chief was
with the success of George Washington as a general in the field during the
American Revolution.138 In 1775, the Continental Congress appointed
George Washington both “General and Commander in [C]hief of the
army of the United Colonies,” and affirmed that he was to “follow such
orders and directions, from time to time, as [he] shall receive from this, or
a future Congress,” but that wartime exigencies required commissioning
discretion.139 In accordance with this appointment, Congress authorized
some and denied other various aspects of Washington’s military command
during the Revolutionary War.140 However, endowed was General
Washington with an extraordinary pre-constitutional and personal
discretion by resolution that was distinct to the American Revolution.141
It would be malapropos to presume this discretion was inherent in the title
“Commander in Chief.”
Consistent with this experience with General Washington, the
Constitution affirms that Congress authorizes war while the President
presides over the armed forces and directs war efforts as a tacit general.
Early congressional records even referred to the President’s role as a
“general, a commander in chief in the field.”142 After he was elected,
President Washington recognized that “[t]he Constitution vests the power
of declaring war with Congress; therefore no offensive expedition of
137. THE FEDERALIST NO. 74 (Alexander Hamilton); see Boumediene v. Bush, 553 U.S. 723,
770 (2008) (noting the question of the legality of a detention facility turned on the fact that the
facility was “located in an active theater of war”).
138. See, e.g., AKHIL REED AMAR, AMERICA’S CONSTITUTION 197 (2005) (“[M]ost Founders
looked forward to the leadership of George Washington.”).
139. 2 JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at 96 (1775); see also 6
JOURNALS OF THE CONTINENTAL CONGRESS 1774–1789, at 1027 (1776) (“[U]ntil Congress shall
otherwise order, General Washington [shall] be possessed of the full power to order and direct all
things relative to the department, and to the operations of war.”).
140. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 774–77 (2008).
141. See id. at 778–79 (stating the Continental Congress’s delegation of power to an executive
was a consequence of its particular confidence in the character of George Washington).
142. CONG. GLOBE, 37th Cong., 2d Sess. 2930 (1862).
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importance can be undertaken until after they shall have deliberated upon
the subject, and authorized such a measure.”143 Granted, contemporary
presidents are not “in the field,” and largely only sanction major military
operations developed by appointed military commanders.144 Advanced
technology, sophisticated operations, military specialization, and the
delegation doctrine evince that modern presidents do not develop or
initiate military strategy.145 Given the dearth of direct presidential
involvement in modern military operations compared to past presidents,
the courts should not expand modern executive war powers for arbitrary
reasons.
3. Self-Defense
A second reason for preferring a single leader to command the armed
forces is that Congress might not be in session when an expeditious
decision is necessary to fend off an unanticipated attack on the United
States.146 The President’s obligation to defend the nation after an attack
is a reflex action substantiated by other provisions of the Constitution and
need not be viewed purely as a war power.147 James Madison emphasized
that the President may unilaterally exercise military force “to repel sudden
attacks” and that any other use of force required congressional
approval.148 Thus, when early presidents ordered the use of force without
143. Letter from George Washington to Governor William Moultrie (Aug. 28, 1793), in 33 THE
WRITINGS OF GEORGE WASHINGTON FROM THE ORIGINAL MANUSCRIPT SOURCES 1745–1799, at
73 (John C. Fitzpatrick ed., 1940); see 4 TERRITORIAL PAPERS OF THE UNITED STATES 221
(Clarence Edwin Carter ed., 1936) (“[President Washington] does not conceive himself authorized to
direct offensive operations . . . . If such measures are to be pursued they must result from the
decisions of Congress who solely are vested with the powers of War.”).
144. See 10 U.S.C. § 163 (2006) (creating a chain of command reaching up the military ranks
and ending with the Joint Chiefs of Staff who report to the President).
145. See generally id. § 111 (prescribing a hierarchy of strategic planning that, while ultimately
falling to the President as the final ultimate decision-maker in the chain of command, involves a
plurality of agents who develop and initiate military strategy); David J. Barron & Martin S. Lederman,
The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original Understanding, 121
HARV. L. REV. 689, 706–08 (2008) (expressing that reports created by the CIA and Department of
Defense in response to the 9/11 attacks influenced the President’s approach to war strategy).
146. 2 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 318–19 (Max Farrand ed., Yale
University Press rev. ed. 1966) (1911); see also EDWARD KEYNES, UNDECLARED WAR: TWILIGHT
ZONE OF CONSTITUTIONAL POWER 32 (1982) (describing the discussion that took place before an
eight-to-one vote to allow the President the power to repel sudden attacks without the express
blessing of Congress).
147. See U.S. CONST. pmbl. (providing “for the common defense”); id. art. II, § 2 (establishing
that the President must “defend the Constitution of the United States”).
148. JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at 476
(1987).
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congressional approval, these actions typically initiated defense-oriented
operations.149
For example, Presidents addressed skirmishes involving non-state
targets when fighting pirates, thwarting unauthorized vessels off the coast,
and repelling cattle rustlers on the Mexican border.150 In a specific
example, President Jefferson directed a modest band of Navy ships to
chaperone American commercial vessels defensively during the
Mediterranean conflict before Congress authorized the Navy to use
force.151 Jefferson acknowledged that he lacked authority for offensive
military measures152 and requested congressional authorization to engage
in hostilities with the Barbary pirates.153 By drastic comparison, after
9/11, the Bush Administration interpreted the September 2001
Authorization to Use Military Force as conceiving a so-called “war on terror”
that supposedly spanned the world154 and as constituting a perceived
expansive exigency in self-defense that permitted bypassing sovereign
jurisdiction.155 That perception is faulty.
E. Partial or Full Hostilities and Congressional Parameters on Military Command
1. Congressional Ability to Set Parameters, Including Partial
Hostilities
Throughout the nineteenth and most of the twentieth centuries,
government officials and scholars fully concurred that the President could
149. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—
Framing the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 744–47 (2008) (stating
that past Presidents used the war power because they needed to act quickly to defend the nation).
150. Louis Fisher, The Law: Scholarly Support for Presidential Wars, 35 PRES. STUD. Q. 590, 591
(2005) (quoting Edward S. Corwin, The President’s Power, NEW REPUBLIC, Jan. 29, 1951, at 16).
151. EDWARD KEYNES, UNDECLARED WAR: TWILIGHT ZONE OF CONSTITUTIONAL POWER
38–39 (1982).
152. Id. at 38.
153. See 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, at 327
(James D. Richardson ed., 1896) (noting the warships sent by President Jefferson were constrained to
a defensive posture and did not engage enemy ships beyond protective measures).
154. Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001); see
Robert Bejesky, Cognitive Foreign Policy: Linking Al Qaeda and Iraq, 56 HOW. L.J. (forthcoming 2012)
(discussing the post-9/11 perceptions of worldwide terrorist organizations and the generalization of
the enemy in the war as worldwide terrorism itself, as opposed to an identifiable person, entity, or
group).
155. See WHITE HOUSE, THE NATIONAL SECURITY STRATEGY OF THE UNITED STATES OF
AMERICA 15 (2002) (“To forestall or prevent such hostile acts by our adversaries, the United States
will, if necessary, act preemptively.”).
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not wage war beyond the terms of congressional approval.156 Inherent in
Congress’s power to declare war, legislate, and appropriate funds,
Congress can devise time and scope parameters with regards to
combat.157 Chief Justice Marshall explained that because Congress
possesses “[t]he whole powers of war[,] . . . [C]ongress may authorize
general hostilities, in which case the general laws of war apply to our
situation; or partial hostilities.”158 In Miller v. United States,159 the
Supreme Court held that Congress’s power to declare war includes “the
power to prosecute it by all means and in any manner in which war may be
legitimately prosecuted.”160 The Framers specified that Congress could
be involved in operational military affairs during confrontation and impose
restrictions and directives on the President,161 but they also understood
that executive discretion in directing war efforts once Congress authorizes
156. See CONG. GLOBE, 37th Cong., 2d Sess. 1784 (1862) (noting Senator John Sherman’s
remark that the President could engage in war “only in the manner and in the mode we may
prescribe by law”); 1 LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW §§ 4–6, at 665 (3d
ed. 2000) (“[The President] must respect any constitutionally legitimate restraints on the use of force
that Congress has enacted.”); Won Kidane, The Status of Private Military Contractors Under International
Humanitarian Law, 38 DENV. J. INT’L L. & POL’Y 361, 373 (2010) (“The President, as the
[Commander in Chief] of the armed forces is responsible for the ‘faithful’ execution of the laws.”
(citing U.S. CONST. art. II, §§ 1–3)); Jules Lobel, Conflicts Between the Commander in Chief and Congress:
Concurrent Power over the Conduct of War, 69 OHIO ST. L.J. 391, 425, 438 (2008) (asserting Congress’s
power over war power decisions); Peter M. Shane, Learning McNamara’s Lessons: How the War Powers
Resolution Advances the Rule of Law, 47 CASE W. RES. L. REV. 1281, 1281 (1997) (noting that the
ultimate question in war powers is to “[w]hom does the Constitution authorize to commit United
States troops to military hostilities?”).
157. See Ex parte Milligan, 71 U.S. 2, 136–37 (1886) (holding that Congress can limit how a war
is prosecuted); Bas v. Tingy, 4 U.S. 37, 43 (1800) (opinion of Chase, J.) (“Congress is empowered to
declare a general war, or [C]ongress may wage a limited war; limited in place, in objects, and in
time.”); THE FEDERALIST NO. 75 (Alexander Hamilton) (“[I]t would be utterly unsafe and improper
to [entrust] that [war-making] power to an elective magistrate of four years’ duration . . . . [It would
not be] wise in a nation to commit interests . . . with the rest of the world[] to the sole disposal of . . .
a President of the United States.”). Congress has the right to proscribe parameters of the
authorization, including for “general” or “partial” hostilities. 2 JOSEPH STORY, COMMENTARIES ON
THE CONSTITUTION OF THE UNITED STATES: WITH A PRELIMINARY REVIEW OF THE
CONSTITUTIONAL HISTORY OF THE COLONIES AND STATES BEFORE THE ADOPTION OF THE
CONSTITUTION § 1169 (Mellville M. Bigelow ed., 5th ed. 1891) (1833); see also Curtis A. Bradley &
Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2048, 2073–
74 (2005) (listing limited authorizations to control the Indian population, occupy Florida, protect
fisheries, and thwart the slave trade and piracy).
158. Talbot v. Seeman, 5 U.S. 1, 28 (1801).
159. Miller v. United States, 78 U.S. 268 (1870).
160. Id. at 305.
161. See Saikrishna Bangalore Prakash, Exhuming the Seemingly Moribund Declaration of War, 77
GEO. WASH. L. REV. 89, 130 (2008) (“If Congress requires the President to wage war, the President
must both wage the war that Congress declared and adhere to the restrictions on the use of military
force contained in the declaration.”).
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war was preferable162 because Congress was ill-equipped to make strategic
military decisions.163 However, Congress frequently institutes conditions
and regulations on combat operations.164
Professor Prakash wrote, “Congresses dictated where warships might
sail in wartime, how soldiers would march and fire arms, crew composition
on vessels, and the appropriate enemy targets in wartime . . . .
Commanders in Chief saluted smartly, consistently deferring to Congress
and
never
doubting
the
constitutionality
of
legislative
micromanagement.”165 Professor Lobel remarked:
162. The President is “authorized to have ‘the direction of war when authorized or begun.’”
LOUIS FISHER, PRESIDENTIAL WAR POWER 5 (2d rev. ed. 2004); see David J. Barron & Martin S.
Lederman, The Commander in Chief at the Lowest Ebb—Framing the Problem, Doctrine, and Original
Understanding, 121 HARV. L. REV. 689, 778 (2008) (describing Congress’s realization that strict
legislative control “was not the most efficient way to prosecute a war” and noting the importance of
delegating “substantial discretion to [the Executive] so as to relieve him of the constant need to seek
out advance authorization”).
163. CONG. GLOBE, 37th Cong., 2d Sess. 2930 (1862); see also Jules Lobel, Conflicts Between the
Commander in Chief and Congress: Concurrent Power over the Conduct of War, 69 OHIO ST. L.J. 391, 442,
460–61 (2008) (referencing the 1980 opinion by Assistant Attorney General Harmon that affirmed
the right of Congress to impose time limits for the use of troops in hostilities and also recognizing
that “Congress may regulate the President’s exercise of his inherent powers by imposing limits by
statute” (quoting 4A Op. Off. Legal Counsel 185, 196 (1980))).
164. See Act of May 28, 1798, ch. XLVIII, 1 Stat. 561 (1798) (referring to congressional
authorizations to permit the President to use force against armed French vessels); Jules Lobel,
Conflicts Between the Commander in Chief and Congress: Concurrent Power over the Conduct of War, 69 OHIO ST.
L.J. 391, 436–37 (2008) (recognizing that the Supreme Court upheld the Confiscation Act, which
enabled Congress to direct the President’s war power to seize property of participants in the Civil
War (citing the Second Confiscation Act, ch. 195, 12 Stat. 589 (1862))); id. at 441 (giving a modern
example of Congress’s restrictive parameters on introducing American troops in Lebanon); Peter
Raven-Hansen & William C. Banks, Pulling the Purse Strings of the Commander in Chief, 80 VA. L. REV.
833, 911–12 (1994) (describing congressional restrictions via constraints on uses of congressional
budget riders that prevented the President from using the military to pursue Vietnamese troops into
Cambodia, Laos, and Thailand during the Vietnam War). Likewise, it was the power of the purse
strings that permitted Congress to end the Vietnam War. H.R.J. Res. 636, 93d Cong. (1973). In
1993, Congress placed limits on President Clinton’s use of armed forces in Somalia. Jules Lobel,
Conflicts Between the Commander in Chief and Congress: Concurrent Power over the Conduct of War, 69 OHIO ST.
L.J. 391, 442 (2008). As part of the debates concerning congressional authorization for President
Clinton’s 1999 bombing operations in Yugoslavia, “Congress overwhelmingly agreed that it had the
authority to limit the manner and means by which the President can conduct ongoing military
campaigns.” Id. at 442–44.
165. Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX.
L. REV. 299, 303 (2008). Congress enacted statutes and espoused policies to restrict management
over the military and prescribed how to conduct hostilities. See David J. Barron & Martin S.
Lederman, The Commander in Chief at the Lowest Ebb—A Constitutional History, 121 HARV. L. REV. 941,
957 (2008) (noting that “[t]he comprehensive statute of 1790 providing for a permanent military
establishment is the most telling example” of congressional micromanagement over war powers).
Presidents honored such guidelines. Id. at 958.
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Twentieth century Congresses continued to exercise their authority to
limit the President’s conduct of authorized hostilities. Congress has
regulated in minute detail the manner in which armed forces may be
deployed, enacted detailed rules governing the conduct of those forces, set
forth rules of engagement, authorized the President to conduct hostilities
limited in geographic scope, time, the type and number of forces that could
be used, and the objects and purposes for which force could be used.166
For example, in analyzing a confrontation between United States and
French vessels, Justice Chase cited congressional statutes and specified
that “[C]ongress [had authorized] hostilities on the high seas,” but did not
endow the President with authority “to commit hostilities on land[,] to
capture unarmed French vessels, nor even capture French armed vessels
lying in a French port.”167 The Executive has no unilateral constitutional
authority to initiate particular forms of hostility, and Congress could
prevent deployment of the military outside United States borders even
when hostilities are not clearly expected.168
2. The President Has No Preclusive Power to Initiate Offensive
Measures
The Constitution does not empower the President to initiate war;169
therefore, executive unilateralism was historically eschewed. Writing for a
unanimous Court in 1804, Chief Justice Marshall prohibited the President
from deploying Navy vessels into hostilities because of a statute restricting
that action.170 In United States v. Smith,171 the New York Circuit Court
166. Jules Lobel, Conflicts Between the Commander in Chief and Congress: Concurrent Power over the
Conduct of War, 69 OHIO ST. L.J. 391, 438 (2008).
167. Bas v. Tingy, 4 U.S. 37, 43 (1800) (Chase, J.) (emphasis omitted).
168. If the President elected to deploy the Navy, but Congress chose to forbid deployment,
congressional legislation would prevail. Geoffrey Corn, Triggering Congressional War Powers Notification:
A Proposal to Reconcile Constitutional Practice with Operational Reality, 14 LEWIS & CLARK L. REV. 687, 698
(2010) (“First, with the exception of the use of the armed forces to respond to a sudden attack,
Congress is vested with the authority to authorize, and by implication prohibit, war. Second, if
Congress chooses to prohibit or terminate war, it must do so unequivocally and explicitly.” (citing
Geoffrey S. Corn, Presidential War Power: Do the Courts Offer Any Answers?, 157 MIL. L. REV. 180, 252
(1998))).
169. See The Prize Cases, 67 U.S. 635, 668 (1862) (“[The President] has no power to initiate or
declare a war either against a foreign nation or a domestic State.”); 15 ANNALS OF CONG. 19 (1805)
(reporting that President Jefferson stated, “Congress alone is constitutionally invested with the power
of changing our condition from peace to war”); CONG. GLOBE, 37th Cong., 2d Sess. 2966 (1862)
(voicing the position of Republican senators, Senator Sumner remarked: “Congress may make all
laws to regulate the duties and the powers of the [Commander in Chief of the Army]”); 1 JAMES
KENT, COMMENTARIES ON AMERICAN LAW *55 (8th ed. 1878) (“[W]ar cannot lawfully be
commenced on the part of the United States, without an act of Congress . . . .”).
170. Little v. Barreme, 6 U.S. 170, 177–78 (1804).
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held that “[t]he [P]resident of the United States cannot control the statute,
nor dispense with its execution, and still less can he authorize a person to
do what the law forbids . . . . [War] power is exclusively vested in
[C]ongress.”172 In the 1880s, Britain requisitioned the United States to
provide military assistance to attack China; the United States Secretary of
State replied that such a request lay at the discretion of Congress, thereby
affirming the President had no authority to issue an order for offensive
military action because “the war-making power of the United States was
not vested in the [P]resident, but in [C]ongress.”173
Professor Prakash wrote, “[N]o one from the Founding Era claimed
that the [e]xecutive power granted the President additional military powers
beyond those implicit in the title Commander in Chief.”174 Additionally,
“Professor Sofaer found no instance of any President in the classical
period making the claim so common in our own day that Presidents have
inherent power to initiate military actions.”175 Highly-regarded Presidents,
such as Washington, Lincoln, and the Roosevelts, did not assert preclusive
executive war powers,176 and aside from one ambivalent anomaly during
the Fillmore Administration, no Executive argued for preclusive authority
throughout the entire pre-Civil War period.177
A noteworthy example of congressional reaction to executive
unilateralism comes from the Polk Administration (1845–1849). President
Polk deployed troops to the disputed territory along the border between
Texas and Mexico.178 After a military exchange between American and
Mexican forces, the President declared to Congress that Mexico “has
invaded our territory and shed American blood upon the American
171. United States v. Smith, 27 F. Cas. 1192 (C.C.D.N.Y. 1806) (No. 16,342).
172. Id. at 1230.
173. Chae Chan Ping v. United States, 130 U.S. 581, 591 (1889); Louis Fisher, Historical Survey of
the War Powers and the Use of Force, in THE U.S. CONSTITUTION AND THE POWER TO GO TO WAR:
HISTORICAL AND CURRENT PERSPECTIVES 19 (Gary M. Stern & Morton H. Halperin eds., 1994).
174. Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX.
L. REV. 299, 372 (2008).
175. Arthur Schlesinger, Jr., Introduction in ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS
AND CONSTITUTIONAL POWER, at xx (1976) (emphasis in original).
176. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 948 (2008).
177. Id. at 952.
178. Polk’s War Message (May 11, 1846), in 5 A COMPILATION OF THE MESSAGES AND
PAPERS OF THE PRESIDENTS, at 2292 (James D. Richardson ed., 1896); see also Louis Fisher, Historical
Survey of the War Powers and the Use of Force, in THE U.S. CONSTITUTION AND THE POWER TO GO TO
WAR: HISTORICAL AND CURRENT PERSPECTIVES 18 (Gary M. Stern & Morton H. Halperin eds.,
1994) (noting that Polk’s actions in ordering troops to occupy the Texas-Mexico border “provoked a
clash between American and Mexican soldiers, allowing Polk to tell Congress . . . that ‘war exists’”).
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soil.”179 Consequently, the President obtained a congressional declaration
of war, though the House of Representatives later censured Polk, because
the conflict was “‘unnecessarily and unconstitutionally begun by the
President of the United States.’”180 Likewise, courts sometimes invalidate
presidential acts in wartime precisely because Congress did not grant the
authority to the President.181
3. Congress Can Circumscribe, but Cannot Interfere, with the
Direction of Military Forces During Combat
Congress constructs the circumstances for confrontation, “brings the
state of war into being,” and accords the President with authority to
execute those objectives through military operations.182 The President
then has the prerogative to serve as Commander in Chief without
substantial congressional interference.183 However, because Congress
possesses expansive war powers through the combined prerogatives of
authorizing the use of force, adopting prescriptive measures, funding
operations, and equipping the military, congressional mandates can overlap
179. Louis Fisher, Historical Survey of the War Powers and the Use of Force, in THE U.S.
CONSTITUTION AND THE POWER TO GO TO WAR: HISTORICAL AND CURRENT PERSPECTIVES 18
(Gary M. Stern & Morton H. Halperin eds., 1994).
180. LOUIS FISHER, PRESIDENTIAL WAR POWER 41–43 (2d rev. ed. 2004) (quoting CONG.
GLOBE, 30th Cong., 1st Sess. 95 (1848)). There may have been an intention to militarily take the
territories. Id. at 40–43; see also Note, Congress, the President, and the Power to Commit Forces to Combat, 81
HARV. L. REV. 1771, 1780 (1968) (inferring that the actions coincided with annexing territories that
became New Mexico, Arizona, and California). In 1847, the United States Army distributed
proclamations about its occupation of Mexico after the Spanish were driven out, which stated:
“Mexicans! Americans are not your enemies; but the enemies, for a time, of the men who, a year
ago, misgoverned you, and brought about this unnatural war between two great Republics. We are
the friends of the peaceful inhabitants of the country we occupy.” David Glazier, Ignorance is Not
Bliss: The Law of Belligerent Occupation and the U.S. Invasion of Iraq, 58 RUTGERS L. REV. 121, 142 (2005)
(quoting Head Quarters of the Army, Proclamation of Apr. 11, 1847). United States General
Winfield Scott’s memoirs explain that the United States Government requested that he force local
contributions to support the United States military presence in Mexico, and he was sufficiently
benevolent to establish a system to raise funds to maintain the Army with a share of the Mexican
Government’s revenue sources. Id. at 143–44.
181. See Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on
Terrorism, 118 HARV. L. REV. 2047, 2051 (2005) (outlining the circumstances of multiple instances,
each occurring in World War II, where the Supreme Court invalidated a number of executive acts
“because they lacked congressional authorization”).
182. Michael Bahar, As Necessity Creates the Rule: Eisentrager, Boumediene, and the Enemy—How
Strategic Realities Can Constitutionally Require Greater Rights for Detainees in the Wars of the Twenty-First
Century, 11 U. PA. J. CONST. L. 277, 282–83 (2009).
183. Derek Jinks & David Sloss, Is the President Bound by the Geneva Conventions?, 90 CORNELL L.
REV. 97, 171–72 (2004) (“[It is] generally agree[d] that the President has exclusive authority over
battlefield operations, and that Congress’s war powers are constrained by the need to avoid
interfering with the President’s [Commander in Chief] power during wartime.”).
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with executive operations in battle.184 There could be ambiguity in what
Congress expressly or impliedly authorizes or precludes;185 it could be
unclear where legislating and policymaking ends and where administering
the law during warfare begins.186 Granted, Congress would assumedly
prefer not to offer tactical military strategy that contravenes presidential
decisions,187 but the Supreme Court has never annulled legislation on the
basis that congressional actions interfered with presidential dominion to
execute military campaigns, so this does not appear to be an issue.188
In 1850, the Supreme Court stated that “[a]s [Commander in Chief],
[the President] is authorized to direct the movements of the naval and
military forces placed by law at his command, and to employ them in the
manner he may deem most effectual to harass and conquer and subdue the
enemy.”189 In 1866, the Court held:
184. See Stephen L. Carter, War Making Under the Constitution and the First Use of Nuclear Weapons,
in FIRST USE OF NUCLEAR WEAPONS: UNDER THE CONSTITUTION, WHO DECIDES? 109, 113
(Peter Raven-Hansen ed. 1987) (“Nothing in the language or structure of the Constitution suggests a
distinction between rules limiting the number of tanks and limiting the theatres of operation.”).
However, “[o]ne might, I suppose, try to argue that restrictions on the number of soldiers or amount
of equipment are limits on what the armed forces shall be; stipulations on where or how these forces
can fight are limits on what the armed forces may do. But that difference—if it is a difference—is
merely semantical.” Id.
185. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism,
118 HARV. L. REV. 2047, 2052 (2005).
186. See id. at 2052–53 (discussing the plurality’s analysis in Hamdi v. Rumsfeld, 542 U.S. 507
(2007), of “Executive Branch practice, judicial precedent, the international laws of war, and the
functional need of preventing enemy combatants from returning to the field of battle” to clarify that
the phrase “all necessary and appropriate force” gave the President power to detain enemy
combatants during war under the Authorization for Use of Military Force).
187. There are hypothetical circumstances where such issues may arise before Congress. For
example, Bradford A. Berenson, former Associate Counsel to George W. Bush, testified to a
congressional committee: “[I]f Congress were to enact a law providing that no American soldier
could be sent into combat without body armor, there would be a strong argument that such an
enactment impermissibly interferes with the Commander in Chief’s discretion to order lightly armed
or lightly equipped troops to proceed by stealth into battle in appropriate circumstances.” Exercising
Congress’s Constitutional Power to End a War: Hearing Before the S. Committee on the Judiciary, 110th Cong. 76
(2007) (Testimony of Bradford A. Berenson).
188. Jules Lobel, Conflicts Between the Commander in Chief and Congress: Concurrent Power over the
Conduct of War, 69 OHIO ST. L.J. 391, 394 (2008).
189. Fleming v. Page, 50 U.S. 603, 615 (1850).
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Congress has the power not only to raise and support and govern armies but
to declare war. It has, therefore, the power to provide by law for carrying on
war. This power necessarily extends to all legislation essential to the
prosecution of war with vigor and success, except such as interferes with the
command of the forces and the conduct of campaigns. That power and duty belong to the
President as [Commander in Chief].190
Further, in 1895, the Supreme Court stated that the Commander in
Chief Clause “vest[s] in the [P]resident the supreme command over all the
military forces—such supreme and undivided command as would be
necessary to the prosecution of a successful war.”191 Additionally, Justice
Jackson expressed that the Commander in Chief power during authorized
military operations “undoubtedly puts the Nation’s armed forces under
Presidential command.”192 Former President William Howard Taft
wrote, “[I]t seems perfectly clear that Congress could not order battles to
be fought on a certain plan, and could not direct parts of the army to be
moved from one part of the country to another.”193 The majority
opinion in Hamdan v. Rumsfeld194 held not only that “Congress cannot
direct the conduct of [United States military] campaigns,”195 but also that
the President lacked expansive discretion over the military tribunal system
specifically because Congress never conferred him or her the authority.196
Assistant Attorney General William Rehnquist, in a memo appertaining
to military incursions into Cambodia during the Vietnam War, advised that
Congress could not attempt to give “detailed instructions as to the use of
American forces already in the field to supersede the President as
[Commander in Chief] of the armed forces.”197 However, Rehnquist also
190. Ex parte Milligan, 71 U.S. 2, 139 (1866) (emphasis added); see also William Howard Taft,
The Boundaries Between the Executive, the Legislative and the Judicial Branches of the Government, 25 YALE L.J.
599, 610 (1916) (stressing Congress’s war powers).
191. United States v. Sweeny, 157 U.S. 281, 284 (1895).
192. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 641 (1952) (Jackson, J.,
concurring); see JAMES HART, THE ORDINANCE MAKING POWERS OF THE PRESIDENT OF THE
UNITED STATES 239–40 (1925) (discussing the overlap of war powers and the difficulty in
distinguishing between Congress’s power to declare war and the President’s power to command the
armed forces during war).
193. William Howard Taft, The Boundaries Between the Executive, the Legislative and the Judicial
Branches of the Government, 25 YALE L.J. 599, 610 (1916).
194. Hamdan v. Rumsfeld, 548 U.S. 557 (2006).
195. Id. at 592.
196. Id. at 636–37, 653.
197. ARTHUR H. GARRISON, SUPREME COURT JURISPRUDENCE IN TIMES OF NATIONAL
CRISIS, TERRORISM, AND WAR: A HISTORICAL PERSPECTIVE 281 (2011) (quoting Memorandum
from William H. Rehnquist, Assistant Att’y Gen., Office of Legal Counsel, to the Hon. Charles W.
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recognized “‘Congress undoubtedly has the power in certain situations to
restrict the President’s power as Commander in Chief to a narrower scope
than it would have had in the absence of legislation.’”198 Professors
Barron and Lederman examined every instance they could find “in which
the President has purportedly asserted or relied upon a claim of preclusive
war powers”199 and concluded:
[Prior to 1950] the evidence of political branch practice points strongly
against conventional assumption of a broader presidential preclusive power
over the conduct of campaigns; regulations of just that authority were
enacted in every era and accepted without constitutional challenge by the
[E]xecutive [B]ranch. Even after 1950, nothing approaching a constitutional
consensus, either among the branches or within the [E]xecutive [B]ranch
itself, has emerged to support the view that the President has the power to
defy statutes that interfere with his preferred manner of prosecuting a
military conflict.200
4. Seizure Cases
Seizure, detention, and trial incidents breed war power controversies.
In Youngstown, President Truman issued an executive order to seize steel
mills during the Korean War and reported the action to Congress, but
Congress never authorized the seizure.201 Truman contended “that a
strike . . . would so endanger the well-being and safety of the Nation that
the President had ‘inherent power’” to seize the mills.202 The Justices
Colson, Special Counsel to the President, Re: The President and the War Power: South Vietnam and
the Cambodian Sanctuaries (May 22, 1970)).
198. Exercising Congress’s Constitutional Power to End a War: Hearing Before the S. Committee on the
Judiciary, 110th Cong. 64 (2007) (quoting Memorandum from William H. Rehnquist, Assistant Att’y
Gen., Office of Legal Counsel, to the Hon. Charles W. Colson, Special Counsel to the President, Re:
The President and the War Power: South Vietnam and the Cambodian Sanctuaries (May 22, 1970)).
199. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 946 (2008).
200. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 697 (2008); see also Louis
Fisher, The Law: Scholarly Support for Presidential Wars, 35 PRES. STUD. Q. 590, 591 (2005) (reporting
that no President asserted authority to initiate major military force prior to the Korean War);
Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L. REV.
299, 368 (2008) (rejecting arguments that the President has exclusive power to control military
operations as unconvincing).
201. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 582–84 (1952).
202. Id. at 582–84; see also MAEVA MARCUS, TRUMAN AND THE STEEL SEIZURE CASE: THE
LIMITS OF PRESIDENTIAL POWER 80–82 (1977) (relaying President Truman’s explanation to the
Union: “We must have steel. We have taken the measures that are required to keep our steel mills in
operation.”).
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unanimously affirmed Congress’s authority to enact legislation regarding
government seizure of industry.203 Three Justices concluded the seizures
were discordant with congressional action,204 and a majority held that
Truman’s undertaking was unconstitutional because Congress prohibited
seizures under a preexisting statute.205
Seizing property of nationals to facilitate war is distinguishable from the
presidential prerogative of taking enemy property during war. In Murray v.
Schooner Charming Betsy,206 the Court affirmed the President’s authority to
capture armed enemy vessels; however, it concluded the Executive had no
power to seize the Charming Betsy because it was not armed.207 Regarding
the executive taking of British property during the War of 1812, Chief
Justice Marshall held that even though laws of war would necessarily
permit confiscation of enemy property, the seizures were unconstitutional
because Congress had not authorized any right to confiscate rival
property.208 The Second Confiscation Act of 1862, adopted during the
Civil War to permit the Executive to seize enemy property,209 gave
President Lincoln statutory authority to impose a blockade that led to the
taking of four neutral vessels.210 In Dames & Moore, the Court confusingly
applied Jackson’s Youngstown framework211 after President Reagan seized
Iranian property in 1980;212 the Court held, without citing legislation, that
the President was authorized to suspend claims during the Iranian hostage
crisis.213
203. Youngstown, 343 U.S. at 588, 603.
204. Id. at 639–40 (Jackson, J., concurring); id. at 659–60 (Burton, J., concurring); id. at 662
(Clark, J., concurring).
205. Id. at 587–89.
206. Murray v. Schooner Charming Betsy, 6 U.S. 64 (1804).
207. See id. at 121 (questioning whether the vessel “in a condition to annoy American
commerce” justified its capture, and further holding that the vessel, which held one musket on board,
was “not sufficient[ly armed] to warrant the capture of her as an armed vessel” (emphasis omitted)).
208. Brown v. United States, 12 U.S. 110, 128–29 (1814).
209. Act of July 17, 1862, cxcv, § 5, 12 Stat. 589, 590; David P. Currie, The Civil War Congress, 73
U. CHI. L. REV. 1131, 1185–86 (2006).
210. The Prize Cases, 67 U.S. 635, 670 (1862).
211. The case created confusion in concurrent powers by “allowing congressional opposition
. . . to be interpreted as congressional silence; or allowing congressional silence . . . to be interpreted
as congressional approval.” Patricia L. Bellia, Executive Power in Youngstown’s Shadows, 19 CONST.
COMMENT. 87, 145 (2002).
212. Dames & Moore v. Regan, 453 U.S. 654, 662–63 (1981).
213. Id. at 686.
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5. Detention and Trial
Detaining and trying enemy soldiers following military action has also
led to disagreements regarding the separation of powers. In In re
Yamashita,214 the Court held:
An important incident to the conduct of war is the adoption of measures . . .
to seize and subject to disciplinary measures those enemies who, in their
attempt to thwart or impede our military effort, have violated the law of war.
The trial and punishment of enemy combatants who have committed
violations of the law of war is thus not only a part of the conduct of war
operating as a preventive measure against such violations, but is an exercise
of the authority sanctioned by Congress to administer the system of military
justice recognized by the law of war.215
In Madsen v. Kinsella,216 the Court further stated:
[The President may] establish and prescribe the jurisdiction and procedure of
military commissions, and of tribunals in the nature of such commissions, in
territory occupied by Armed Forces of the United States. His authority to
do this sometimes survives cessation of hostilities. The President has the
urgent and infinite responsibility not only of combating the enemy but of
governing any territory occupied by the United States by force of arms.217
The Court recently applied these holdings and principles in Hamdi v.
Rumsfeld.218 In that case, Yaser Hamdi, an American citizen, was captured
in Afghanistan and incarcerated as an “enemy combatant.”219 In a
plurality opinion, four Justices believed Congress’s Authorization to Use
Military Force (AUMF) permitted the President to detain enemy
combatants.220 The AUMF sanctioned and allowed the use of “all
necessary and appropriate force” against those who “planned, authorized,
committed, or aided the terrorist attacks” of September 11, 2001;221
however, the Court held that indefinite detentions for interrogations were
prohibited and due process hearings were required to determine the
legitimacy of such detentions.222 All nine Justices agreed the executive
authority to detain an enemy combatant required congressional
214.
215.
216.
217.
218.
219.
220.
221.
222.
In re Yamashita, 327 U.S. 1 (1946).
Id. at 11.
Madsen v. Kinsella, 343 U.S. 341 (1952).
Id. at 348.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (plurality opinion).
Id. at 507–08.
Id. at 516–21.
Id. at 510.
Id. at 509, 521.
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approval,223 but four Justices believed the AUMF did not authorize
detaining Hamdi.224 The plurality held Justice Jackson’s Youngstown
formulation required an explicit and unambiguous “congressional
authorization for the power to detain” to meet the first prong of the
analysis, and that “constitutional due process imposed some constraints on
the exercise of this otherwise lawful power.”225
6. Interpreting Post-Authorization Involvement from Congress
Professor Louis Henkin explained “[t]he Supreme Court has never
declared any limit to the war powers of Congress during war or peace, or
even intimated where such limits might lie.”226 Professors Barron and
Lederman remarked:
[O]ur historical review has shown that the view embraced by most
contemporary war powers scholars—namely, that our constitutional
tradition has long established that the Commander in Chief enjoys substantive
powers that are preclusive of congressional control, especially with respect
to the command of forces and the conduct of campaigns—is
unwarranted.227
This was not the position offered by President Bush’s legal advisors. In
a confidential memo that started the process, Attorney General Office of
Legal Counsel (OLC) advisor, John Yoo, contended that neither the War
Powers Resolution nor the AUMF “can place any limits on the President’s
determinations as to any terrorist threat, the amount of military force to be
used in response, or the method, timing, and nature of the response.
These decisions, under our Constitution, are for the President alone to
223. See Neil Kinkopf, The Statutory Commander in Chief, 81 IND. L.J. 1169, 1194 (2005) (“[The
opinion stands] for the proposition that statutes should be read in a way that recognizes Congress’s
role in the exercise of the war power and that does not diminish Congress’s capacity to play its role
effectively.”).
224. Hamdi, 542 U.S. at 549–51 (2004) (Souter, J., concurring in part, dissenting in part); id. at
573–75 (Scalia, J., dissenting).
225. Sarah H. Cleveland, Hamdi Meets Youngstown: Justice Jackson’s Wartime Security Jurisprudence
and the Detention of “Enemy Combatants”, 68 ALB. L. REV. 1127, 1139, 1142 (2005). In his dissent,
Justice Thomas opined that it was the Court’s “duty to defer to the Executive’s military and foreign
policy judgment [when the President’s power] is at its zenith.” Hamdan v. Rumsfeld, 548 U.S. 557,
682 (2006) (Thomas, J., dissenting).
226. LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 67 (2d
ed. 1996).
227. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 1100 (2008).
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make.”228 The only Supreme Court precedent the OLC cited for this
paucity of congressional power is the remotely apposite Prize Cases,229
which involved the capture of vessels during conflict.230 Subsequently,
Democrats retook control of Congress and enacted legislation to withdraw
troops from Iraq.231
F. Power of the Purse
What if presidential actions exceed a congressional authorization or
conflict with later congressional desires? While Congress could indirectly
terminate military conflict by using its subpoena power to demand answers
from the Executive, remove the President with impeachment, or push for
criminal indictments when there is a valid basis,232 the Framers also
believed that appropriations could be a potent check over the President
and the military.233 Restraints include Congress’s broad spending power
in Article I of the Constitution, which states that “[n]o Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by
228. Memorandum from John C. Yoo, Deputy Assistant Att’y Gen., Office of Legal Counsel,
to the Deputy Counsel to the President, The President’s Constitutional Authority to Conduct
Military Operations Against Terrorists and Nations Supporting Them, (Sept. 25, 2001), available at
http://www.justice.gov/olc/warpowers925.htm; see also Jennifer Van Bergen & Douglas Valentine,
The Dangerous World of Indefinite Detentions: Vietnam to Abu Ghraib, 37 CASE W. RES. J. INT’L L. 449, 461
(2006) (“Through his Military Order, Bush granted himself extraordinary powers to identify al Qaeda
members and those who harbor them, and to detain those people without review by the judicial or
legislative branches of government.”).
229. Prize Cases, 67 U.S. 635 (1862).
230. See Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on
Terrorism, 118 HARV. L. REV. 2047, 2054–55, 2071–73 (2005) (calling the Prize Cases “an instructive
analogy” and noting that authorizations to use force are a preliminary step to incorporating
significant executive discretion, and explaining these two factors combined to expand authority under
the September 18, 2001, Authorization to Use Military Force).
231. But see Jide Nzelibe, Are Congressionally Authorized Wars Perverse?, 59 STAN. L. REV. 907, 944
(2007) (arguing that even after retaking Congress, “Democrats have balked at directly confronting the
President over a concrete timetable for withdrawing troops”).
232. Sudha Setty, The President’s Question Time: Power, Information, and the Executive Credibility Gap,
17 CORNELL J.L. & PUB. POL’Y 247, 271–72 (2008).
233. Peter Raven-Hansen & William C. Banks, Pulling the Purse Strings of the Commander in Chief,
80 VA. L. REV. 833, 833–36 (1994); Charles Tiefer, Can Congress Make a President Step Up a War?, 71
LA. L. REV. 391, 403 (2011); see also U.S. CONST. art I, § 8, cl. 12 (authorizing Congress “to raise and
support armies”). In a contentious funding dispute between Congress and President Theodore
Roosevelt during 1908, which involved Congress overruling the President’s decision to station
marines on naval ships, Attorney General George Wickersham wrote that the statute was
unequivocally constitutional because “Congress is the sole judge of how the Army or Navy shall be
raised and of what it shall be composed.” 27 Op. Att’y Gen. 260 (1909); see also MICHAEL D.
RAMSEY, THE CONSTITUTION’S TEXT IN FOREIGN AFFAIRS 108–13 (2007) (discussing
appropriations as a key check on the power of the Executive).
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Law”234 and specific clauses that empower Congress with the right to
fund and enact legislation for the military establishment.235 James
Madison articulated that the spending power was a derivative check for the
people: “The purse is in the hands of the Representatives of the people.
They have the appropriation of all moneys. They have the direction and
regulation of land and naval forces.”236 Thomas Jefferson explained: “We
have already given in example one effectual check to the Dog of war by
transferring the power of letting him loose from the Executive to the
Legislative body, from those who are to spend to those who are to
pay.”237
Congress’s appropriations authority is a milder, less drastic, and
potentially puissant check on the President because the Commander in
Chief power does not trump Congress’s appropriations power.238 The
Court recently construed Congress’s spending powers as “broad and
sweeping.”239 Federal law states that congressional “[a]ppropriations shall
be applied only to the objects for which the appropriations were made,”240
during the time period for which expenditures are approved, and for an
234. U.S. CONST. art. I, § 9, cl. 7.
235. See Chappell v. Wallace, 462 U.S. 296, 301 (1983) (holding that it is Congress’s right to
regulate and establish “the framework of the Military Establishment”). For example, with a view of
then-current hostilities in World War II, but before United States involvement, legislation specified a
twelve-month limitation for funding and deploying troops and that conscripts could be deployed
only for defensive purposes to “[t]erritories and possessions of the United States.” Act of Sept. 16,
1940, Pub. L. No. 76-783, § 3(e), 54 Stat. 885, 886. This authority can be distinguished from the
extensive debates that ensued for deployments of Marine and Army soldiers made prior to a
declaration of war under the President’s superintendent function or existing statutory authority to
deploy for specifically-authorized missions. David J. Barron & Martin S. Lederman, The Commander in
Chief at the Lowest Ebb—A Constitutional History, 121 HARV. L. REV. 941, 1049–50 (2008).
236. The Debates in the Convention of the Commonwealth of Virginia, on the Adoption of
the Federal Constitution (June 14, 1788) 393, in 3 THE DEBATES IN THE SEVERAL CONVENTIONS,
ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL
CONVENTION AT PHILADELPHIA, IN 1787 (Jonathan Elliot, ed., 2d ed. William S. Hein & Co. 1996)
(1891).
237. Letter from Thomas Jefferson to James Madison (Sept. 6, 1789), in 15 THE PAPERS OF
THOMAS JEFFERSON 397 (Julian P. Boyd & William H. Gaines, Jr. eds., 1958). In 1801, Jefferson
stated, with regard to offensive military measures, that he “confided by the Constitution to the
Legislature exclusively their judgment.” 1 A COMPILATION OF THE MESSAGES AND PAPERS OF
THE PRESIDENTS 327 (James D. Richardson ed., 1896). George Mason stated the Executive was
“not (safely) to be trusted with [the power of war].” 2 RECORDS OF THE FEDERAL CONVENTION
OF 1787, at 319 (Max Farrand ed., Yale University Press rev. ed. 1966) (1911).
238. See Charles Tiefer, Can Appropriation Riders Speed Our Exit from Iraq?, 42 STAN. J. INT’L L.
291, 301 (2006) (“[A]ctual history does not support the notion that the [E]xecutive’s ‘[Commander in
Chief]’ power trumps congressional power of the purse.”).
239. Rumsfeld v. Forum for Academic & Inst’l Rights, Inc., 547 U.S. 47, 58 (2006) (quoting
United States v. O’Brien, 391 U.S. 367, 377 (1968)).
240. 31 U.S.C. § 1301(a) (2006) (emphasis added).
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amount that does not exceed what Congress allocates.241 Violations of
these parameters invoke the Anti-Deficiency Act, which can lead to civil or
criminal penalties.242 In United States v. MacCollom,243 the Court held,
“The established rule is that the expenditure of public funds is proper only
when authorized by Congress, not that public funds may be expended
unless prohibited by Congress.”244 Consequently, Congress could impede
the President from violating statutory provisions by placing conditions on
funding allocations to end or de-escalate an already congressionallysanctioned conflict.245
A battle between the appropriations power and the Commander in
Chief authority emerged in 2007 after Democrats took control of
Congress for the first time in twelve years and sought to end the conflict in
Iraq by gradually withdrawing troops against the will of the President.246
Completely cutting funding could end military confrontations, but
Congress rarely uses this to restrain the President.247 Congress could
have ended the war in Iraq by adamantly refusing appropriations,248 but
President Bush thwarted congressional attempts.249 In vetoing a bill
requiring a gradual withdrawal of troops, Bush retorted, “[T]his legislation
is unconstitutional because it purports to direct the conduct of the
241. Id. §§ 1341(a)(1), 1502, 1511–1519.
242. Id. §§ 1349–1350; 31 U.S.C.A. § 1351 (West 2012).
243. United States v. MacCollom, 426 U.S. 317 (1976).
244. Id. at 321.
245. Charles Tiefer, Can Appropriation Riders Speed Our Exit from Iraq?, 42 STAN. J. INT’L L. 291,
291 (2006). Likewise, there is overlap with Congress’s appropriations power and the President’s
foreign affairs power. For example, in peacetime affairs, though the President superintends the
military, Congress appropriates annual funding for the Pentagon’s foreign military installations. See
Harold J. Krent, The Lamentable Notion of Indefeasible Presidential Powers: A Reply to Professor Prakash, 91
CORNELL L. REV. 1383, 1388–89 (2006) (arguing the Supreme Court has attempted to
“accommodate a legitimate exercise of congressional power” in cases of overlap between executive
and congressional powers).
246. News Hour with Jim Lehrer: President Bush Vetoes Iraq War Funding Bill (PBS television
broadcast May, 1, 2007) (transcript available at http://www.pbs.org/newshour/bb/politics/janjune07/veto_05-01.html); see also Robert Bejesky, Political Penumbras of Taxes and War Powers for the
2012 Election, 14 LOY. J. PUB. INT. L. (forthcoming 2012) (describing the showdown between
President Bush and Congress over additional funding for the Iraq War).
247. But see Louis Fisher, Congressional Abdication: War and Spending Powers, 43 ST. LOUIS U. L.J.
931, 1006 (1999) (“Public pressure caused Congress in 1973 to cut off funds for the Vietnam War.”).
248. See Note, Recapturing the War Power, 119 HARV. L. REV. 1815, 1830–31 (2006) (discussing
the criticism of cutting funding for a conflict after it has started).
249. News Hour with Jim Lehrer: President Bush Vetoes Iraq War Funding Bill (PBS television
broadcast May, 1, 2007) (transcript available at http://www.pbs.org/newshour/bb/politics/janjune07/veto_05-01.html); see also Robert Bejesky, Political Penumbras of Taxes and War Powers for the
2012 Election, 14 LOY. J. PUB. INT. L. (forthcoming 2012) (stating “Bush adamantly opposed
[Congress’s bill to withdraw troops] as an infringement on the [Commander in Chief] authority”).
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operations of the war in a way that infringes upon the powers vested in the
Presidency by the Constitution, including as Commander in Chief of the
Armed Forces.”250
The President did not win in 2007 because presidential war powers
prevailed over Congress’s appropriations power; rather, he won because
there was no adamant congressional will and because the White House
deviated discourse from substantive policies into a “support the troops”
slogan.251 The President could also avert Congress’s appropriations
power during military confrontations or affairs by commingling other
powers and using spending loopholes in the appropriations252 and foreign
assistance processes.253
IV. FORMING THE “ZONE OF TWILIGHT”: JUSTICE JACKSON’S
SECOND PRONG
A. Relative Debates
The originalist conception of Congress’s dominance in war powers is
clear, but scholars now debate whether Congress is willing to affirmatively
engage in foreign affairs and assert war powers. Some scholars maintain
that Congress, whether out of necessity or by choice, simply assents to
executive supremacy in international relations254 and has ceded or
250. 153 CONG. REC. 11017; see also John Norton Moore, Do We Have an Imperial Congress?, 43
U. MIAMI L. REV. 139, 145–46 (1988) (“A series of attorney general opinions, and the concept of
unconstitutional conditions, refute the notion that the appropriations power can be a valid basis for
broad congressional claims of absolute plenary authority.”).
251. See Jules Lobel & George Loewenstein, Emote Control: The Substitution of Symbol for Substance
in Foreign Policy and International Law, 80 CHI.-KENT L. REV. 1045, 1065 (2005) (“[T]he immediate
appeal of the ‘support our troops’ argument usually outweighs any rational consideration of the
merits of voting for or against funding.”); see also Robert Bejesky, Political Penumbras of Taxes and War
Powers for the 2012 Election, 14 LOY. J. PUB. INT. L. (forthcoming 2012) (discussing Bush’s “support
our troops” campaign).
252. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER
AFTER THE IRAN-CONTRA AFFAIR 130–31 (1990).
253. The Foreign Assistance Act of 1961 provided greater independent spending powers for
the Executive. Charles Tiefer, Can Appropriation Riders Speed Our Exit from Iraq?, 42 STAN. J. INT’L L.
291, 325–26 (2006).
254. AMY B. ZEGART, FLAWED BY DESIGN: THE EVOLUTION OF THE CIA, JCS, AND NSC
32–33 (1999) (acknowledging legislators allow the President “a good deal of latitude in running
foreign policy”); Bruce Ackerman & Oona Hathaway, Limited War and the Constitution: Iraq and the
Crisis of Presidential Legality, 109 MICH. L. REV. 447, 450 (2011) (“The key modern problem is
Congress’s lack of institutional capacity to exercise its political will . . . .”); Harold Hongju Koh, Why
the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255,
1291 (1988) (emphasizing Congress’s lack of political fortitude permits the President to usually
prevail in foreign affairs).
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acquiesced as its war powers authority was progressively divested.255
Consequently, the President presumes there is a right to act unilaterally,
and Congress either assents or negligibly endeavors to curb executive
discretion.256 Others disagree and maintain Congress has not “ceded the
field to the President when it comes to war.”257
Regardless of the accuracy of opposing visions and relative particulars,
clearly there is some deviation on war powers from what the Framers
originally intended. The remainder of this Article emphasizes that much
of this departure is due to asymmetric information and clever
interpretations of precedent within what Justice Jackson characterized as
the “zone of twilight.” There are three variables involved in this scenario.
First, the Constitution refers to “war,” but the use of force has undergone
a drastic reinterpretation over the past half-century, and discord exists over
how to discern uses of force that are actually or figuratively less than war
within the constitutional framework. Second, the Executive has a
conspicuous informational advantage over Congress due to the
Executive’s management of administrative agencies and control over the
national security apparatus.
Informational dominance permits the
President to engage in agenda-setting and pro-action that frequently
requires Congress to react to presidential initiatives and investigate after
the fact. Third, the Supreme Court and other federal courts provided
precedent on war power allocations, but have been hesitant to review
disagreements between the political branches since the Vietnam War.
With settled precedent and the Judiciary’s unwillingness to accept certiorari
on war powers questions based on justiciability, the President’s legal
counsel have issued opinions under new factual circumstances that obliged
presidential assertions in war powers.
B. Defining War, Conflict, and Peace
1. Framer Intent for War and Lesser Hostilities
Semantics involving the level of potential conflict partially account for
episodes where the President failed to acquire explicit congressional assent
255. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER
AFTER THE IRAN-CONTRA AFFAIR 123 (1990); see also Louis Fisher, Congressional Abdication: War and
Spending Powers, 43 ST. LOUIS U. L.J. 931, 931 (1999) (arguing Congress has remained sidelined as
Presidents engaged in military operations around the world).
256. JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM
AND ITS AFTERMATH 49 (1993).
257. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 693 (2008).
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prior to using military force.258 The Constitution states that Congress has
the authority to declare war, but this does not embody all congressional
prerogatives to sanction the use of the United States military in
hostilities.259 Congress does not need to use the magic words “declare
war” to express its intention to authorize the use of force260 or to initiate
military operations.261 In their debates, the Framers referenced declare
war in a non-technical way262 and intended for Congress to possess the
power to authorize even a limited use of force.263 Professors Bradley and
Goldsmith explain:
In limited authorizations, Congress restricts the resources and methods of
force that the President can employ, sometimes expressly restricts targets,
identifies relatively narrow purposes for the use of force, and sometimes
imposes time limits or procedural restrictions. In broad authorizations,
[C]ongress imposes few if any limits on resources or methods, does not
restrict targets other than to identify an enemy, invokes relatively broad
purposes, and generally imposes few if any timing or procedural
restrictions.264
Justice Chase succinctly emphasized this scenario when he wrote,
“Congress is empowered to declare a general war, or [C]ongress may wage
a limited war; limited in place, in objects, and in time.”265 The Framers’
258. There are varying interpretations of the word “war.” Stephen L. Carter, The
Constitutionality of the War Powers Resolution, 70 VA. L. REV. 101, 109–11 (1984). Not all conflicts have
the effect of the traditional definition of a war. 137 CONG. REC. 477 (1991) (statement of Rep.
Boren); Stephen L. Carter, Going to War over War Powers: Congressional Critics of Bush’s Gulf Moves Are
Looking at the Wrong Constitutional Clause, WASH. POST, Nov. 18, 1990, at C4.
259. “War is a state of hostilities that exists between or among nations, characterized by the use
of military force.” A.M. GRAY, WARFIGHTING: THE U.S. MARINE CORPS BOOK OF STRATEGY 3
(1994).
260. See Saikrishna Bangalore Prakash, Exhuming the Seemingly Moribund Declaration of War, 77
GEO. WASH. L. REV. 89, 92 (2008) (“During the founding era, declarations of war were not so
narrowly conceived. A document was a declaration of war even if it lacked the ‘declare war’
phrase.”).
261. See Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81
YALE L.J. 672, 701 (1972) (“Americans originally understood Congress to have at least a coordinate,
and probably the dominant, role in initiating all but the most obviously defensive wars, whether
declared or not.”).
262. William Michael Treanor, The War Powers Outside the Courts, 81 IND. L.J. 1333, 1334 (2006).
263. JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM
AND ITS AFTERMATH 136 (1993); EDWARD KEYNES, UNDECLARED WAR: TWILIGHT ZONE OF
CONSTITUTIONAL POWER 37 (1982); Charles A. Lofgren, War-Making Under the Constitution: The
Original Understanding, 81 YALE L.J. 672, 695 (1972).
264. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism,
118 HARV. L. REV. 2047, 2078 (2005).
265. Bas v. Tingy, 4 U.S. 37, 43 (1800) (Chase, J., concurring); see also Talbot v. Seeman, 5 U.S.
1, 28 (1800) (noting that Congress “may authorize . . . partial hostilities”).
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vision of war powers assumed Congress would have the prerogative to
authorize the deployment of military force for conflicts, regardless of the
gravity, intensity, length, or possible casualties.
Moreover, Article I, Section 8 of the Constitution refers to Congress’s
authority to “define and punish offenses against the law of nations”266
and to “grant Letters of Marque and Reprisal.”267 “Reprisal” refers to
approval of force in order to exact retribution for grievances, violations of
international law, and disputes falling short of the definition of war,268
including the use of armed force against another country, its citizens, or
associates.269 If the United States has an altercation with another country,
if an event transpires that undermines United States rights or relations, or
if there is a violation of the law of nations, Congress is empowered to
authorize a sequence of increasingly intense responses. Responses could
include seizure actions, blockades, economic punishment, emergency
operations, and war.270 Congress enacted legislation to address minor
retaliatory measures, skirmishes with varying levels of hostility, the
confiscation of goods by force, the capture of vessels, and the
implementation of embargoes.271
Letters of Marque were instruments that fortified state power by
allowing Congress to authorize private United States citizens to use force
against another country or people, inciting the mercenary’s self-interest by
permitting the Letter’s grantee to retain a portion of the enemy’s property
266. Jules Lobel, Conflicts Between the Commander in Chief and Congress: Concurrent Power over the
Conduct of War, 69 OHIO ST. L.J. 391, 456–57 (2008).
267. U.S. CONST. art. I, § 8, cl. 11.
268. Jules Lobel, Covert War and Congressional Authority: Hidden War and Forgotten Power, 134 U.
PA. L. REV. 1035, 1044 (1986).
269. See Michael Bahar, As Necessity Creates the Rule: Eisentrager, Boumediene, and the Enemy—
How Strategic Realities Can Constitutionally Require Greater Rights for Detainees in the Wars of the Twenty-First
Century, 11 U. PA. J. CONST. L. 277, 283–84 (2009) (“[R]eprisals . . . [are an] imperfect kind of war, or
those acts of hostility, which sovereigns exercise against each other, or, with their consent, their
subjects, by seizing the persons or effects of the subjects of a foreign commonwealth, that refuseth
to do us justice[.]” (quoting 2 J.J. BURLAMAQUI, THE PRINCIPLES OF NATURAL AND POLITIC LAW
180 (Thomas Nugent trans., 5th ed. 1807))); Charles A. Lofgren, War-Making Under the Constitution:
The Original Understanding, 81 YALE L.J. 672, 692–93 (1972) (stating Jean Jacques Burlamaqui’s view of
war was representative of later commentators who “took a broader view of what constituted
reprisals”).
270. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism,
118 HARV. L. REV. 2047, 2059 (2005). For example, the capture law, which allowed for the capture
of property belonging to enemies and neutrals, was also the “exclusive province of Congress.”
Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L. REV.
299, 321 (2008).
271. Cf. STEPHEN C. NEFF, WAR AND THE LAW OF NATIONS 193 (2005) (listing the
“traditional” rights of belligerents).
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seized during hostilities.272 Letters of Marque were not officially used
after the War of 1812, and international treaties abolished the use of
privatized armies. While Letters of Marque no longer have a bearing on
modern foreign affairs, they provide a snapshot of Framer intent. The
Framers were unsure if the United States should even have a standing
military.273 Without a standing military, privateers were a plum choice for
using force, but they were not instruments of an official war. They were a
congressional mechanism to permit lesser uses of military force. A scholar
described the congressional authorization as follows:
The privateer, as understood at the outbreak of the war for American
independence, was a ship armed and fitted out at private expense for the
purpose of preying on the enemy’s commerce to the profit of her owners,
and bearing a commission, or [L]etter of [M]arque, authorizing her to do so,
from the Government.274
2. International Law’s Influence on the Semantics of “War”
At the time of constitutional ratification, a state of war was an official
and cardinal conception under public international law,275 even though
official declarations of war were relatively rare.276 For example, Bas v.
Tingy277 discerned that the United States could be in an effective war
without Congress officially declaring war.278 The Supreme Court
recognized an expansive definition of war:
[E]very contention by force between two nations, in external matters, under
the authority of their respective governments, is not only war, but public
war. If it be declared in form, it is called solemn, and is of the perfect kind;
because one whole nation is at war with another whole nation; and all the
272. THEODORE D. WOOLSEY, INTRODUCTION TO THE STUDY OF INTERNATIONAL LAW
209–10 (5th ed. 1878); Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military
Powers, 87 TEX. L. REV. 299, 316 (2008).
273. Michael Sevi, Original Intent, Timetables, and Iraq: The Founders’ View on War Powers, 13 TEX.
REV. L. & POL. 73, 94–96 (2008).
274. EDGAR STANTON MACLAY, A HISTORY OF AMERICAN PRIVATEERS 7 (1899).
275. LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 98 (2d
ed. 1996).
276. THE FEDERALIST NO. 25 (Alexander Hamilton).
277. Bas v. Tingy, 4 U.S. 37 (1800).
278. Id. at 40–41; see also Lee v. Madigan, 358 U.S. 228, 231 (1959) (“Congress in drafting laws
may decide that the Nation may be ‘at war’ for one purpose, and ‘at peace’ for another.”); Rotko v.
Abrams, 338 F. Supp. 46, 47–48 (D. Conn. 1971), aff’d, 455 F.2d 992 (2d Cir. 1972) (finding that war
can include formal and informal conflicts); J. Terry Emerson, Making War Without a Declaration, 17 J.
LEGIS. 23, 29 (1990) (asserting that neither the text of the Constitution nor the Framers’ intent
requires Congress’s authorization to commence military actions).
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members of the nation declaring war, are [authorized] to commit hostilities
against all the members of the other, in every place, and under every
circumstance. In such a war all the members act under a general authority,
and all the rights and consequences of war attach to their condition. But
hostilities may subsist between two nations more confined in its nature and
extent; being limited as to places, persons, and things; and this is more
properly termed imperfect war; because not solemn, and because those who are
[authorized] to commit hostilities, act under special authority, and can go no
farther than to the extent of their commission. Still, however, it is public war,
because it is an external contention by force, between some of the members
of the two nations, [authorized] by the legitimate powers. It is a war
between the two nations, though all the members are not [authorized] to
commit hostilities such as in a solemn war, where the government restrain
the general power.279
Unless the President acted in defense of the nation prior to
congressional authorization, only Congress could issue offensive military
measures.280 However, countries today do not overtly rise and declare
war as a signaling event, for propaganda, to goad populace action,281 to
delineate the legal status of war and peace between countries,282 or to
promote any other reason.283 Declarations of war are obsolete, and no
country has issued one in over sixty years.284 The term “armed conflict”
almost completely supplanted the word “war” during the twentieth
279. Bas, 4 U.S. at 40–41.
280. See JAMES MADISON, NOTES OF DEBATES IN THE FEDERAL CONVENTION OF 1787, at
476 (1987) (indicating the Executive has the power to repel, but not commence war); Geoffrey Corn,
Triggering Congressional War Powers Notification: A Proposal to Reconcile Constitutional Practice with Operational
Reality, 14 LEWIS & CLARK L. REV. 687, 713, 727 (2010) (noting that a President may rely on a lack
of congressional opposition to war and that a President does not need congressional approval to
repel a sudden attack); Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J.
1199, 1200 (2006) (“The Constitution was intended to prohibit presidential wars.”); Jon D. Michaels,
Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 WASH.
U. L.Q. 1001, 1051–52 (2004) (arguing the decision of a President to declare war requires the consent
of the citizenry).
281. STEPHEN C. NEFF, WAR AND THE LAW OF NATIONS 104–10 (2005); Saikrishna
Bangalore Prakash, Exhuming the Seemingly Moribund Declaration of War, 77 GEO. WASH. L. REV. 89,
119 (2008); Michael D. Ramsey, Textualism and War Powers, 69 U. CHI. L. REV. 1543, 1585–86 (2002).
282. Nathaniel Berman, Privileging Combat? Contemporary Conflict and the Legal Construction of War,
43 COLUM. J. TRANSNAT’L L. 1, 15–16 (2004).
283. Clyde Eagleton, The Form and Function of the Declaration of War, 32 AM. J. INT’L L. 19, 33–34
(1938); Saikrishna Bangalore Prakash, The Separation and Overlap of War and Military Powers, 87 TEX. L.
REV. 299, 311–12 (2008).
284. Saikrishna Bangalore Prakash, Exhuming the Seemingly Moribund Declaration of War, 77 GEO.
WASH. L. REV. 89, 90–91 (2008). Senator Gary Hart remarked, “[M]embers of Congress by and
large don’t like to vote to go to war.” Sherman J. Bellwood Lecture: National Security and the Constitution: A
Dialogue with Senators Gary Hart and Alan Simpson, 43 IDAHO L. REV. 7, 19 (2006).
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century,285 and making a declaration of war is illegal under international
law.286
Even if hostilities are not referred to or recognized as war, international
law and the laws of war, still apply to all situations of armed conflict.287
The UN Charter does not refer to war, but instead refers to prohibiting
“threats” to use force and the actual use of force,288 which precludes
lesser military confrontations and “armed attack[s]”289 unless there is a
Security Council authorization before confrontation290 or a legitimate,
necessary, and proportionate use of force in self-defense. Otherwise, at
least one country’s use of force will necessarily violate international law.
This is a dramatic transformation because, as the Restatement Third of the
Foreign Relations Law of the United States explains, “aggressive war was
not unlawful, and a victor could acquire territory by conquest.”291
Transitions at the international level should not be a reason to presume
that outmoded definitions of war represent the radius of Congress’s
present constitutional war power. Semantic labels can even drift awry into
the opposite direction. In adopting the September 2001 AUMF, Congress
granted the President approval to respond to the perpetrators of 9/11, but
the Bush Administration consistently referred to a “War on Terror” that
implicated expansive Commander in Chief authority.292 Scholars began
285. Nathaniel Berman, Privileging Combat? Contemporary Conflict and the Legal Construction of War,
43 COLUM. J. TRANSNAT’L L. 1, 16 (2004).
286. Elisabeth Zoller, The War Powers in French Constitutional Law, 90 AM. SOC’Y INT’L L. PROC.
46, 49 (1996).
287. Wolff Heintschel von Heinegg, Factors in War to Peace Transitions, 27 HARV. J.L. & PUB.
POL’Y 843, 843–44 (2004).
288. UN Charter art. 2, para. 4. The UN established rules for protecting sovereignty,
prohibiting foreign invasion, and affirming decolonization rights, which increased the number of
states formed by peaceable means. Robert Bejesky, Currency Cooperation and Sovereign Financial
Obligations, 24 FLA. J. INT’L L. 91, 160 (2012); see also Nathaniel Berman, Privileging Combat?
Contemporary Conflict and the Legal Construction of War, 43 COLUM. J. TRANSNAT’L L. 1, 6–7 (2004)
(“[T]he legal construction of war as a separate sphere has come under considerable destabilizing
pressure in our time,” particularly in the number of states and non-state actors that have “shifted
unpredictably and irregularly between acts characteristic of wartime and those characteristic of notwartime.”).
289. UN Charter art. 51.
290. Id. art. 39.
291. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 331 reporter’s note 2 (1987).
292. See Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on
Terrorism, 118 HARV. L. REV. 2047, 2108 (2005) (“The AUMF authorizes the President to use force
against those ‘nations, organizations, or persons he determines’ have the requisite nexus with the
September 11 attacks.”); see also Robert Bejesky, Cognitive Foreign Policy: Linking Al Qaeda and Iraq, 56
HOW. L.J. (forthcoming 2012) (referring to the grant of power by the AUMF as the “war on
terrorism”).
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using the phrase “so-called” to preface the Administration’s use of “War
on Terror” and even postulated that responding to terrorism should be
premised on criminal law.293 The Obama Administration eventually
scrapped the phrase altogether.294
It seems crass and Orwellian to characterize an action as war when the
conflict involves a military hegemony with sophisticated weaponry,
weapons of mass destruction, stealth bombers, and over half a trillion
dollars in annual spending against an enemy that is often arduous to locate
and frequently assumed to be hiding in sleeper cells.295 Yet, if the Bush
Administration’s classification of war is legitimate, this example further
affirms that the congressional authorization to use military force for smallscale and uncertain battles is clearly a part of Congress’s constitutional war
powers.
Another questionable circumstance is whether military deployment will
even erupt into combat. If the President deploys troops to a foreign
location where there is minimal risk of hostility, the President is unlikely to
approach Congress and request a full body vote on the use of force.296
The Constitution does not enumerate that Congress must grant the
President authority to deploy the military outside of the United States.
However, there are interpretable situations. For example, the Clinton
Justice Department opined that discretionary leeway could be assumed
with troop deployments to Somalia, Haiti, and Bosnia because actions did
not amount to a war in duration, intensity, or scope.297 However, if
conflict does erupt, then the War Powers Resolution of 1973 requires the
293. M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 CASE
W. RES. J. INT’L L. 389, 406 (2006); see also Robert Bejesky, Cognitive Foreign Policy: Linking Al Qaeda
and Iraq, 56 HOW. L.J. (forthcoming 2012) (noting how the term “so called ‘war on terrorism’”
developed).
294. Scott Wilson & Al Kamen, ‘Global War on Terror’ Is Given New Name, WASH. POST (Mar.25,
2009),http://www.washingtonpost.com/wp-dyn/content/article /2009 /03 /24 / AR200903240281
8.html; see also Robert Bejesky, Cognitive Foreign Policy: Linking Al Qaeda and Iraq, 56 HOW. L.J.
(forthcoming 2012) (stating the Obama Administration began referring to the “war on terrorism” as
“overseas contingency operations”).
295. See George R. Lucas, Jr., “This Is Not Your Father’s War”—Confronting the Moral Challenges of
“Unconventional” War, 3 J. NAT’L SEC. L. & POL’Y 329, 337–38 (2009) (highlighting that the United
States military possesses unnecessary sophisticated weaponry in “unconventional, asymmetric
conflicts, with shadowy, illusive, and ill-defined enemies [with] morally ambiguous objectives”).
296. Charlie Savage & Mark Landler, White House Defends Continuing U.S. Role in Libya Operation,
N.Y. TIMES (June 15, 2011), http://www.nytimes.com/2011/06/16/us/politics/16powers.html; see
also Robert Bejesky, Precedent Supporting the Constitutionality of Section 5(b) of the War Powers Resolution, 49
WILLAMETTE L. REV. (forthcoming 2012) (arguing this is the general treatment under the War
Powers Resolution).
297. William Michael Treanor, The War Powers Outside the Courts, 81 IND. L.J. 1333, 1334–35
(2006).
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President to consult with and provide information to Congress and
maintains that Congress must authorize the use of force, depending on the
duration of hostilities.298
C. Information
1. The Spokesperson Publicizes Reasons to Use Force
Congress’s weaker information resources can also form contentions
within Justice Jackson’s “zone of twilight.”299 Agencies and intelligence
officials provide the President with daily briefings on real-time affairs. The
President can then request subject-specific reports on foreign affairs issues
from staffs within the Department of Defense, the Central Intelligence
Agency, the Department of Energy, and the State Department, as well as
other intelligence agencies within the government.300 In Zemel v. Rusk301
the Court explained:
[With the] changeable and explosive nature of contemporary international
relations, and the fact that the Executive is immediately privy to information
which cannot be swiftly presented to, evaluated by, and acted upon by the
legislature, Congress—in giving the Executive authority over matters of
foreign affairs—must of necessity paint with a brush broader than that it
customarily wields in domestic areas.302
In military affairs, members of Congress cannot expeditiously garner the
level of information about a potential or existing hostility that the
Executive can attain.303 The politicians who adopted the War Powers
Resolution in 1973 attempted to ameliorate this imbalance by assuring they
would share with Congress imperative information involving the
298. 50 U.S.C. §§ 1541–1548 (2006 & Supp. 2009).
299. See Richard H. Fallon, Jr., The Supreme Court, Habeas Corpus, and the War on Terror: An Essay
on Law and Political Science, 110 COLUM. L. REV. 352, 361 (2010) (“[N]umerous issues involving the
ultimate reach of the President’s power to respond to national security threats have occupied the
zone of uncertain constitutional meaning.”); Saby Ghoshray, False Consciousness and Presidential War
Power: Examining the Shadowy Bends of Constitutional Curvature, 49 SANTA CLARA L. REV. 165, 170–71
(2009) (“Justice Jackson’s concurrence [in Youngstown] identifies an area of concurrent control where
the limits of presidential power get lost in dark canyons of constitutional space.”).
300. AMY B. ZEGART, FLAWED BY DESIGN: THE EVOLUTION OF THE CIA, JCS, AND NSC
86 (1999); Jide Nzelibe & John Yoo, Rational War and Constitutional Design, 115 YALE L.J. 2512, 2523
(2006).
301. Zemel v. Rusk, 381 U.S. 1 (1965).
302. Id. at 17.
303. Terry M. Moe & William G. Howell, The Presidential Power of Unilateral Action, 15 J.L. ECON.
& ORG. 132, 137–38 (1999).
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conditions for using military force.304 If Congress held better institutional
tools, perhaps it could be more proactive in foreign and military affairs;305
however, due to the informational disadvantage, it is difficult for Congress
to expeditiously deliberate and judge alternatives on complex issues.306
Instead, Congress must often react to actions already executed.
A more subtle, inherent advantage that arises from this informational
discrepancy between the Congress and the Executive is that the President
can use select reports, choose positions, and broadcast preferences in
order to move public discourse.307 For example, the President has an
institutional dominance308 and prestige309 that permit agenda-setting,
escalating international crises, and influencing public preference for war
and the use of force.310 Even if the underlying national security situation
is not grave, the President could unreasonably initiate a societal perception
of exigency311 and imminent threat to expand presidential power,312
304. 50 U.S.C. § 1541(c) (2006).
305. Jide Nzelibe, A Positive Theory of the War-Powers Constitution, 91 IOWA L. REV. 993, 999–1000
(2006).
306. William P. Marshall, The Limits on Congress’s Authority to Investigate the President, 2004 U. ILL.
L. REV. 781, 799 (2004).
307. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653–54 (1952) (explaining
that the President influences public opinion due to “his prestige as head of state”).
308. The President is the dominant actor in American government. See generally EDWARD S.
CORWIN, THE PRESIDENT: OFFICE AND POWERS: HISTORY AND ANALYSIS OF PRACTICE AND
OPINION 201 (1940) (asserting that many would identify the President as having “the authority to
determine the course of the United States” in world affairs); FORREST MCDONALD, THE AMERICAN
PRESIDENCY: AN INTELLECTUAL HISTORY 1 (1994) (expressing the notion that “[t]he presidency of
the United States is often described as the most powerful office in the world”); ARTHUR M.
SCHLESINGER, JR., THE IMPERIAL PRESIDENCY, at ix (1973) (declaring that the President is now
“the most absolute monarch . . . among the great powers of the world”).
309. See Youngstown, 343 U.S. at 653–54 (Jackson, J., concurring) (opining, “No other
personality in public life can begin to compete with him in access to the public mind through modern
methods of communication”). Justice Jackson continued, “By his prestige as head of state and his
influence upon public opinion he exerts a leverage upon those who are supposed to check and
balance his power which often cancels their effectiveness.” Though Congress was the center of
attention in the news for most of the nineteenth century, this focus has since changed. See Richard
B. Kielbowicz, The Role of News Leaks in Governance and the Law of Journalists’ Confidentiality, 1795–2005,
43 SAN DIEGO L. REV. 425, 444 (2006) (referencing the impact of the Spanish-American War and
the utilization of the press for political maneuvering by President Theodore Roosevelt’s
administration).
310. Jide Nzelibe, A Positive Theory of the War-Powers Constitution, 91 IOWA L. REV. 993, 997
(2006); Jide Nzelibe, Are Congressionally Authorized Wars Perverse?, 59 STAN. L. REV. 907, 929 (2007).
311. Articulating a reserved interpretation of exigency, Secretary of State Daniel Webster stated
that the exigency must represent a “necessity of self-defense, instant, overwhelming, leaving no . . .
moment for deliberation.” R. Y. Jennings, The Caroline and McLeod Cases, 32 AM. J. INT’L L. 82, 89
(1938). Unless authorized by the U.N. Security Council, most states and scholars maintain there
must first be an actual armed attack to grant a right to self-defense, unless authorized by the U.N.
Security Council. Jordan J. Paust, Post-9/11 Overreaction and Fallacies Regarding War and Defense,
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reducing congressional and public scrutiny.313 The President could also
respond to a perceived foreign crisis by using force under the guise of
national security, and thereby boost domestic support;314 a president
already wielding strong public approval ratings could utilize those populace
perceptions to persuade Congress to act.315
The populous can view risks disparately and globally. The President is
required to react to exigencies to safeguard national interest,316 but it is
questionable to what extent the President can act beyond sovereign
borders. The world has changed markedly since the Framers’ perspective
was implemented; it was a progression from a world in which imperial
powers such as Britain and France used gunpowder, cannons, and troops
on horseback, to a current world in which instantaneous communications
and sophisticated and devastating weapons can be exploited to rapidly
strike an adversary. Due to technological advances, the parameters of the
Constitution continue to be pressured by an ever-changing political and
security landscape.
2. Intelligence Information
The Executive has a sizeable advantage over Congress due to the
control he or she asserts over a national security apparatus that imparts a
wealth of privileged information that does not need to be shared with
Guantanamo, the Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military
Commissions, 79 NOTRE DAME L. REV. 1335, 1343 (2004).
312. Saby Ghoshray, False Consciousness and Presidential War Power: Examining the Shadowy Bends of
Constitutional Curvature, 49 SANTA CLARA L. REV. 165, 185 (2009); Saby Ghoshray, Illuminating the
Shadows of Constitutional Space While Tracing the Contours of Presidential War Power, 39 LOY. U. CHI. L.J.
295, 325–26 (2008).
313. See LOUIS FISHER, PRESIDENTIAL WAR POWER 261–62 (2d rev. ed. 2004) (“If the current
risk to national security is great, so is the risk of presidential miscalculation and aggrandizement—all
the more reason for insisting that military decision be thoroughly examined and approved by
Congress. Contemporary presidential judgments need more, not less, scrutiny.”).
314. PAUL BRACE & BARBARA HINCKLEY, FOLLOW THE LEADER: OPINION POLLS AND THE
MODERN PRESIDENTS 107 (1992); Karl R. DeRouen, Jr., The Indirect Link: Politics, the Economy, and the
Use of Force, 39 J. CONFLICT RESOL. 671, 672–73 (1995). In addition, involvement in war is a prime
indicator that weighs heavily on presidential legacy. See William Michael Treanor, The War Powers
Outside the Courts, 81 IND. L.J. 1333, 1343 (2005) (“Presidents will get the lion’s share of the credit for
a successful war . . . . After length of tenure in office and whether they were assassinated, the
number of years in which the nation was at war during a Presidency is the variable weighing most
heavily in favor of a President’s historical reputation.”).
315. See George C. Edwards III, Aligning Tests with Theory: Presidential Approval As a Source of
Influence in Congress, 24 CONGRESS & THE PRESIDENCY 113, 126–27 (1997) (analyzing the relationship
between presidential support and public approval).
316. See Nat’l Foreign Trade Council v. Natsios, 181 F.3d 38, 76–77 (1st Cir. 1999) (illustrating
how the President possesses discretionary power when it relates to safeguarding national interests).
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other governmental bodies.317 The Supreme Court first embraced an
expansive interpretation of what constituted “presidential security” in
broad dicta in United States v. Curtiss-Wright Export.318 The National
Security Act (NSA) of 1947 codified similarly-expansive executive
prerogatives by stating that during peacetime, all classified information
relating to national security is treated as privileged access information.319
The President has control over the national security apparatus,320
appoints members to the National Security Council, which manages the
CIA,321 and utilizes the country’s infrastructure, such as the National
Security Agency Eschelon system to collect data from global
communications.322 Intelligence Community (IC) analysts produce
important reports for the President, and congressional committees oversee
the IC;323 only select members of Congress have partial access to this
classified information. Otherwise, Congress cannot access intelligence
317. Robert Bejesky, Press Clause Aspirations and the Iraq War, 48 WILLAMETTE L. REV. 343, 350
(2012); see also United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (“[The
President], not Congress, has the better opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war. He has his confidential sources of
information. He has his agents in the form of diplomatic, consular[,] and other officials.”).
Furthermore, under the Curtiss-Wright vision, the “President’s Article II Powers are paramount,
Congress exercises minimal oversight over executive activity, government secrecy prevails, and the
Solicitor General regularly urges the courts to give extreme deference to the President, citing the
Judiciary’s ‘passive virtues.’” Harold Hongju Koh, Setting the World Right, 115 YALE L.J. 2350, 2355
(2006).
318. See Curtiss-Wright, 299 U.S. at 314–15 (inquiring into whether Congress could delegate to
the President the authority to impose an arms embargo if he believed it could contribute to peace in
South America). Justice Sutherland believed that “[executive] [s]ecrecy in respect of information
gathered . . . may be highly necessary, and the premature disclosure of it productive of harmful
results.” Id. at 320.
319. E.g., CIA HISTORY STAFF, CENT. INTELLIGENCE AGENCY, CENTRAL INTELLIGENCE:
ORIGIN AND EVOLUTION 4–5 (2001), available at https://www.cia.gov/library/center-for-the-studyof-intelligence/csi-publications/books-and-monographs/Origin_and_Evolution.pdf (exploring the
beginning of the CIA and the National Security Act of 1947).
320. See Robert Bejesky, Weapon Inspections Lessons Learned: Evidentiary Presumptions and Burdens of
Proof, 38 SYRACUSE J. INT’L. L. & COM. 295, 374 (2011) (illustrating the way in which the Bush
Administration controlled the national security apparatus).
321. 50 U.S.C.A. § 403-3 (West 2012).
322. See JAMES BAMFORD, BODY OF SECRETS 409 (2001) (describing the procedure used to
search messages processed using the NSA’s Eschelon system). “[E]very international telephone call,
fax, e-mail, or radio transmission can be listened to by powerful computers capable of voice
recognition[,]” and this classified raw data can be used to produce intelligence reports. Andrew
Bomford,
Eschelon
Spy
Network
Revealed,
BBC
(Nov.
3,
1999),
http://news.bbc.co.uk/2/hi/503224.stm.
323. THOMAS F. EAGLETON, WAR AND PRESIDENTIAL POWER: A CHRONICLE OF
CONGRESSIONAL SURRENDER 195–96 (1974).
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information324 and has no independent intelligence collection activities of
its own.
The President, privy to such a broad privilege to access intelligence
information, might abuse such power, thereby eroding the very principles
that permit withholding national secrets as an exception to transparency in
American democracy. Congress created the NSA to prevent the
publication of data that relates to national security and to share that
information with policymakers so they can make more knowledgeable
decisions, but nothing in it refers to war powers.325 Nonetheless, as the
Iraq War in 2003, the Gulf of Tonkin Resolution for the Vietnam War in
1964, and the Church Committee investigations in the early 1970s
demonstrated, the use of classified materials can wreak havoc on war
powers, including when false information is publicized and when
unpalatable and furtive operations are exposed.326 The President has the
dominion to gather, scrutinize, classify, or declassify national security data,
and the American people and Congress may be obliged to acquiesce to the
Executive Branch’s choices regarding the flow of information.327
The National Security Council and CIA use their authority to conduct
covert wars, which are operations that may expand the war powers of the
Executive Branch.328 The NSA states that the President can authorize a
covert action when “such an action is necessary to support identifiable
foreign policy objectives of the United States and is important to the
national security of the United States, which determination shall be set
324. See Robert Bejesky, National Security Information Flow: From Source to Reporter’s Privilege, 24 ST.
THOMAS L. REV. (forthcoming 2012) (explaining how the President can use classification of
information to keep Congress in the dark).
325. 50 U.S.C. § 401 (2006).
326. See Robert Bejesky, Intelligence Information and Judicial Evidentiary Standards, 44 CREIGHTON
L. REV. 811, 875–82 (2011) (listing fabrications that likely led to the Iraq War). See generally Robert
Bejesky, Congressional Oversight of the “Marketplace of Ideas”: Defectors As Sources of War Rhetoric, 63
SYRACUSE L. REV. (forthcoming 2012) (explaining the decade-long role Iraqi defectors played in
publicizing false claims in the media and with U.S. intelligence agencies and emphasizing the cozy
relationship the Bush Administration held with defectors).
327. See HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING
POWER AFTER THE IRAN-CONTRA AFFAIR 201 (1990) (“[T]he National Security Constitution
requires that the public, as well as [C]ongress, receive as much information as is necessary to evaluate
the wisdom and legality of executive conduct.”). See generally Robert Bejesky, National Security
Information Flow: From Source to Reporter’s Privilege, 24 ST. THOMAS L. REV. (forthcoming 2012) (“[T]he
President has considerable interpretive latitude and the ultimate decision over what, how, and to
what extent information should be classified or declassified is generally unreviewable.”).
328. See Tung Yin, Structural Objections to the Inherent Commander-in-Chief Power Thesis, 16
TRANSNAT’L L. & CONTEMP. PROBS. 965, 986–87 (2007) (discussing the President’s power to initiate
covert action after the National Security Act of 1947).
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forth in a finding.”329 The NSA also states a “finding may not authorize
any action that would violate the Constitution or any statute of the United
States.”330 Because Congress is uninformed of covert actions, there can
be no legislative assent even though operations expend taxpayer
money.331 When Congress discussed the War Powers Resolution, Senator
Eagleton sought to exclude “covert operations” because he considered
them a loophole prone to exploitation and a form of war.332 Assistant
Attorney General Charles Cooper commingled war powers with covert
actions when he explained that “[t]o the extent a covert action is analogous
to a military action, . . . the President as [Commander in Chief] retains
complete control over the operation . . . [and] the authority to decide when
and to whom to disclose the operation.”333
Questions of constitutionality, illegality, and executive secrecy regarding
covert actions exploded during the mid-1980s when the Iran-Contra
criminal investigations exposed that the Reagan Administration financed
the Nicaraguan Contras for several years against the express will of
Congress.334 Congress advanced criminal charges against Oliver North
and other Iran-Contra conspirators because Congress restricted the covert
operations by refusing to fund the Contras in the Boland Amendment.335
Congress expressly prohibited operations, and President Reagan denied
any knowledge.336 Some commentators believe the legislative restrictions
over financing and enforcement of the law during the Iran-Contra affair
329. 50 U.S.C. § 413b(a) (2006).
330. Id. § 413b(a)(5).
331. However, congressional leadership may approve covert missions. See Memorandum from
Alfred Cumming, Specialist in Intelligence and Nat’l Sec., Foreign Affairs, Def. and Trade Div.,
Cong. Research Serv. Statutory Procedures Under Which Congress Is to Be Informed of U.S.
Intelligence Activities, Including Covert Actions (Jan. 18, 2006), available at
http://www.fas.org/sgp/crs/intel/m011806.pdf.
332. 119 Cong. Rec. 25,079 (1973) (statement of Sen. Eagleton).
333. Oversight Legislation: Hearings Before the Select Comm. on Intelligence on S. 1721 and S. 1818, 100th
Cong. 181–82 (1987) (statement by Assistant Attorney General Charles Cooper).
334. See Louis Fisher, How Tightly Can Congress Draw the Purse Strings?, 83 AM. J. INT’L L. 758,
758–61 (1989) (analyzing the steps Congress took to curtail aid to the Nicaraguan Contras and the
actions the Executive Department took to continue to provide them with aid).
335. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210 (D.C. Cir. 1985); Charles Tiefer, Can
Appropriation Riders Speed Our Exit from Iraq?, 42 STAN. J. INT’L L. 291, 304, 326 (2006). See generally
Andrew W. Hayes, Note, The Boland Amendments and Foreign Affairs Deference, 88 COLUM. L. REV. 1534,
1565–75 (1988) (outlining the Boland Amendments).
336. Eric Lane, Frederick A.O. Schwarz, Jr. & Emily Berman, Too Big a Canon in the President’s
Arsenal: Another Look at United States v. Nixon, 17 GEO. MASON L. REV. 737, 765–66 (2010).
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assisted Congress in corralling executive discretion over covert
operations.337
The national security apparatus can also be employed to expand
presidential powers when the Executive takes action before Congress is
cognizant of the operation.338 For example, Professor Lobel emphasized
that the Bush Justice Department, Office of Legal Counsel (OLC) misused
the “zone of twilight” formulation when interpreting the AUMF.339 The
OLC did not reference Youngstown, but instead proclaimed exclusive
power. Likewise, the OLC’s highly deprecated Torture Memo “opined
that the anti-torture statute could not prohibit the President from ordering
the use of torture in interrogations of enemy combatants, because such a
prohibition would violate the President’s constitutional powers.”340 The
OLC also maintained that the President could conduct warrantless
surveillance because the AUMF prevails over the Foreign Intelligence
Surveillance Act (FISA) warrant requirement.341 The AUMF does not
reference FISA or surveillance, but the Bush Administration contended
that the general “all necessary measures” language in the AUMF bestowed
a generally applicable carte blanche that prevailed over existing, specific
statutory language.342 Until the scandal broke publicly, the surveillance
operations and the legal advice remained classified.343
3. Congressional Investigations
The President must submit certain information to Congress to discharge
337. Bruce Ackerman & Oona Hathaway, Limited War and the Constitution: Iraq and the Crisis of
Presidential Legality, 109 MICH. L. REV. 447, 488–89 (2011); Charles Tiefer, Can Appropriation Riders
Speed Our Exit from Iraq?, 42 STAN. J. INT’L L. 291, 330–31 (2006).
338. See Michael P. Van Alstine, Executive Aggrandizement in Foreign Affairs Lawmaking, 54 UCLA
L. REV. 309, 312 (2006) (“Recent expansive assertions of implied executive authority by the [Bush
Administration] against the backdrop of national security considerations have also added a
particularly combustible fuel to the controversy.”).
339. Jules Lobel, Conflicts Between the Commander in Chief and Congress: Concurrent Power Over the
Conduct of War, 69 OHIO ST. L.J. 391, 446 (2008).
340. Neil Kinkopf, The Statutory Commander in Chief, 81 IND. L.J. 1169, 1171 (2005) (citing
Memorandum from Jay S. Bybee, Assistant Att’y Gen., Dep’t of Justice, to Alberto R. Gonzalez,
Counsel to the President (Aug. 1, 2002)).
341. See id. at 1174, 1196 (disagreeing with the President’s interpretation of the statutory
interaction between FISA and the AUMF).
342. Cf. id. at 1178 (illustrating President Bush’s use of the AUMF to commence war on
Afghanistan).
343. OFFICE OF PROF’L RESP., DEP’T OF JUSTICE REP., INVESTIGATION INTO THE OFFICE
OF LEGAL COUNSEL’S MEMORANDA ON ISSUES RELATING TO THE CENTRAL INTELLIGENCE
AGENCY’S USE OF “ENHANCED INTERROGATION TECHNIQUES” ON SUSPECTED TERRORISTS
(2008), available at http://judiciary.house.gov/hearings/pdf/OPRFinalReport090729.pdf.
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constitutional obligations to execute the laws,344 but Congress must
frequently react to executive action by implementing investigative
processes, holding legislative oversight proceedings, or convening
committee hearings.345 Congressional investigations are a means of
scrutinizing ramifications of existing laws and proposed statutes,
“survey[ing] [] defects in our social, economic[,] or political system for the
purpose of enabling the Congress to remedy them,” and exposing
malfeasance, “corruption, inefficiency[,] or waste.”346
The Supreme Court held the power of investigation is an inherent
authority borne by the legislature,347 and courts have upheld Congress’s
investigative power of Executive Branch activities348 so long as there is a
nexus to lawmaking or oversight.349 Congress can acquire information in
open or private congressional hearings,350 depose witnesses, issue
subpoenas,351 and hold witnesses in contempt;352 however, Congress
may not attain material that involves undiscoverable classified information,
the President’s private affairs, or Executive Branch communications and
deliberations protected by executive privilege.353 The President can
344. See Sudha Setty, The President’s Question Time: Power, Information, and the Executive Credibility
Gap, 17 CORNELL J.L PUB. POL’Y 247, 291–92 (2008) (noting that the President must make various
informational submissions, and that this requirement is particularly true regarding information
pertaining to budget and appropriations).
345. See generally DAVID R. MAYHEW, AMERICA’S CONGRESS: ACTIONS IN THE PUBLIC
SPHERE, JAMES MADISON THROUGH NEWT GINGRICH 62–70 (2000) (asserting committee hearings
and investigations have addressed important issues of public policy throughout American history);
Jonathan G. Pray, Comment, Congressional Reporting Requirements: Testing the Limits of the Oversight Power,
76 U. COLO. L. REV. 297, 306–07 (2005) (describing the differences between legislative and
investigative oversight).
346. Watkins v. United States, 354 U.S. 178, 187 (1957).
347. Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 504 (1975).
348. Watkins, 354 U.S. at 178; see also Barenblatt v. United States, 360 U.S. 109, 112 (1959)
(explaining Congress’s power to investigate is limited only by the Constitution and issues that are
exclusively within the control of the Executive or Judicial Branches); Randall K. Miller, Congressional
Inquests: Suffocating the Constitutional Prerogative of Executive Privilege, 81 MINN. L. REV. 631, 636–37
(1997) (“Congressional investigations must be in furtherance of a valid legislative purpose.”).
349. See Watkins, 354 U.S. at 187 (stating investigations “must be related to, and in furtherance
of, a legitimate task of the Congress”); William P. Marshall, The Limits on Congress’s Authority to
Investigate the President, 2004 U. ILL. L. REV. 781, 798–800 (2004) (discussing the scope of Congress’s
investigatory powers).
350. United States v. Hintz, 193 F. Supp. 325, 335 (N.D. Ill. 1961).
351. Eastland, 421 U.S. at 504.
352. 2 U.S.C. § 192 (2006); JAY R. SHAMPANSKY, CONGRESS’ CONTEMPT POWER 23 (2003).
353. See Mark P. Doherty, Executive Privilege or Punishment? The Need to Define Legitimate Invocations
and Conflict Resolution Techniques, 19 N. ILL. U. L. REV. 801, 811–14 (1999) (describing the importance
of confidentiality when the President exerts Executive Privilege).
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potentially thwart appeals for information by invocation of the executive
privilege.354
Congress can enfeeble its investigative processes when there is unified
government or when the issue involves military affairs or national security.
First, the majority party in Congress has the foremost capability and
opportunity to challenge the President.355 Studies confirm that the
amount of congressional investigative activity over the President’s actions
is drastically higher when the opposing political party controls Congress
and is more cohesive.356 Endeavors to oversee presidential authority
weaken when the same party controls the White House and holds the
majority of seats in Congress.357
Second, investigative procedures are not always efficacious when
Congress investigates the military, intelligence operations, foreign affairs,
or executive actions that contravene Congress’s spending power.358
Perhaps the most substantial, relatively recent initiative to boost
information sharing that involves military affairs was the Goldwater
Nichols Department of Defense Reorganization Act of 1986.359 The Act
was relatively successful in promoting information flow from the
Department of Defense’s bureaucratic structure to the President’s
appointed civilian staff, but it did not necessarily enhance congressional
oversight or information sharing with Congress.360 Generally, Congress
354. Sudha Setty, The President’s Question Time: Power, Information, and the Executive Credibility Gap,
17 CORNELL J.L. & PUB. POL’Y 247, 293 (2008).
355. See Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L.
REV. 2311, 2345 (2006) (discussing various presidential investigations “carried out by oppositioncontrolled Congress”).
356. See Douglas Kriner & Liam Schwartz, Divided Government and Congressional Investigations, 33
LEG. STUD. Q. 295, 305–07 (2008) (concluding a divided partisan control model results in increased
presidential investigations); Charles Tiefer, Congress’s Transformative ‘Republican Revolution’ in 2001–2006
and the Future of One-Party Rule, 23 J.L. & POL. 233, 234 (2007) (discussing how a “‘Republican
Revolution’ transformed the law of [c]ongressional rules and procedures to allow that party to
implement an ideological agenda”).
357. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV. 633, 648–49 (2000).
358. Bruce Ackerman & Oona Hathaway, Limited War and the Constitution: Iraq and the Crisis of
Presidential Legality, 109 MICH. L. REV. 447, 485 (2011); Louis Fisher, Presidential Independence and the
Power of the Purse, 3 U.C. DAVIS J. INT’L L. & POL’Y 107, 107 (1997); Jon D. Michaels, Beyond
Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 WASH. U. L.Q.
1001, 1056–57 (2004); Jide Nzelibe, Are Congressionally Authorized Wars Perverse?, 59 STAN. L. REV. 907,
913–14 (2007).
359. Goldwater-Nichols Department of Defense Reorganization Act of 1986, Pub. L. No.
99-433, 100 Stat. 992.
360. Geoffrey Corn & Eric Talbot Jensen, The Political Balance of Power over the Military: Rethinking
the Relationship Between the Armed Forces, the President, and Congress, 44 HOUS. L. REV. 553, 574 (2007).
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must proactively seek material from the military through congressional
committee investigations.361
Congress first investigated the military in 1792 when Major General
Arthur St. Clair suffered a military loss after a dispute with Indian tribes in
the Northwest Territories.362 Since World War II, some high profile
investigations “include the purchase of the F-111 aircraft between 1962
and 1970[,] . . . ‘corruption in . . . servicemen’s clubs . . . in Southeast Asia’
during the Vietnam War[,] . . . U.S. involvement in Central America, . . .
the use of Marines in Lebanon[,] . . . the Iran Contra Affair[,] . . . treatment
of detainees[,] . . . and . . . the Base Realignment and Closure process.”363
D. Expansion of the Administrative State
To address uncertain situations that might not be covered by an
enumerated power, the Framers bestowed upon the legislature an
expansive Vesting Clause, which states that “[a]ll legislative powers herein
granted shall be vested” with Congress.364 Congress has the authority to
“make all Laws which shall be necessary and proper for carrying into
Execution” those powers.365 The Framers provided a similar clause for
the Executive,366 which states that “[t]he Executive Power shall be vested
in a President of the United States of America.”367 While there is discord
over how expansive to construe the Executive’s Vesting Clause,368 when
Congress delegates authority to administrative agencies, the President’s
power expands, whether that distention is premised on the Executive’s
361. Id.
362. Richard J. Leon, Congressional Investigations: Are Partisan Politics Undermining Our Vital
Institutions?, 31 SUFFOLK U. L. REV. 825, 826 (1998).
363. Geoffrey Corn & Eric Talbot Jensen, The Political Balance of Power over the Military: Rethinking
the Relationship Between the Armed Forces, the President, and Congress, 44 HOUS. L. REV. 553, 580–81 (2007).
Congress may have had relative success in exposing executive wrongdoing, such as when President
Truman’s policies deteriorated relations with China or when President Nixon’s secret clandestine war
in Cambodia was revealed and criticized, and in prevailing over the Iran-Contra investigation during
the Reagan Administration. Douglas Kriner, Can Enhanced Oversight Repair “The Broken Branch”?, 89
B.U. L. REV. 765, 776 (2009).
364. U.S. CONST. art. I, § 1.
365. Id. I, § 8, cls. 1, 10.
366. JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN
AFFAIRS AFTER 9/11, at 18–19 (2005).
367. U.S. CONST. art. II, § 1, cl. 1; THE FEDERALIST NO. 48 (James Madison).
368. The Framers were concerned that individuals would be vested with too much power.
THE FEDERALIST NO. 48 (James Madison); THE FEDERALIST NO. 67 (Alexander Hamilton). The
Executive does not specifically have a “necessary and proper” discretionary function spelled out but
must execute and administrate the laws.
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Vesting Clause or on another basis.369 When Congress establishes new
administrative agencies, those agencies fall under the authority of the
President. The Executive’s appointees head these agencies, enact and
enforce regulations, and set policy.370 Consequently, the societal,
technological, and economic complexity and growth require new agencies
that also lead to a more powerful presidency.371 The diffusion and
evolution of the administrative state influence the President’s power
directly in foreign affairs and indirectly in war powers.
There are many reasons the expansion of the Executive Branch make it
more difficult for Congress to preserve its institutional power.372 First,
Congress loses control over aspects of an agency’s jurisdiction after
delegating authority because Congress can only fund and oversee the
bureaucracy, but cannot interfere with rule-making or otherwise retain a
legislative veto.373 Second, Congress lacks the institutional memory that
369. Preambles to both Articles I and II of the United States Constitution support this
situation. Article I § 1 states that “[a]ll legislative powers herein granted shall be vested in a
Congress,” while Article II § 1 states that “the executive power shall be vested in a President.” U.S.
CONST. art. I, § 1 & art. II § 1. “Execute” means “to carry out fully.” Definition of Execute, MERRIAMWEBSTER, http://www.merriam-webster.com/dictionary/execute (last visited Nov. 15, 2012); see also
Charles L. Black, Jr., The Working Balance of the American Political Departments, 1 HASTINGS L.Q. 13, 17–
18 (1974) (explaining how the President’s power can be controlled to some extent by Congress).
370. E.g., Jack M. Beermann, A Skeptical View of a Skeptical View of Presidential Term Limits, 43
CONN. L. REV. 1105, 1115 (2011) (examining the way in which candidates are appointed to agencies).
371. This was particularly true during the New Deal Era. See THEODORE J. LOWI, THE
PERSONAL PRESIDENT: POWER INVESTED, PROMISE UNFULFILLED 41–42 (1985) (arguing the
national government expanded substantially due to the demands of the social movements, which
moved from the state-level to the national-level after the Supreme Court began invalidating state
legislation that hampered interstate commerce); Robert Bejesky, An Analytical Appraisal of Public Choice
Value Shifts for Environmental Protection in the United States and Mexico, 11 IND. INT’L & COMP. L. REV.
251, 265–66 (2001) (discussing distinct eras of growth in administrative agencies during the
Progressive Era and the New Deal Era); Cynthia R. Farina, False Comfort and Impossible Promises:
Uncertainty, Information Overload, and the Unitary Executive, 12 U. PA. J. CONST. L. 357, 361, 399–403
(2010) (discussing the expansive and complex rule-making procedures that the Executive Branch uses
to address a changing society). There has been increased executive concentration of power over the
past three decades. See Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the
Administrative State, 89 COLUM. L. REV. 452, 502–10 (1989) (connecting the growth of presidential
power to, among other factors, the power of appointment, congressional acquiescence, and the
ineffectiveness of congressional devices for controlling the behavior of executive agencies); Peter M.
Shane, When Inter-Branch Norms Break Down: Of Arms-for-Hostages, “Orderly Shutdowns,” Presidential
Impeachments, and Judicial “Coups”, 12 CORNELL J.L. & PUB. POL’Y 503, 514–21 (2003) (analyzing the
growth of presidential power in the following contexts: the Iran-Contra scandal, the 1995 budget
showdown, the impeachment of President Clinton, and the judicial appointments by President
Clinton).
372. See Zemel v. Rusk, 381 U.S. 1, 17 (1965) (asserting Congress cannot simply relinquish
institutional power and “grant the Executive totally unrestricted freedom of choice”).
373. See Mathew D. McCubbins, Abdication or Delegation? Congress, the Bureaucracy, and the
Delegation Dilemma, 22 REGULATION, no. 2, 1999 at 30, 31 (“By assigning specialized jurisdictions to
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exists in administrative agencies.374 Agency employees are civil servants
working within the history of the organization, while members of
Congress have more frequent turnover rates and concentrate their
attention on current affairs. Third, the resources and privilege to
information available to the Executive Branch vastly outweighs those
resources available to the Legislative Branch.375 For example, Congress
has a workforce of 30,000 and a total budget of $4.7 billion, while defenseand security-related agencies have three million employees and a budget of
$639 billion.376 Hence, even if Congress did attempt to announce a
preferred foreign policy, it has few institutions to execute it.377 Fourth,
the President appoints agency leadership with similar political
predispositions, which in turn increases conformity to preferred policies
within the agency.378 Congress has some authority to set parameters for
executive appointments, but may not infringe upon the President’s main
power of appointment.379 For example, with regard to war powers,
bureaus, Congress reduces the number of organized interests that have the interest and ability to
contest a specific policy issue, thereby creating a situation of oligopoly.”).
374. Congress has a frequent turnover rate, with two- or six-year terms. However, agencies
have an executive memory, seek to remain fully-funded, and attempt to protect and preserve agency
activities. See Robert H. Salisbury & Kenneth A. Shepsle, Congressional Staff Turnover and the Ties-ThatBind, 75 AM. POL. SCI. REV. 381, 382 (1981) (writing turnover of congressional staff causes the fading
of the “institutional memory”).
375. Cf. Keith E. Whittington & Daniel P. Carpenter, Executive Power in American Institutional
Development, 1 PERSP. ON POL. 495, 504 (2003) (arguing the rise of national security concerns has
resulted in the superior information generated by the Executive Branch).
376. U.S. CONGRESS, BUDGET FOR FISCAL YEAR 2009, at 140–41 (2009),
http://www.gpo.gov/fdsys/pkg/BUDGET-2009-BUD/pdf/BUDGET-2009-BUD-31.pdf; see also
PETER IRONS, WAR POWERS 267–68 (2005) (providing personnel numbers and explaining that the
Department of Defense, Pentagon, CIA, and Homeland Security include 636,000 employees and
another 2.3 million troops and support staff); James Fallows, Bush’s Lost Year, THE ATLANTIC (Oct.
2004), http://www.theatlantic.com/magazine/archive/2004 /10 /bush-apos-s-lost-year / 3507 /
(repeating that former top White House official Richard Clarke said, “[W]e’re a huge government,
and we have hundreds of thousands of people involved in national security,” but the truth is that the
multiple agencies have jurisdictional prerogatives and interagency communication difficulties).
377. JAMES L. SUNDQUIST, THE DECLINE AND RESURGENCE OF CONGRESS 306 (1981).
378. See Robert Bejesky, Politico-International Law, 57 LOY. L. REV. 29, 74–75 (2011) (discussing
the impact of the appointment of like-minded neoconservatives during the Iraq War). The President
delegates responsibilities to cabinet members, particularly under the Subdelegation Act. Paul R.
Verkuil, Public Law Limitations on Privatization of Government Functions, 84 N.C. L. REV. 397, 426–27
(2006).
379. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 728–29 (2008). Congress may
approve of an appointment that the President can unilaterally remove. Alexander Hamilton and
other Framers opposed permitting the President to have the unilateral right to remove
congressionally-approved appointees, but it was ultimately allowed. THE FEDERALIST NO. 77
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Congress cannot divest Commander in Chief functions to another official,
even though Congress has considerable power to assign specific functions
to executive officials or employees who are “independent” of the
President.380 Fifth, the President possesses the authority to enter into
treaties and executive agreements, conduct diplomacy, and interact with
international organizations, which give the Executive substantial dominion
over foreign policy.381 Thus, Congress is more effective in constraining
the President’s powers with regard to domestic affairs.382
Perhaps the most important variable influencing all of these institutional
factors is the progression of geopolitics. After World War II, the United
States became the clear dominant military and economic power in the
world, which vastly expanded presidential power.383 The United States
military has over one million soldiers, sophisticated weapons, hundreds of
military bases across the United States, and hundreds of military
installations in foreign countries.384 Many of the United States’ foreign
(Alexander Hamilton); Gerhard Casper, An Essay in Separation of Powers: Some Early Versions and
Practices, 30 WM. & MARY L. REV. 211, 233–35 (1989).
380. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 1102–04 (2008). Likewise, the Executive’s
superintendance function of the military is mutually supportive of the presidential appointment
process. See generally id. at 984–86, 989–91, 998, 1031 (providing a historical analysis of the
President’s appointment powers from Antebellum to Post-Reconstruction). Increasing power over
the administrative state would likely influence the military even though the military is an executive
department and not an administrative agency within the Framers’ structure of checks and balances.
Geoffrey Corn & Eric Talbot Jensen, The Political Balance of Power over the Military: Rethinking the
Relationship Between the Armed Forces, the President, and Congress, 44 HOUS. L. REV. 553, 559–60 (2007).
Three bases for this assertion are provided: “(1) the fact that members of the military, even highranking members, do not serve at the ‘pleasure of the President’ in the same way as other executive
department officials; (2) the inapplicability of the power of impeachment to military officers; and (3)
the President’s use of executive privilege.” Id. at 585. Different treatment is expected because the
armed forces existed when the United States Constitution was ratified, and the Constitution included
overlapping congressional and presidential powers for the military, whereas the proliferation of
administrative agencies came much later.
381. José E. Alvarez, The Internationalization of U.S. Law, 47 COLUM. J. TRANSNAT’L L. 537, 574
(2009).
382. Aaron Wildavsky, The Two Presidencies, SOCIETY, Jan./Feb. 1998, at 21–27, 30–31; see also
Samuel P. Huntington, Congressional Responses to the Twentieth Century, in THE CONGRESS AND
AMERICA’S FUTURE 29–32 (David B. Truman ed., 2d ed. 1973) (detailing the contemporaneous
degradation of congressional control over foreign policy and the strengthening of congressional
control over executive agencies).
383. Kim Lane Scheppele, Law in a Time of Emergency: States of Exception and the Temptations of
9/11, 6 U. PA. J. CONST. L. 1001, 1012–15 (2004); Michael Zuckerman, Charles Beard and the
Constitution: The Uses of Enchantment, 56 GEO. WASH. L. REV. 81, 83–84 (1987).
384. See Hugh Gusterson, Empire of Bases, BULL. OF THE ATOMIC SCIENTIST (Mar. 10, 2009),
http://thebulletin.org/web-edition/columnists/hugh-gusterson/empire-of-bases
(noting
the
Pentagon holds 865 military installations in foreign countries).
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military installations are relics of the Cold War, but the events of 9/11 and
the “war on terrorism” reinvigorated military expansion.385
E. Jurisprudential Guidance
In Marbury v. Madison,386 the Supreme Court held the Judiciary interprets
the Constitution.387 Court precedent provides guidance to mitigate
altercations between the Executive and Congress over war powers and
reduces ambiguity when controversies arise. Early cases confirmed the
distinct roles of the Legislative and Executive Branches in war powers and
certified that the Framers intended the Judiciary to have a meaningful role
in adjudicating disputes between the political branches over foreign and
military affairs.388 The Court regularly granted certiorari on war powers
questions for over 150 years, but then became reluctant to examine the
scope of the Commander in Chief authority on political questions,
standing, ripeness, and mootness grounds after dozens of cases challenged
presidential power during the Vietnam War.389
385. Robert Bejesky, Geopolitics, Oil Law Reform, and Commodity Market Expectations, 63 OKLA. L.
REV. 193, 228 n.231, 265, 272–73 (2011); Robert Bejesky, Politico International Law, 57 LOY. L. REV.
29, 41–42 (2011); Marcus Weisgerber, Lawmakers Want AFRICOM Headquarters in U.S., MILITARY
TIMES (Apr. 5, 2011, 8:47 PM), http://www.militarytimes.com/news/2011/04/military-africomheadquarters-lawmakers-lobby-040511w/.
386. Marbury v. Madison, 5 U.S. 137 (1803).
387. See id. at 177, 180 (“It is emphatically the province and duty of the judicial department to
say what the law is [and] that a law repugnant to the [C]onstitution is void.”).
388. See JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF
VIETNAM AND ITS AFTERMATH 55 (1993) (arguing that “a general judicial power . . . to invalidate
decisions made by a government official or agency other than to which they were entrusted by the
document[] is constitutionally unproblematic”); Geoffrey S. Corn, Presidential War Power: Do the Courts
Offer Any Answers?, 157 MIL. L. REV. 180, 209–12 (1998) (examining early American case law in
which the Judiciary circumscribed presidential war powers); Jordan J. Paust, Above the Law: Unlawful
Executive Authorizations Regarding Detainee Treatment, Secret Renditions, Domestic Spying, and Claims to
Unchecked Executive Power, 2007 UTAH L. REV. 345, 388 (2007) (“[N]umerous cases throughout our
history clearly affirm that the judiciary has constitutionally based power to interpret international law
and to review various decisions and actions taken by the Executive during war . . . .”).
389. See Mitchell v. Laird, 488 F.2d 611, 613–16 (D.C. Cir. 1973) (refusing to rule on the
constitutionality of the Vietnam War based on the political question doctrine); DaCosta v. Laird, 471
F.2d 1146, 1147–48 (2d Cir. 1973) (holding that the lawfulness of the President’s directive to mine
ports in North Vietnam was a non-justiciable political question); Massachusetts v. Laird, 451 F.2d 26,
28–34 (1st Cir. 1971) (“[I]n a situation of prolonged but undeclared hostilities, where the executive
continues to act not only in the absence of any conflicting congressional claim of authority but with
steady congressional support, the Constitution has not been breached.”); Orlando v. Laird, 443 F.2d
1039, 1042–44 (2d Cir. 1971) (holding that determining the constitutionality of the Vietnam War was
beyond the scope of judicial review); Baker v. Carr, 369 U.S. 186, 198 (1962) (“[Nonjusticiability
means that the] inappropriateness of the subject matter for judicial consideration . . . [in which]
consideration of the cause is not wholly and immediately foreclosed; rather, the Court’s inquiry
necessarily proceeds to the point of deciding whether the duty asserted can be judicially identified
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Gilligan v. Morgan390 signaled the Supreme Court’s tendency to avoid
cases involving war powers.391 The Court denied certiorari to draftees
who challenged the constitutionality of the Vietnam War and the Gulf of
Tonkin Resolution.392 Perhaps most disconcerting about the Court’s
failure to address the claims in Morgan was that Congress repealed the Gulf
of Tonkin Resolution after the war;393 however, such revocation did not
undo the negative ramifications of the war. After Congress annulled the
Resolution, challenges seem warranted because the annulment suggested
that government officials drafted citizens, deployed troops to Vietnam,
and waged war with questionable authority. Court precedent had the
potential to place the war into proper context.
Commentators
and its breach judicially determined, and whether protection for the right asserted can be judicially
molded.”). “The political question doctrine excludes from judicial review those controversies which
revolve around policy choices and value determinations constitutionally committed for resolution to
the halls of Congress or the confines of the Executive Branch.” Japan Whaling Ass’n v. Am.
Cetacean Soc’y, 478 U.S. 221, 230 (1986); see also Marbury, 5 U.S. at 170 (“Questions, in their nature
political, or which are, by the [C]onstitution and laws, submitted to the [E]xecutive, can never be
made in this court.”); Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J.
1199, 1213, 1221–22 (2006) (stating that early-American courts regularly decided war power dispute
cases on the merits, but that during the early years of the Vietnam conflict, courts routinely dismissed
such cases as non-justiciable); Louis Henkin, Is There a “Political Question” Doctrine?, 85 YALE L.J. 597,
597 (1976) (“Political questions [are] issues to be resolved and decisions to be made by the political
branches of government and not by the courts . . . .”); Nagwa Ibrahim, The Origins of Muslim
Racialization in U.S. Law, 7 UCLA J. ISLAMIC & NEAR E.L. 121, 149 (2008) (noting the Court in
Hamdi held that “[w]ithout doubt, our Constitution recognizes that core strategic matters of
warmaking belong in the hands of those who are best positioned and most politically accountable for
making them”) (citations omitted).
390. Gilligan v. Morgan, 413 U.S. 1 (1973).
391. See id. at 3, 7, 10 (dismissing a request by students at Kent State University for declaratory
and injunctive relief to address alleged violations of the students’ First Amendment free-speech rights
by Ohio National Guard troops as a non-justiciable question). In a concurrence in Rasul v. Bush,
Justice Kennedy explained, “[T]here is a realm of political authority over military affairs where the
judicial power may not enter. The existence of this realm acknowledges the power of the President
as Commander in Chief, and the joint role of the President and the Congress, in the conduct of
military affairs.” Rasul v. Bush, 542 U.S. 466, 487 (2004) (Kennedy, J., concurring).
392. Holtzman v. Schlesinger, 414 U.S. 1304, 1314–15 (1973); Mora v. McNamara, 389 U.S.
934, 938 (1967).
393. See Victoria Scharuda, Comment, Congress’ Spending Power and the Deployment of Troops to Saudi
Arabia—“The Purse and the Sword” Revisited, 5 TEMP. INT’L & COMP. L.J. 343, 348 (1992) (“It took
approximately two decades for Congress to end the United States’ involvement in the Vietnam War.
With the enactment and subsequent repeal of the Gulf of Tonkin Resolution, the relationship
between the President and Congress deteriorated. Congressional leaders felt they had no choice but
to use their spending power to stop the Vietnam War.”). In a statement to Congress as the Vietnam
War was ending, Senator Fulbright remarked: “‘Insofar as the consent of this body is said to derive
from the Gulf of Tonkin Resolution, it can only be said that the resolution, like any other contract
based on misrepresentation, in my opinion, is null and void.’” Lori Fisler Damrosch, Comment, War
and Uncertainty, 114 YALE L.J. 1405, 1409 (2005).
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vociferously argued the Court should address Vietnam War questions,394
but Justice Douglas contended that “[t]he question of an unconstitutional
war is neither academic nor ‘political.’”395
Other abstentions followed. In the 1980s, members of Congress
challenged President Reagan’s limited use of the military in undeclared
conflicts, but courts dismissed the cases as political questions.396 In 1990,
fifty-four congresspersons filed a case against President Bush for troop
buildups in the Persian Gulf prior to the 1991 Gulf War, but the court
dismissed the case as unripe.397 The court held:
[I]f the Congress decides that United States forces should not be employed
in foreign hostilities, and if the Executive does not of its own volition
abandon participation in such hostilities, action by the courts would appear
to be the only available means to break the deadlock in favor of the
constitutional provision.398
Months later, Congress enacted the Authorization for Use of Military Force
Against Iraq Resolution.399 Years later, members of Congress similarly
challenged President Clinton’s airstrikes in Kosovo, but once more, the
court refused to hear the case.400
In short, if the Judiciary does not address a pertinent issue and the
Executive pursues a controversial action without consequence, then future
quandaries and political stalemates may lead to an expansion of the
Executive Branch’s war powers.401 John Hart Ely believed the Judiciary
394. E.g., Lawrence R. Velvel, The War in Viet Nam: Unconstitutional, Justiciable, and Jurisdictionally
Attackable, 16 U. KAN. L. REV. 449, 479–80 (1968) (arguing cases that challenged the President’s
authority to go to war in Vietnam without congressional approval are not political questions, because
such cases did not ask the courts to decide whether they should have gone to war).
395. Massachusetts v. Laird, 400 U.S. 886, 900 (1970) (Douglas, J., dissenting).
396. Gary M. Stern & Morton H. Halperin, Introduction, in THE U.S. CONSTITUTION AND THE
POWER TO GO TO WAR: HISTORICAL AND CURRENT PERSPECTIVES 1, 3 (Gary M. Stern & Morton
H. Halperin eds. 1994). Courts refused to hear cases regarding President Reagan’s actions in Central
America after twenty-nine members of Congress challenged the action in federal court. Lowry v.
Reagan, 676 F. Supp. 333, 334, 339–41 (D.C. Cir. 1987); Sanchez-Espinoza v. Reagan, 770 F.2d 202,
208–09 (D.C. Cir. 1985); Crockett v. Reagan, 558 F. Supp. 893, 895, 898–903 (D.C. Cir. 1982).
397. Dellums v. Bush, 752 F. Supp. 1141, 1144 (D.C. Cir. 1990).
398. Id. at 1144 n.5. Judge Greene rendered a strong decision and told the President that
congressional assent was necessary to go to war, and if Congress sought to enjoin the President, then
it should do so through political mechanisms. Jules Lobel, Courts As Forums for Protest, 52 UCLA L.
REV. 477, 538 (2004).
399. Authorization for Use of Military Force Against Iraq Resolution, H.R.J. Res. 77, 102d
Cong. (1991).
400. Campbell v. Clinton, 203 F.3d 19, 20–24 (D.C. Cir. 2000).
401. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—Framing
the Problem, Doctrine, and Original Understanding, 121 HARV. L. REV. 689, 723 (2008).
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could assist in assuring Congress observes constitutional responsibilities
and could further trigger a “judicial remand” to correct a legislature’s
failure to act.402 Similarly, courts that accept the premise that the
Judiciary should play a more prominent role in foreign affairs403 would
likely provide a more puissant check on the Executive.404 Therefore, it
appears the Court contributed substantial precedent that affirmed the
original understanding of constitutional war powers, but with more recent
judicial reluctance to address cases with changing factual circumstances,
the President’s legal counsel is now given broad discretion in interpreting
such powers.
F. Legal Advice
1. Legal Counsel Generally and Their Obligation to Be Objective
The more that factual scenarios involving military action appear
unprecedented or novel, the more often legal advisors, particularly in the
Attorney General’s Office of Legal Counsel and White House, can
preferentially construe precedent and potentially amplify the President’s
authority vis-à-vis Congress. If the Executive adopts the legal advice of
402. JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM
AFTERMATH 54–55 (1993); see Harold Hongju Koh, Setting the World Right, 115 YALE L.J.
2350, 2354 (2006) (stating it is widely accepted that constitutional checks and balances extend to
foreign policy).
403. THOMAS M. FRANCK, POLITICAL QUESTIONS/JUDICIAL ANSWERS: DOES THE RULE OF
LAW APPLY TO FOREIGN AFFAIRS? 8–9 (1992).
See generally MICHAEL J. GLENNON,
CONSTITUTIONAL DIPLOMACY 80–81 (1990) (“The President’s designation as Commander in Chief
. . . appears to have implied no substantive authority to use the armed forces . . . .”). The Supreme
Court frequently avoided the review of foreign affairs cases on justiciability grounds. Goldwater v.
Carter, 444 U.S. 996, 997 (1979) (plurality opinion) (opining that a dispute “is not ready for judicial
review unless and until each branch has taken action asserting its constitutional authority,” and “the
political branches reach a constitutional impasse”); Baker v. Carr, 369 U.S. 186, 217 (1962) (holding
that a political question arises when there is “a textually demonstrable constitutional commitment of
the issue to a coordinate political department; or a lack of judicially discoverable and manageable
standards for resolving it; or the impossibility of deciding without an initial policy determination of a
kind clearly for nonjudicial discretion”; or “the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made; or the potentiality of
embarrassment from multifarious pronouncements by various departments on one question”).
404. Court members may decide controversial cases in a manner consistent with ideological
predispositions. See Eric K. Yamamoto, White (House) Lies: Why the Public Must Compel the Courts to
Hold the President Accountable for National Security Abuses, 68 LAW & CONTEMP. PROBS., Spring 2005, at
285, 290 (2005) (“[The fact] that the judiciary checks the executive[] is rooted in a widely-held
fallacy—that as a separate co-equal branch of government it is politically independent and that its
judgments are necessarily neutral and objective . . . . To maintain public legitimacy judges have to
speak in the language of statutes, rules, and case precedents.”).
AND ITS
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the government attorney and implements a controversially assertive action,
and neither Congress nor the Judiciary takes steps to annul the action or
punish a political transgression, the situation may impart apparent
precedent countenancing presidential expansionism. However, it is not
evident whether interpretations inconsistent with existing court precedent
will be validated. If Congress does not authorize, but is in accord with the
action of the Executive, this may be tacit assent rather than evidence of
unilateralism. Without congressional assent, future presidential actions
may be illegitimate or unconstitutional if based on faulty precedent. Yet,
proponents of expanding presidential power may simply ignore faulty
premises. Summarizing several causes for recent defective understandings
regarding war powers, Louis Fisher summarized:
There are many reasons why the original constitutional design of keeping the
war power with Congress has been undermined and violated. The main
reason is presidential adventurism and disrespect for constitutional
boundaries. However, Presidents could not have succeeded without the
help of a supine Congress, a federal judiciary that fell inactive beginning with
the Vietnam War, academic writings, and misconceptions promoted by the
media. Added to this mix are the contributions of the neoconservatives, the
Federalist Society, and the writings of [Professor] John Yoo [as an attorney
in the OLC].405
Pursuant to the Judiciary Act of 1789, the Attorney General can advise
the President and other heads of the Executive Branch on legal
ramifications of government actions upon request.406 The OLC is a
delegate of the Attorney General for this advisory role and began issuing
opinions for legal guidance to the Executive in 1933.407 The OLC has a
guiding principle: “When providing legal advice to guide contemplated
[E]xecutive [B]ranch action, OLC should provide an accurate and honest
appraisal of applicable law . . . .”408 An OLC lawyer has a greater
obligation than a private sector attorney does to justly appraise opposing
views of an issue when imparting legal guidance.409 OLC Assistant
405. Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1213
(2006).
406. See 28 U.S.C. § 511 (2006) (“The Attorney General shall give his advice and opinion on
questions of law when required by the President.”).
407. Rachel Ward Saltzman, Note, Executive Power and the Office of Legal Counsel, 28 YALE L. &
POL’Y REV. 439, 441 (2010).
408. Principles to Guide the Office of Legal Counsel (Dec. 21, 2004), available at
http://www.acslaw.org/files/2004%20programs_OLC%20principles_white%20paper.pdf.
409. See FREDERICK A.O. SCHWARZ, JR. & AZIZ Z. HUQ, UNCHECKED AND UNBALANCED:
PRESIDENTIAL POWER IN A TIME OF TERROR 190–91 (2007) (“In short, an OLC lawyer giving
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Attorney General Randolph Moss suggested the advisor “should take the
obligation neutrally to interpret the law as seriously as a court.”410
Alternatively, White House legal counsel issue fewer guiding principles
regarding advisory obligations, which may incline them to advocate for the
President.411 However, the lack of explicit standards set for the White
House does not mean that generally required professional responsibility
rules or guiding principles for government attorneys are inapplicable. The
leading view of the American Bar Association (ABA), scholars,
government attorneys, and judges is that legal counsel for political offices
are required to provide objective and independent legal advice to serve the
public interest.412 The Restatement (Third) of the Law Governing
Lawyers explains that the government lawyer “must seek to advance the
public interest . . . and not merely the partisan or personal interests of the
government entity or officer involved.”413 In condemning advice
provided by Bush Administration attorneys, a “Lawyers’ Statement,”
signed by 106 lawyers, stated the White House legal advisor’s “ultimate
client” is the American people.414
The Model Rules of Professional Conduct and the ABA Model Code of
Professional Responsibility are not teeming with provisions that
advice has [an] even greater responsibility than a private attorney to do justice to all sides of a
question.”); see also DAVID LUBAN, LEGAL ETHICS AND HUMAN DIGNITY 198–99 (2007) (noting
that OLC advisors should be objective and independent).
410. Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal
Counsel, 52 ADMIN. L. REV. 1303, 1306 (2000).
411. See generally Geoffrey P. Miller, Government Lawyers’ Ethics in a System of Checks and Balances,
54 U. CHI. L. REV. 1293, 1294–96 (1987) (exploring intuitions about ethical responsibilities of agency
attorneys).
412. Jesselyn Radack, Tortured Legal Ethics: The Role of the Government Advisor in the War on
Terrorism, 77 U. COLO. L. REV. 1, 10 (2006); see also In re Lindsey, 148 F.3d 1100, 1109 (D.C. Cir.
1998) (“‘It is to say that the lawyer’s employment requires him to observe in the performance of his
professional responsibility the public interest sought to be served by the governmental organization
of which he is a part.’” (quoting Federal Bar Association Ethics Committee, The Government Client and
Confidentiality: Opinion 73-1, 32 FED. B.J. 71, 72 (1973))); Jones v. Heckler, 583 F. Supp. 1250, 1256 n.7
(N.D. Ill. 1984) (“[Legal] counsel for the United States [have] a special responsibility to the justice
system.”); MODEL RULES OF PROF’L CONDUCT R. 2.1 (2002) (“In representing a client, a lawyer
shall exercise independent professional judgment and render candid advice.”); Catherine J. Lanctot,
The Duty of Zealous Advocacy and the Ethics of the Federal Government Lawyer: The Three Hardest Questions, 64
S. CAL. L. REV. 951, 962 (1991) (“The Model Code also stresses ‘[t]he professional judgment of a
lawyer should be exercised, within the bounds of the law, solely for the benefit of his client and free
of compromising influences and loyalties.’”); Robert C. Power, Lawyers and the War, 34 J. LEGAL
PROF. 39, 72 (2009) (stating “government attorneys must provide the most accurate and complete
legal advice to government decision makers”).
413. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 97 cmt. f (1998).
414. George C. Harris, The Rule of Law and the War on Terror: The Professional Responsibilities of
Executive Branch Lawyers in the Wake of 9/11, 1 J. NAT’L SEC. L. & POL’Y 409, 416–17 (2005).
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exclusively apply to government attorneys,415 but there are generally
applicable standards. For example, attorneys should not furnish advice
that is likely to lead to a violation of existing law or abet illegal or unethical
conduct.416 Rule 2.1 states: “[I]n representing a client, a lawyer shall
exercise independent professional judgment and render candid advice,”
which may include referring to extralegal “considerations such as moral,
economic, social and political factors, that may be relevant to the client’s
situation.”417 Also, commentary to the Rules explain that the government
lawyer has a responsibility “under applicable law to question such conduct
[of agency officials] more extensively than a lawyer for a private
organization in similar circumstances.”418
2. Pressure, Politicization, or Zealous Advocate?
Government attorneys have conflicting interests.419 It is true that
government attorneys must defend the United States government as an
advocate in disputes,420 but they must also enforce the law, and consider
other interests when providing legal advice anteceding a war powers
action. Members of the legal profession generally rebuked opinions
provided by Bush Administration attorneys. Professor Leila Nadya Sadat
opined that the Administration was “relying upon lawyers to pen
justifications for controversial government activities” that derogated the
law.421 Professor Power wrote that “[a]s long as Yoo could deliver OLC
415. Id.; Jesselyn Radack, Tortured Legal Ethics: The Role of the Government Advisor in the War on
Terrorism, 77 U. COLO. L. REV. 1, 37, 41–42 (2006).
416. See MODEL RULES OF PROF’L CONDUCT R. 8.4 (2002) (“It is professional misconduct for
a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation.”); id. R.
3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless
there is a basis in law and fact for doing so that is not frivolous . . . .”).
417. Id. R. 2.1.
418. Id. R. 1.13 cmt. 9 (2003); see also id. cmt. 6 (“If the lawyer’s services are being used by an
organization to further a crime or fraud by the organization, Rules 1.6(b)(2) and 1.6(b)(3) may permit
the lawyer to disclose confidential information.”).
419. See Catherine J. Lanctot, The Duty of Zealous Advocacy and the Ethics of the Federal Government
Lawyer: The Three Hardest Questions, 64 S. CAL. L. REV. 951, 999 n.202 (1991) (illustrating an anomaly
where Solicitor General Archibald Cox argued both sides of a Supreme Court case); Note,
Developments in the Law: Conflicts of Interest in the Legal Profession, 94 HARV. L. REV. 1244, 1414 (1981)
(“A government lawyer serves the interests of many different entities: his supervisor in the
department or agency, the agency itself, the statutory mission of the agency, the entire government of
which that agency is a part, and the public interest.”).
420. See generally Douglas W. Kmiec, OLC’s Opinion Writing Function: The Legal Adhesive for a
Unitary Executive, 15 CARDOZO L. REV. 337, 374 (1993) (examining “the issue of whether an
Attorney General should be an advocate for the President or an impartial judicial decisionmaker”).
421. Leila Nadya Sadat, Ghost Prisoners and Black Sites: Extraordinary Rendition Under International
Law, 37 CASE W. RES. J. INT’L L. 309, 313 (2006).
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opinions supporting White House policy preferences, . . . he was as good
as a unanimous Supreme Court . . . . [E]ven an erroneous OLC opinion
would probably enable those who had followed it to avoid liability.”422
Adam Liptak wrote that the OLC’s notorious memoranda “raise profound
questions about the ethical and moral limits of what lawyers can and
should do in advising their clients.”423 Jesselyn Radack, a former legal
advisor to the Department of Justice’s Professional Responsibility
Advisory Office, explained that “[t]he torture memoranda were more than
just a perversion of the role of the government lawyer[;] they were a
distortion of the rule of law itself.”424 Questioning whether legal advisors
who authorized torture could bring someone to justice, Professor M.
Cherif Bassiouni wrote: “[H]ow much of a defense will their opinions be
for the senior officials who solicited that advice and pressed for it,
particularly if it was clear that this was the outcome they sought?”425
In defense of his opinions, Yoo maintained he was being neutral and
making objective legal arguments and contended that previous
administrations were adrift for not endorsing a more expansive vision of
422. Robert C. Power, Lawyers and the War, 34 J. LEGAL PROF. 39, 77 (2009); see also Stuart
Streichler, Mad About Yoo, or, Why Worry About the Next Unconstitutional War?, 24 J.L. & POL. 93, 93
(2008) (“Exactly two weeks after September 11, . . . [Yoo] completed a memorandum affirming the
President’s ‘independent and plenary’ authority to ‘use military force abroad.’”).
423. Adam Liptak, The Nation: Torture and Legal Ethics[:] How Far Can a Government Lawyer Go?,
N.Y. TIMES (June 27, 2004), http://www.nytimes.com/2004/06/27/weekinreview/the-nationtorture-and-legal-ethics-how-far-can-a-government-lawyer-go.html.
424. Jesselyn Radack, Tortured Legal Ethics: The Role of the Government Advisor in the War on
Terrorism, 77 U. COLO. L. REV. 1, 35 (2006); see also Catherine Powell, Scholars’ Statement of Principles for
the New President on U.S. Detention Policy: An Agenda for Change, 47 COLUM. J. TRANSNAT’L L. 339, 352
(2009) (“The new Administration should apply an internationally accepted and accurate
understanding of international law, rather than the idiosyncratic and often inaccurate view of
international law advanced by the Bush Administration’s Office of Legal Counsel . . . .”). The ABA
adopted a resolution against “any use of torture or other cruel, inhuman or degrading treatment or
punishment upon persons within the custody or under the physical control of the United States
government . . . and any endorsement or authorization of such measures by government lawyers
. . . .” AM. BAR ASS’N, REPORT TO THE HOUSE OF DELEGATES, RESOLUTION 10-B: TORTURE
POLICY, at 1 (rev. ed. 2004), available at http://www.americanbar.org/ content/ dam/aba/ migrated/
poladv/priorities/torture/torturepolicy2004_10B.authcheckdam.pdf.
425. M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 CASE
W. RES. J. INT’L L. 389, 403 (2006); see also Jordan J. Paust, Executive Plans and Authorizations to Violate
International Law Concerning Treatment and Interrogation of Detainees, 43 COLUM. J. TRANSNAT’L L. 811,
862 (2005) (“The role that several lawyers played . . . in a process of denial of protections under the
laws of war is far more serious than the loss of honor and integrity to power. It can form the basis
for a lawyer’s civil and criminal responsibility.”); David Weissbrodt & Amy Bergquist, Extraordinary
Rendition and the Humanitarian Law of War and Occupation, 47 VA. J. INT’L L. 295, 356 (2007) (“[S]uch
attorneys may be violating their professional obligations to make a good faith effort to determine the
scope of the law,” and may be “complicit in the resulting criminal conduct.”).
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presidential power.426
However, assuming the substantive advice was not just serendipitously
favorable to the Bush Administration, three explanations might further
explain the criticism: (1) Bush Administration attorneys were pressured, (2)
the advisors’ product was ideologically synchronized to the political
penchants of the Administration, and (3) Administration attorneys
zealously advocated for what the Administration desired.
First is the question of pressure, such as if the attorney feels irresolute
between being objective and remaining loyal to the administration. Noting
his experience in producing memoranda as a legal advisor in the United
States Department of State, Professor José Alvarez recalled “there were
considerable pressures to produce ‘can do’ memoranda . . . under such
pressures.”427
The Attorney General’s OLC historically promoted deference to
presidential authority,428 but there are also instances when the Attorney
General’s office offered war power opinions that were diverse, objective,
and did not seek to affirmatively burgeon executive war power.429
Notable examples include Attorney General Francis Biddle’s opposition to
President Franklin Roosevelt’s decision to intern Japanese-Americans
during World War II and Attorney General Elliot Richardson’s decision to
not support President Nixon’s desire to end the Watergate
investigation.430 Comparing these examples to recent circumstances,
former OLC attorney Bruce Fein explains: “OLC’s customary role was to
provide neutral legal advice to other agencies or Congress on
426. Robert C. Power, Lawyers and the War, 34 J. LEGAL PROF. 39, 47 (2009).
427. José E. Alvarez, Torturing the Law, 37 CASE W. RES. J. INT’L L. 175, 222 (2006); see also
Stuart Streichler, Mad About Yoo, or, Why Worry About the Next Unconstitutional War?, 24 J.L. & POL. 93,
125 (2008) (“Internal decision-making may get skewed because executive officials give advice based
on what they think the [P]resident wants to hear.”).
428. Rachel Ward Saltzman, Note, Executive Power and the Office of Legal Counsel, 28 YALE L. &
POL’Y REV. 439, 449 (2010).
429. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 941–52 (2008) (providing an historical review of
constitutional war powers).
430. Jesselyn Radack, Tortured Legal Ethics: The Role of the Government Advisor in the War on
Terrorism, 77 U. COLO. L. REV. 1, 45 (2006). Yet, for some of Nixon’s advisors, objectivity was an
afterthought. Former Watergate attorney John Dean explained that Nixon’s staff generally stuck by
him because of loyalty to the President even though “Richard Nixon and his White House were
corrupt, dishonest and venal . . . .” John W. Dean, III, Watergate: What Was It?, 51 HASTINGS L.J.
609, 620–22 (2000); Vanessa Blum, Culture of Yes: Signing Off on a Strategy, LEXISNEXIS,
http://www.lexis.com/ (available only with subscription: follow “Find a Source” hyperlink and
search “The National Law Journal”; click on “The National Law Journal”; then click on “Natural
Language” tab and search “Culture of Yes: Signing Off on a Strategy”) (noting that one reason
government attorneys crafted loopholes was due to a “strong loyalty to the [P]resident”).
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constitutional issues . . . . [I]t seems OLC is now acting as retained counsel
to agencies to present [the] best defense of their actions from the
perspective of an advocate, not as an impartial lawyer.”431
A related explanation for impaired objectivity is that the OLC is pressed
to issue obeisant opinions that ultimately aggrandize presidential power
because it lacks an institutionalized monopoly over the provision of legal
advice and must compete for clout with counsel of other agencies and
legal officers inside the government.432 If the OLC does pander to be
heard, perhaps the perils of not protecting institutional integrity can
manifest related problems within the Attorney General’s office. For
example, in late 2006, individuals at the Department of Justice forced
prosecutors “to manipulate prosecutorial decisions in an effort to entrench
their political allies,” but “[t]he White House, of course, denied any
involvement.”433 Congressional investigations subsequently revealed that
the White House participated in the “politicization of the American
criminal justice system.”434
The second interpretation is that lawyer-advisors were predestined to
bias because they were instructed to advocate. Newsweek explained that the
message from Bush to White House lawyers “was clear enough: find a way
to exercise the full panoply of powers granted the [P]resident by Congress
and the Constitution. If that meant pushing the boundaries of the law, so
be it.”435 If top officials made this call for advocacy papers and advisors
complied with the directive, the product by the terms of the request could
not be objective and independent, but would presumably be politicized
and impregnated with technicalities to justify predetermined preferences.
Should the lawyer reasonably construe the memo as detached guidance
that should be implemented or as an advocacy brief? Memoranda during
the Bush Administration did reflect advocacy rather than objective
analysis.436 Professor Power wrote that the “[g]overnment . . . is most
431. Jesselyn Radack, Tortured Legal Ethics: The Role of the Government Advisor in the War on
Terrorism, 77 U. COLO. L. REV. 1, 34 (2006) (internal quotation marks omitted).
432. Nelson Lund, Rational Choice at the Office of Legal Counsel, 15 CARDOZO L. REV. 437, 446
n.19, 486 (1993).
433. Eric Lane, Frederick A.O. Schwarz, Jr. & Emily Berman, Too Big a Canon in the President’s
Arsenal: Another Look at United States v. Nixon, 17 GEO. MASON L. REV. 737, 770 (2010).
434. Id. at 770–71.
435. Evan Thomas, Full Speed Ahead: After 9/11, Bush and Cheney Pressed for More Power—and Got
It. Now, Predictably, the Questions Begin. Behind the NSA Spying Furor, NEWSWEEK (Jan. 8, 2006, 7:00
PM), http://www.thedailybeast.com/newsweek/2006/01/08/full-speed-ahead.html .
436. See George C. Harris, The Rule of Law and the War on Terror: The Professional Responsibilities of
Executive Branch Lawyers in the Wake of 9/11, 1 J. NAT’L SEC. L. & POL’Y 409, 431 (2005) (believing the
“[m]emos engage, for the most part, in advocacy rather than quasi-judicial weighing of the issues”).
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dangerous when government attorneys focus on finding loopholes and
rationalizing adventurous decisions.”437 After requesting advocacy briefs,
should the recipient of advisory memos within the White House perceive
the memos as objective and neutral?
Advisors in the Bush Administration pervaded well beyond pushing the
boundaries of the law. The Bush Administration contended the President
had the constitutional right to ignore laws that supposedly infringed on
Commander in Chief discretion.438 Congress defines the scope of the
Commander in Chief authority, and it did not suspend the panoply of
potentially applicable laws for President George W. Bush. However, if
one presumes the Commander in Chief power sustains virtually every
action the President takes, as the Bush Administration ostensibly did, then
the semblance of impunity has an obvious answer.439 President Nixon
was famous for stating “‘[w]hen the [P]resident does [something], that
means that it is not illegal.’”440 Henry Kissinger, Nixon’s Secretary of
State, remarked: “The illegal we do immediately. The unconstitutional
takes a little longer.”441 The President’s foremost obligation under Article
II is to “take Care that the Laws be faithfully executed,”442 which includes
directing and correcting actions of agents443 under the original conception
of unitary executive.444
The third interpretation is that executive appointments of like-thinking
attorneys would expectantly cultivate opinions that sanction preferred
437. Robert C. Power, Lawyers and the War, 34 J. LEGAL PROF. 39, 77 (2009).
438. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 944 (2008) (“The Administration of George W. Bush
has boldly argued that the President, in his capacity as Commander in Chief, has the constitutional
authority to disregard many laws that impinge upon his discretion to prosecute armed conflicts in the
manner he deems best.”).
439. See José E. Alvarez, Torturing the Law, 37 CASE W. RES. J. INT’L L. 175, 197 (2006) (“It
would appear that neither U.S. statutory nor federal law is really binding law, at least not for a
President (or an attorney general) who asserts that any [c]ongressional attempts to restrain the
President’s ‘plenary’ power over military operations . . . would be unconstitutional.”).
440. Harold Hongju Koh, Setting the World Right, 115 YALE L.J. 2350, 2359 (2006) (citing
Excerpts from Interview with Nixon About Domestic Effect of Indochina War, N.Y. TIMES, May 20, 1977, at
A16).
441. Id. (citing DuPre Jones, The Sayings of Secretary Henry, N.Y. TIMES, Oct. 28, 1973, § 6
(Magazine), at 91).
442. U.S. CONST. art. II, § 3.
443. Cynthia R. Farina, False Comfort and Impossible Promises: Uncertainty, Information Overload, and
the Unitary Executive, 12 U. PA. J. CONST. L. 357, 358 (2010).
444. See Jonathan T. Menitove, Note, Once More Unto the Breach: American War Power and a Second
Legislative Attempt to Ensure Congressional Input, 43 U. MICH. J.L. REFORM 773, 778 (2010) (stating the
Founders’ understanding of “unitary” did not include initiating hostilities or expanding executive
authority regarding the legislature).
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administrative actions. The Restatement (Third) of the Law Governing
Lawyers affirms, “[C]ourts have stressed that a lawyer representing a
governmental client must seek to advance the public interest in the
representation and not merely the partisan or personal interests of the
government entity or officer involved.”445
Supporters of the Bush Administration premised expansive presidential
power on the notion that distending executive authority was beneficial to
the presidential institution, the nation, and Americans because previous
administrations weakened the institution.446 Other scholars remind us
that the rendition of a weak presidency in American government is
inaccurate and that there was an expansion of executive authority beyond
the constitutionally required balance of power between the Congress and
the President long before George Bush took office.447 Professor Spitzer
remarked that Bush’s unitary power claims are “the fulfillment or
realization of some long lost or misunderstood vision of the Constitution’s
[F]ramers regarding executive power.”448
445. RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS § 97 cmt. f (1998).
446. See JACK GOLDSMITH, THE TERROR PRESIDENCY: LAW AND JUDGMENT INSIDE THE
BUSH ADMINISTRATION 89 (2007) (noting Bush Administration officials “shared a commitment to
expanding presidential power”).
447. See generally MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 80–81 (1990) (“In
recent decades, presidents have assumed the power to involve the armed forces in . . . warfare.”
(internal quotation marks omitted)); LOUIS HENKIN, CONSTITUTIONALISM, DEMOCRACY, AND
FOREIGN AFFAIRS 30, 41–43 (1990) (discussing the shift in focus from the President’s power to the
power of Congress); PETER IRONS, WAR POWERS: HOW THE IMPERIAL PRESIDENCY HIJACKED
THE CONSTITUTION 2 (2005) (“[P]residents from Theodore Roosevelt through George W. Bush
have undermined the Constitution by usurping the power to ‘declare war’ that its Framers have
placed in the hands of Congress.”); ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY, at
ix (1973) (detailing the gradual assumption of “war-making power” by the presidency throughout the
twentieth century); Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs:
Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255, 1256 (1988) (“[Suggesting] that the flaws in the
current decisionmaking system stem from a growing trend of executive initiative.”); William P.
Marshall, The Limits on Congress’s Authority to Investigate the President, 2004 U. ILL. L. REV. 781, 782
(2004) (“The presidency is now indisputably the most powerful branch of the federal government
. . . .”); Ariel Meyerstein, The Law and Lawyers As Enemy Combatants, 18 U. FLA. J.L. & PUB. POL’Y 299,
303–04 (2007) (“This perversion of the rule of law [during the Bush administration] has come hand
in hand with a radical reinterpretation of the powers of the Executive, which is a continuation of a
struggle . . . over the last two decades.”); J. Gregory Sidak, To Declare War, 41 DUKE L.J. 27, 36 (1992)
(proclaiming the fear of legislative encroachment has diminished).
448. Robert J. Spitzer, Bush, the Post-Bush Presidency, and the Constitutional Order, at 8, Presentation
at the Ann. Meeting of the Am. Pol. Sci. Ass’n, at 8, Toronto, Canada (Sept. 3, 2009), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1450695 (remarking that other activist
Presidents, such as Franklin D. Roosevelt and Lyndon Johnson, expanded executive power, but did it
by “traditional persuasion, bargaining[,] and other political tools”).
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3. Legal Objectivity, Not Zealotry
Jesselyn Radack encapsulated the professional responsibility rules in the
context of what transpired during the Bush Administration and noted that
the government advisor is responsible to provide “complete information
and evenhanded analysis necessary to understand the legal consequences
of proposed courses of action,” not to fulfill a “duty of zealous
advocacy.”449 The President is altogether entitled to appoint like-thinking
individuals who may personally prefer expanding executive power and is
free to issue a call for advocacy papers. However, when appointed as legal
advisors, these attorneys often sanction virtually everything the President
relishes by providing biased and condemnable legal opinions that are
frequently unreviewable because they are classified under national
security.450 Furthermore, political opposition and the public should
neither be forced to experience chagrin once actions are taken and
advisory memos are leaked or declassified, nor should they be obliged to
accede that the advisory process was legitimate.
G. Examples of Legal Advice
1. Introduction
This section considers the three most important nuggets of eccentric
historical interpretation that John Yoo utilized to contend that the
President has expansive inherent Commander in Chief powers;451 the
three interpretations are faulty premises that could engender controversial
and unconstitutional war powers actions.452 If one dispenses with
449. Jesselyn Radack, Tortured Legal Ethics: The Role of the Government Advisor in the War on
Terrorism, 77 U. COLO. L. REV. 1, 35 (2006).
450. See Classified Information Procedures Act, 18 U.S.C. App. III, § 1 (2006) (defining
“classified information” as “any information or material that has been determined by the United
States Government pursuant to an executive order, statute, or regulation, to require protection
against unauthorized disclosure for reasons of national security and any restricted data”); see also
Robert Bejesky, National Security Information Flow: From Source to Reporter’s Privilege, 24 ST. THOMAS L.
REV. (forthcoming 2012) (“White House Executive Orders designate what should be a classified
secret, but the President has considerable interpretive latitude and the ultimate decision over what,
how, and to what extent information should be classified or declassified is generally unreviewable.”).
451. See generally Tung Yin, Structural Objections to the Inherent Commander-in-Chief Power Thesis, 16
TRANSNAT’L L. & CONTEMP. PROBS. 965, 972–73 (2007) (discussing the duties that come with the
title of Commander in Chief); John C. Yoo, War and the Constitutional Text, 69 U. CHI. L. REV. 1639,
1639, 1677 (2002) (presenting “a complete textual and structural theory of a flexible approach to war
powers”).
452. See Deborah Pearlstein, The Constitution and Executive Competence in the Post-Cold War World,
38 COLUM. HUM. RTS. L. REV. 547, 548 (2007) (criticizing Yoo’s extreme expansivist position on
structuralist and historical bases and calling his premises “fact-intensive policy arguments”).
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mistaken propositions, factual applications are less likely to be contorted,
and one will discover there is little inherent presidential authority. The
flaws involve: (1) the Framers’ intent as applied to the text of the
Constitution; (2) the power of the Judiciary to review war power questions;
and (3) the assumption that Congress is relatively impotent after it grants
the President an authorization to use force.
2.
Original Intent
a. The Articles of Confederation
Scholars and Supreme Court Justices consistently affirm “that evidence
of the original understanding of the Constitution is relevant to any
discussion of the document’s meaning,”453 but a few commentators
gained notoriety for disregarding inconvenient truths and selecting
anomalistic morsels of history to expand Commander in Chief authority.
Yoo considered the information that scholars frequently overlook and
warned against interpreting what any “particularly influential Framer”
stated about war powers.454 For example, he suggested the founders
sought to emulate the British executive model,455 which incidentally
permitted the monarchy to initiate wars. The Framers had to assess the
British system because the British Crown dictated orders on the
Continental Congress456 and imposed the common law.457 However,
revering a governmental structure that was apparently so loathed and
suppressive that it led to the American Revolution is illogical and
453. JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN
AFFAIRS AFTER 9/11, at 25 (2005).
454. See id. at 25 (noting some scholars fail to focus on constitutional text and structure).
However, no Framer provides a basis for Yoo’s opinion. See Louis Fisher, Lost Constitutional Moorings:
Recovering the War Power, 81 IND. L.J. 1199, 1240 (2006) (stating Yoo’s model “is not an ideal
embodied anywhere in the Constitution”); Stuart Streichler, Mad About Yoo, or, Why Worry About the
Next Unconstitutional War?, 24 J.L. & POL. 93, 98 (2008) (criticizing Yoo’s interpretation of the
Framers’ intent).
455. See JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN
AFFAIRS AFTER 9/11, at 27 (2005) (“[W]e should not look exclusively at what a particularly
influential Framer said about the [War Powers] provision at the Federal Convention. To better
understand the historical context, we should look to the British [C]onstitution in the seventeenth and
eighteenth centuries, state constitutions, and the Articles of Confederation.”).
456. See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 316 (1936) (stating
international powers were transmitted to the states from the Crown); EDWARD KEYNES,
UNDECLARED WAR: TWILIGHT ZONE OF CONSTITUTIONAL POWER 25 (1982) (discussing the
influence the British system had on the Framers).
457. E.g., ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER:
THE ORIGINS 6 (1976) (noting the Framers’ overwhelming exposure to British institutions).
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inconsistent with history books, government records, and scholarship,
which evince that the Framers abruptly discarded the British model.458
Referencing the pre-constitutional history, Yoo stated: “[D]uring the
period leading up to the Constitution’s ratification, the power to initiate
hostilities and to control the escalation of conflict had long been
understood to rest in the hands of the [E]xecutive [B]ranch.”459 Louis
Fisher pointed out that during the pre-ratification period, “there was no
[E]xecutive [B]ranch in America. There was only the Continental Congress
. . . .”460 The Articles of Confederation stated that Congress had the
power to issue “a declaration of war,” which vested exclusive war powers
with the legislature and permitted individual states to defend against
border attacks.461 The Continental Congress was empowered to enact
“rules for the government and regulation of the said land and naval
forces” and the delegates afforded the plenary authority of “directing
[those] operations.”462 There could be no Commander in Chief unless
Congress appointed one and no means for an appointed executive to
initiate hostilities without congressional assent.
b. The Declare War Clause
Yoo claimed that the Constitution’s Declare War Clause does not have
any legal effect.463 “A declaration does not authorize or make, it
recognizes and proclaims.”464 He opined that the Constitution “suggests
458. Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1201
(2006).
459. Id. at 1241 (quoting Memorandum from John C. Yoo, Deputy Assistant Att’y Gen., Office
of Legal Counsel, to the Deputy Counsel to the President, The President’s Constitutional Authority
to Conduct Military Operations Against Terrorists and Nations Supporting Them, (Sept. 25, 2001),
available at http://www.justice.gov/olc/warpowers925.htm).
460. Id.; see also Curtiss-Wright, 299 U.S. at 316 (“Even before the Declaration, the colonies were
a unit in foreign affairs, acting through a common agency—namely the Continental Congress . . . .”);
EDWARD KEYNES, UNDECLARED WAR: TWILIGHT ZONE OF CONSTITUTIONAL POWER 25–28
(1982) (asserting there was no concept of executive power prior to the revolution).
461. ARTICLES OF CONFEDERATION of 1781, arts. VI, IX; EDWARD KEYNES, UNDECLARED
WAR: TWILIGHT ZONE OF CONSTITUTIONAL POWER 25 (1982).
462. ARTICLES OF CONFEDERATION of 1781, art. IX.
463. Stuart Streichler, Mad About Yoo, or, Why Worry About the Next Unconstitutional War?, 24 J.L.
& POL. 93, 95–96 (2008).
464. JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN
AFFAIRS AFTER 9/11, at 149 (2005); see also Robert Gray Bracknell, Real Facts, “Magic Language,” The
Gulf of Tonkin Resolution, and Constitutional Authority to Commit Forces to War, 13 NEW ENG. J. INT’L &
COMP. L. 167, 212 (2007) (opining that “[t]he ratifiers saw fit to vest Congress with the authority to
‘declare war,’ that is, to make communications to the nation and the world community regarding the
existence of a state of war. The declare war clause, however, is just that limited . . . .” Continuing,
“[T]he text of the Constitution clearly contemplates some war making role for the President, by
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that declaring war recognized a state of affairs—clarifying the legal status
of the nation’s relationship with another country—rather than authorized
the creation of that state of affairs.”465 Professor Harold Koh considered
this is another one of Yoo’s misrepresentations of the factual record.466
Yoo’s interpretation connotes that the President decides whether to go to
war and Congress merely blows a proverbial trumpet for the President.
Because the President is the “spokesperson for the nation” and the
executor of the law, it seems illogical to endow the lawmaking branch with
a “vocalizing” authority for the President’s desires. Contrarily, some
Framers emphasized the opposite was intended—that the Executive was
“nothing more than an institution for carrying the will of the Legislature
into effect.”467 James Madison wrote of Congress’s power:
[I]t must be evident, that although the executive may be a convenient organ
of preliminary communications with foreign governments, on the subjects of
treaty or war; and the proper agent for carrying into execution the final
determinations of the competent authority; yet it can have no pretensions,
from the nature of the powers in question compared with the nature of the
granting him a textually undefined ‘executive’ power and designating him as ‘Commander in Chief’ of
the Army and Navy”). In 1799, President Adams appointed George Washington “Commander in
Chief of all the armies” in preparation of war against France. Commission of George Washington as
Lieutenant General and Commander in Chief by President John Adams (July 4, 1798), available at
http://memory.loc.gov/mss/mgw/mgw8b/124/0100/0188.jpg. Adams used the same title used in
the Constitution that describes the President’s war power. Id. Washington had no authority to initiate
a war, but Adams granted Washington the power of a military general, which was the only authority
that Adams possessed. Id.
465. JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN
AFFAIRS AFTER 9/11, at 145 (2005). Yoo emphasized that “an earlier draft of the Constitution”
referred to Congress’s authority to “‘make’ war,” whereas the ratified Constitution states “‘declare’
war.” Memorandum from John C. Yoo, Deputy Assistant Att’y Gen., Office of Legal Counsel, to
the Deputy Counsel to the President, The President’s Constitutional Authority to Conduct Military
Operations Against Terrorists and Nations Supporting Them, (Sept. 25, 2001), available at
http://www.justice.gov/olc/warpowers925.htm. (citing 2 THE RECORDS OF THE FEDERAL
CONVENTION OF 1787, at 318–19 (Max Farrand ed., Yale Univ. Press rev. ed. 1966) (1911)).
466. See Harold Hongju Koh, A World Without Torture, 43 COLUM. J. TRANSNAT’L L. 641, 650
(2005) (disagreeing with Yoo’s point that “[t]he historical record demonstrates that the power to
initiate military hostilities, particularly in response to the threat of an armed attack, rests exclusively
with the President,” and also pointing out that it “ignores Congress’s power ‘to declare War,’ but also
suggests that” all of the official declarations of war over the nation’s history would have been
unnecessary (quoting Memorandum from John C. Yoo, Deputy Assistant Att’y Gen., Office of Legal
Counsel, to the Deputy Counsel to the President, The President’s Constitutional Authority to
Conduct Military Operations Against Terrorists and Nations Supporting Them, (Sept. 25, 2001),
available at http://www.justice.gov/olc/warpowers925.htm)); Stuart Streichler, Mad About Yoo, or,
Why Worry About the Next Unconstitutional War?, 24 J.L. & POL. 93, 94 n.8 (2008) (noting Yoo’s
promotion of the President’s “right” to begin war).
467. 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 65 (Max Farrand ed., Yale
University Press rev. ed. 1966) (1911).
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executive trust, to that essential agency which gives validity to such
determinations.468
To bolster the opinion, Yoo placed emphasis on the word “declare” and
noted that, instead, the Constitution could have said “make,” “begin,” or
“authorize” war.469 He referenced a dictionary definition of the word
declare, but did not cite a Framer or anyone else from the founding period
to support this argument.470 In a detailed critique of Yoo’s position on
the Declare War Clause, Professor Streichler remarked “it is no wonder
Yoo warns readers against paying attention to what [the Framers] said.”471
Evidence demonstrates that the Framers used the words make and
declare interchangeably; in every draft of the Constitution, the Framers
articulated virtually the same thing, which was to make or declare war, and
the states voted eight to one to vest these duties entirely with Congress.472
Moreover, there are conspicuous historical records of policy intentions to
establish this structure. For example, out of concern that the Executive
could aggrandize authority at the expense of the representatives of the
people,473 Alexander Hamilton expressed:
The Congress shall have power to “declare war”; the plain meaning of which
is, that it is the peculiar and exclusive province of Congress, when the nation is
468. Letters of Helvidius No. 1 (Aug. 11, 1793), in 6 THE WRITINGS OF JAMES MADISON,
1790–1802, at 146 (Gaillard Hunt ed. 1906).
469. Stuart Streichler, Mad About Yoo, or, Why Worry About the Next Unconstitutional War?, 24 J.L.
& POL. 93, 96 (2008).
470. Id. at 96–98.
471. Id. at 108.
472. EDWARD KEYNES, UNDECLARED WAR: TWILIGHT ZONE OF CONSTITUTIONAL POWER
34–35 (1982).
473. Alexander Hamilton wrote: “It is of the nature of war to increase the executive at the
expense of the legislative authority.” THE FEDERALIST NO. 8 (Alexander Hamilton). James
Madison noted that war is “the true nurse of executive aggrandizement.” Letters of Helvidius No. 3
(Sept. 14, 1793), in 6 THE WRITINGS OF JAMES MADISON, 1790–1802, at 174 (Gaillard Hunt ed.
1906). Madison also wrote, “[T]he [C]onstitution supposes, what the [h]istory of all [Governments]
demonstrates, that the [Executive] is the branch of power most interested in war, [and] most prone
to it. It has accordingly, with studied care, vested the question of war in the [legislature].” Letter
from James Madison to Thomas Jefferson (Apr. 2, 1798), in 6 THE WRITINGS OF JAMES MADISON
311, 312 (Gaillard Hunt ed. 1906); see also id. (June 13, 1793), at 130–31 (“[T]he right to decide the
question whether the duty [and] interest of the U.S. require war or peace under any given
circumstances, and whether their disposition be towards the one or the other seems to be essentially
[and] exclusively involved in the right vested in the Legislature, of declaring war in time of peace
. . . .”); THE FEDERALIST NO. 41 (James Madison) (opposing positions that could “aggregate power
of the general government” and consolidate power in the Executive); Jonathan T. Menitove, Note,
Once More Unto the Breach: American War Power and a Second Legislative Attempt to Ensure Congressional
Input, 43 U. MICH. J.L. REFORM 773, 781 (2010) (detailing “evidence of the Framers’ intent to lodge
America’s power to go to war with the national legislature”).
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at peace, to change that state into a state of war; whether from calculations of
policy, or from provocations or injuries received; in other words, it belongs
to Congress only, to go to War.474
James Madison stated that those who “conduct a war cannot in the
nature of things, be proper or safe judges, whether a war ought to be
commenced, continued, or concluded.”475 Madison also explained that
“executive powers ex vi termini [by the force of the term], do not include
the Rights of war [and] peace.”476 In 1793, Thomas Jefferson wrote: “[I]
opposed the right of the President to declare anything future on the
question, shall there or shall there not be war[?]”477 Constitutional
Convention delegate James Wilson emphasized: “This system . . . is
calculated to guard against [war]. It will not be in the power of a single
man, or a single body of men, to involve us in such distress; for the
important power of declaring war is vested in the legislature at large.”478
John Jay, the first Chief Justice of the Supreme Court, wrote “absolute
monarchs will often make war when their nations are to get nothing by it,
but for purposes and objects merely personal.”479
Yoo further remarked that Congress has the power of impeachment and
appropriations, which provide the power it needs to impede the president
from going to war.480 Prosecuting a war costs money, and Congress must
allocate funding before the President deploys soldiers.481 However,
divesting constitutional powers because Congress supposedly does not
require them is not a legitimate or recognized technique of constitutional
interpretation.
Why did every President with a declaration of war or an authorization to
use force go to Congress? Why are they called “authorizations to use
474. Examination of Jefferson’s Message to Congress No. 1 (Dec. 17, 1801), in 8 THE WORKS
Cabot Lodge ed. 1904).
475. Letters of Helvidius No. 1 (Aug. 24, 1793), in 6 THE WRITINGS OF JAMES MADISON,
1790–1802, at 148 (Gaillard Hunt ed. 1906) (emphasis omitted).
476. 1 RECORDS OF THE FEDERAL CONVENTION OF 1787, at 70 (Max Farrand ed., Yale
University Press rev. ed. 1966) (1911) (emphasis added).
477. THOMAS JEFFERSON, THE COMPLETE ANAS OF THOMAS JEFFERSON 176 (Franklin B.
Sawvel ed. 1903).
478. Stuart Streichler, Mad About Yoo, or, Why Worry About the Next Unconstitutional War?, 24 J.L.
& POL. 93, 99 (2008) (quoting 2 DEBATES IN THE SEVERAL STATE CONVENTION ON THE
ADOPTION OF THE FEDERAL CONSTITUTION 528 (Jonathan Elliot ed., J.B. Lippincott Co. 2d ed.
1836) (internal quotation marks omitted)).
479. THE FEDERALIST NO. 4 (John Jay).
480. Stuart Streichler, Mad About Yoo, or, Why Worry About the Next Unconstitutional War?, 24 J.L.
& POL. 93, 117 (2008).
481. See id. at 121 (noting that “no real war would occur” in a situation where Congress declares
war but the President refuses to dispatch soldiers).
OF ALEXANDER HAMILTON 249 (Henry
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force” and “declarations of war” and not “recognitions of war”? Why are
the terms for the use of force spelled out as conditions with language
expressing that Congress grants the President the authority to use the
military as “necessary and appropriate?”482 Furthermore, why did
Presidents consistently and overtly recognize that they could not use
offensive military force without congressional assent?
Despite this history, presidents do occasionally rhetorically suggest that
the unilateral use of force is valid. For example, George H. W. Bush
contended that he solicited congressional support for the 1991 Gulf War
but that the action did not require the assent from some “old goat . . . in
Congress,” because he had the “inherent” constitutional authority to carry
out the Gulf War as Commander in Chief.483 He also stated, “I don’t
think I need [Congress’s assent] . . . . I feel that I have the authority to
fully implement the United Nations resolutions.”484 Nonetheless,
President Bush did go to Congress, which narrowly granted congressional
authorization for the action.485 Presidents frequently strut inflated
authority, but their manifest actions signify cognizance that there is no
inherent authority.
c. Interpretation of the Authorization for the Use of Military Force
Indicative of assumptions regarding inherent authority, Yoo wrote,
“[T]he [post-9/11] Joint Resolution is somewhat narrower than the
President’s constitutional authority.”486 The post-9/11 sanction only
permitted the President to respond to individuals, states, or organizations
involved in the 9/11 attacks, but that assent to respond was interpreted
482. Authorization for Use of Military Force Against Iraq Resolution of 2002, H.R.J. Res. 114,
107th Cong. § 3 (2002) (“The President is authorized to use the Armed Forces of the United States
as he determines to be necessary and appropriate . . . .”).
483. 1 PUBLIC PAPERS OF THE PRESIDENTS OF THE UNITED STATES: GEORGE BUSH 1991, at
497 (1992); id. 1992–1993, at 995 (1993). Secretary of State James A. Baker treated the power to
declare war and formal resolutions as incidental as long as there was some form of consultation with
Congress. Crisis in the Persian Gulf: Hearings and Markup Before the Comm. on Foreign Affairs, 101st Cong.
101–02 (1990).
484. The President’s News Conference on the Persian Gulf Crisis, 27 WEEKLY COMP. PRES.
DOC. 25 (Jan. 9, 1991).
485. See CHARLES TIEFER, THE SEMI-SOVEREIGN PRESIDENCY: THE BUSH
ADMINISTRATION’S STRATEGY FOR GOVERNING WITHOUT CONGRESS 129–36 (1994) (describing
the close vote in the Senate of 53 to 47).
486. Memorandum from John C. Yoo, Deputy Assistant Att’y Gen., Office of Legal Counsel,
to the Deputy Counsel to the President, The President’s Constitutional Authority to Conduct
Military Operations Against Terrorists and Nations Supporting Them, (Sept. 25, 2001), available at
http://www.justice.gov/olc/warpowers925.htm.
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broadly.487 Yoo rendered a legal interpretation of the AUMF, which
opined that neither the War Powers Resolution nor the AUMF “can place
any limits on the President’s determinations as to any terrorist threat, the
amount of military force to be used in response, or the method, timing,
and nature of the response. These decisions, under our Constitution, are
for the President alone to make.”488 As detailed, Congress vests the
President with authority as Commander in Chief to use the military, and
Congress defines the terms of the sanction.489 Exceeding the conditions
of an authorization may make the President’s actions unconstitutional.
Presidential authority and discretion can be obfuscated by commingling
emergency powers and war powers, which may impart the impression that
once Congress grants authority to use military force, this begets emergency
powers.490 The President did indeed issue a year-long “national
emergency” following 9/11 and kept issuing emergencies annually in the
succeeding years.491 However, there was little factual or legal basis for
this. There have been no terrorist attacks on United States soil since
487. See Authorization for the Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001)
(explaining the limited powers given to the President: “Use all necessary and appropriate forces
against those nations, organizations, or persons he determines planned, authorized, committed, or
aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or
persons, in order to prevent any future acts of international terrorism against the United States by
such nations, organizations or persons”).
488. Memorandum from John C. Yoo, Deputy Assistant Att’y Gen., Office of Legal Counsel,
to the Deputy Counsel to the President, The President’s Constitutional Authority to Conduct
Military Operations Against Terrorists and Nations Supporting Them, (Sept. 25, 2001), available at
http://www.justice.gov/olc/warpowers925.htm; see also Jennifer Van Bergen & Douglas Valentine,
The Dangerous World of Indefinite Detentions: Vietnam to Abu Ghraib, 37 CASE W. RES. J. INT’L L. 449, 461
(2006) (acknowledging that “[t]hrough his Military Order, Bush granted himself extraordinary powers
to identify al Qaeda members and those who harbor them”). Hamdan v. Rumsfeld curbed expansive
interpretations of executive war power, but three Justices believed the President should have
discretion to manage military tribunals without judicial intervention because of the AUMF and the
alleged state of war after 9/11. Hamdan v. Rumsfeld, 548 U.S. 557, 676–78 (2006) (Scalia, J.,
dissenting). The President’s determination during a time of war should be granted a “heavy measure
of deference.” Id. at 680 (Thomas, J., dissenting).
489. Jules Lobel, Conflicts Between the Commander in Chief and Congress: Concurrent Power over the
Conduct of War, 69 OHIO ST. L.J. 391, 445 (2008).
490. See JOHN YOO, THE POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN
AFFAIRS AFTER 9/11, at 71 (2005) (observing that “the [P]resident [was] seen as the representative
and protector of the people, and his sole command over the military without formal legislative
control [was] crucial to the separation of powers and the public safety”); John Yoo, Transferring
Terrorists, 79 NOTRE DAME L. REV. 1183, 1235 (2004) (noting once a war is commenced, there is a
“different set of rules—the laws of war—than those that apply to domestic, peacetime affairs”).
491. 67 FED. REG. 58,317 (Sept. 12, 2002) (effective until Sept. 14, 2003); 68 FED. REG. 53,665
(Sept. 10, 2003) (effective until Sept. 14, 2004); 69 FED. REG. 55,313 (Sept. 10, 2004) (effective until
Sept. 14, 2005); 70 FED. REG. 54,229 (Sept. 8, 2005) (effective until Sept. 14, 2006).
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9/11,492 and Professor Ian Lustick reminds us there was no credible
evidence of “sleeper cells,” “attacks,” or “preparation for an attack.”493
Even if there were an attack, it is unclear how domestic dangers would be
linked to constitutional authorities for carrying out two wars in
Afghanistan and Iraq.
d. Informational Basis and Secrecy
Professors Nzelibe and Yoo’s practical argument contends that because
Congress does not have the level of information equal to that of the
President, the President “should have the constitutional authority to
initiate war . . . . [Regarding the AUMF-Iraq,] Congress brought no
independent collection or analysis.”494 Congress does have a weaker
informational basis, but this may also contrarily confirm why the President
should not possess the authority to initiate war. The President controls
the national security apparatus and can classify and declassify information
at will.495 Had President Bush not declassified all of the baseless
rumors—incessantly repeated dire rumors—to initiate the security crisis,
and kept data that disproved the classified claims, the false information
would not have deluded Congress and the American people.496 If the
President can initiate a war every time there is a sufficiently formidable
quantity of unverified, classified intelligence rumors, this would validate
the peril of “executive manipulation of information to exaggerate a
threat.”497
The Nixon Administration is an additional example of recognizing the
right of executive secrecy and misusing Framer intent. In United States v.
492. Brian Z. Tamanaha, Are We Safer from Terrorism? No, but We Can Be, 28 YALE L. & POL’Y
REV. 419, 419 (2010).
493. Ian S. Lustick, Fractured Fairy Tale: The War on Terror and the Emperor’s New Clothes, 16
MINN. J. INT’L L. 335, 338 (2007).
494. Jide Nzelibe & John Yoo, Rational War and Constitutional Design, 115 YALE L.J. 2512, 2522–
24, 2526, 2528 (2006).
495. Classified Information Procedures Act, 18 U.S.C. App. III (2006); see also Robert Bejesky,
National Security Information Flow: From Source to Reporter’s Privilege, 24 ST. THOMAS L. REV. (forthcoming
2012) (describing executive control over classification and restrictions on disclosure).
496. Robert Bejesky, Intelligence Information and Judicial Evidentiary Standards, 44 CREIGHTON L.
REV. 811, 875–82 (2011); see also Robert Bejesky, Cognitive Foreign Policy: Linking Al Qaeda and Iraq, 56
HOWARD L.J. (forthcoming 2012) (discussing the disclosure of false and misleading material); Robert
Bejesky, National Security Information Flow: From Source to Reporter’s Privilege, 24 ST. THOMAS L. REV.
(forthcoming 2012) (“[W]hen fewer people are able to access and asses underlying data, fewer people
can verify whether information is true. Yet pieces of restricted data may be declassified and impart
faulty portrayals.”).
497. Paul F. Diehl & Tom Ginsburg, Irrational War and Constitutional Design: A Reply to Professors
Nzelibe and Yoo, 27 MICH. J. INT’L L. 1239, 1247 (2006).
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Nixon,498 Nixon cited the secrecy milieu of the Constitutional Convention
as a basis for protecting executive secrecy.499 The Constitutional
Convention was secret because it was necessary to protect the process
during deliberations for the Articles of Confederation, which was a
germane precautionary measure against British spies who would
undermine the independence movement.500 The Framers were not using
a privilege to cover up the crimes of a president.
e. Conclusions on Framer Intent
As a mechanism for conceivably reducing ambiguity, the Framers
certainly could have delineated more detail in the text of the Constitution
on initiating war.501 However, when one examines congressional records,
Framer statements, corresponding policy intentions, and interpretations of
scholars, government officials, and court opinions, no one seemed to be
confused on the matter for 150 years. Creative interpretations of
precedent and history depict a systematic approach of mangling
descriptions of the Constitution’s original meaning beyond reasonable
contemporary approaches to construe Framer intent. Alternatively, the
Supreme Court uses originalism to interpret the Constitution and a
method referred to as “constitutional translation,” which endeavors to
incorporate a modern interpretation to maintain the document’s original
meaning.502 The President’s legal advisors may not always preserve a
balance with the original meaning alone.
3. Power of the Judiciary
The Supreme Court is the official interpreter of the Constitution, and it
frequently decides cases by assessing the Framers’ intent.503 Yoo wrote
498. United States v. Nixon, 418 U.S. 683 (1974).
499. Eric Lane, Frederick A.O. Schwarz, Jr. & Emily Berman, Too Big a Canon in the President’s
Arsenal: Another Look at United States v. Nixon, 17 GEO. MASON L. REV. 737, 758 (2010).
500. Id.
501. See Robert Gray Bracknell, Real Facts, “Magic Language,” The Gulf of Tonkin Resolution, and
Constitutional Authority to Commit Forces to War, 13 NEW ENG. J. INT’L & COMP. L. 167, 213 (2007)
(arguing the Framers might have employed “less ambiguous text” and used language, such as
“Congress shall have the whole war making power, and shall have the exclusive power to authorize
the use of the armed forces in any armed conflict, the President shall execute the war making policy
set by the Congress and shall exercise command of the armed forces only” and “shall have no
authority regarding the decision on whether to wage war or otherwise deploy the armed forces or
engage them in combat”).
502. Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE
L.J. 672, 673, 701 (1972).
503. Marbury v. Madison, 5 U.S. 137, 147–48, 177–78 (1803).
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that federal courts “were to have no role at all” in war powers cases.504
He noted “[n]o [constitutional] provision explicitly authorizes the federal
courts to intervene directly in war powers questions.”505
The
Constitution states the Supreme Court’s jurisdiction extends to all cases or
controversies arising out of the Constitution, which means its jurisdiction
covers every clause in the Constitution.506 Alexander Hamilton spoke of
the role of the Judiciary as the check for “declar[ing] all acts contrary to
the manifest tenor of the Constitution void.”507 War power authorities
are located in the text of the Constitution and United States courts may
adjudicate foreign affairs and war powers issues without interfering with
the President’s powers.508
Some cases involving the allocation of war power between Congress
and the President, many of which decidedly affirmed Congress’s superior
authority over the use of military force, include Talbot,509 Bas,510 Charming
Betsy,511 Little,512 Smith,513 Brown,514 Fleming,515 Miller,516 Ex parte
Milligan,517 Swaim,518 Sweeney,519 and Youngstown.520 Yoo cited Bas, Talbot,
and Little and wrote: “To be sure, these decisions contain dicta that could
504. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War
Powers, 84 CAL. L. REV. 167, 170 (1996); see also JOHN YOO, THE POWERS OF WAR AND PEACE: THE
CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11, at 144–45 (2005) (making similar claims about
federal courts having little role in international law interpretation); David J. Bederman, Recent Books on
International Law: Book Reviews, 100 AM. J. INT’L L. 490, 495 (2006) (reviewing JOHN YOO, THE
POWERS OF WAR AND PEACE: THE CONSTITUTION AND FOREIGN AFFAIRS AFTER 9/11 (2005))
(critiquing Yoo’s argument).
505. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War
Powers, 84 CAL. L. REV. 167, 176 (1996).
506. U.S. CONST. art. III, § 2, cl. 1 (providing that “judicial Power shall extend to all Cases . . .
arising under . . . Treaties made, or which shall be made . . .”).
507. THE FEDERALIST NO. 78 (Alexander Hamilton).
508. See Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (explaining “courts can take appropriate
account of such matters without abdicating their legal responsibility to review the lawfulness” of
presidential action).
509. Talbot v. Seeman, 5 U.S. 1, 28 (1801).
510. Bas v. Tingy, 4 U.S. 37, 43 (1800) (Chase, J.).
511. Murray v. Schooner Charming Betsy, 6 U.S. 64, 77 (1804).
512. Little v. Barreme, 6 U.S. 170, 177–78 (1804).
513. United States v. Smith, 27 F. Cas. 1192, 1230 (C.C.N.Y. 1806) (No. 16,342).
514. Brown v. United States, 12 U.S. 110, 128–29 (1814).
515. Fleming v. Page, 50 U.S. 603, 614–15 (1850).
516. Miller v. United States, 78 U.S. 268, 268 (1870).
517. Ex parte Milligan, 71 U.S. 2, 139 (1866).
518. Swaim v. United States, 165 U.S. 553, 221 (1897).
519. United States v. Sweeny, 157 U.S. 281, 284 (1895).
520. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).
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support arguments for exclusive congressional power over war.”521
There would probably be more cases, but, as Professors Barron and
Lederman emphasize, Presidents have understood and respected
congressional authority and did not transgress legislative restrictions on the
use of force.522 Likewise, after a President takes a questionable unilateral
action, will the case become moot, capable of repetition yet evading
review, or otherwise not be remediable? The precipice for separation of
powers is that an aggregation of unresolved and controversial presidential
conduct may appear as if the Executive is usurping legislative power523
and effectively appraising and justifying its own authority.524 Troubles
compound on current initiatives with the President’s capability to use
informational dominance to enfeeble legislative checks, which was a
pivotal concern with the information-sharing provisions in the War
Powers Resolution.525
A similar problem with the potential to aggrandize presidential authority
occurs if legal advisors diminish the value of international law by
suggesting the President has a right to violate it. In a surreptitious manner,
this contention can negate domestic critics and distract attention by
emphasizing national pride and implying that the President is championing
the interests of the domestic citizenry when violating international law.
However, the text of the Constitution binds the President to adhere to
international law,526 and the domestic citizenry may prefer compliance
521. Louis Fisher, Lost Constitutional Moorings: Recovering the War Power, 81 IND. L.J. 1199, 1237–
38 (2006) (citing John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of
War Powers, 84 CAL. L. REV. 167, 294 n.584 (1996)).
522. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 948, 952 (2008).
523. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism,
118 HARV. L. REV. 2047, 2051 (2005).
524. John O. McGinnis, Constitutional Review by the Executive in Foreign Affairs and War Powers: A
Consequence of Rational Choice in the Separation of Powers, 56 LAW & CONTEMP. PROBS. 293, 293 (1993).
525. 50 U.S.C. §§ 1541–1548 (2006 & Supp. 2009).
526. The Framers respected international law. John Jay wrote: “It is of high importance to the
peace of America that she observe the laws of nations . . . .” THE FEDERALIST NO. 3 (John Jay).
The Supreme Court in Murray v. Schooner Charming Betsy held that “an act of Congress ought never to
be construed to violate the law of nations if any other possible construction remains.” Murray v.
Schooner Charming Betsy, 6 U.S. 64, 118 (1804); see also Jordan J. Paust, Executive Plans and
Authorizations to Violate International Law Concerning Treatment and Interrogation of Detainees, 43 COLUM. J.
TRANSNAT’L L. 811, 857 (2005) (explaining the “‘laws of the United States’ did not include the law of
nations, but [stating that] this is completely erroneous”); id. at 857–58 (“Yoo and Delahunty engaged
in complete fabrication when pretending that cases like The Schooner Exchange v. McFaddon or Brown v.
United States had anything to do with a claim that the President can violate customary international
law.”).
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and ultimately oppose a breach on the particular action.527 The Marshall
Court provided appropriate precedent when it affirmed three principles: 1)
the President must adhere to congressional boundaries when acting, 2) the
President is bound to adhere to international law as long as is feasible, and
3) Congress’s grant of authority does not give difference to the President’s
interpretation.528
War powers and international law controversies were annexed in the
detention and interrogation methods that garnered much attention during
the Bush Administration. Yoo and other appointed attorneys advised that
an unreviewable Commander in Chief authority was the basis of detention
and interrogation orders that purportedly violated human rights
agreements and the Geneva Conventions.529 The Court not only decided
war power cases such as Hamdi,530 Rasul v. Bush,531 Hamdan v. Rumsfeld,532
and Boumediene v. Bush,533 but also contradicted the reproachable
substantive advice on detention and interrogation from Bush
Administration attorneys.534 In Hamdan, the Court held that the Judiciary
has the final authority to interpret treaties relating to the conduct of war,
which indicates the Court holds authority to curtail the President’s use of
discretion as Commander in Chief as it relates to treaty interpretation.535
The decision was unsurprising because the authority is spelled out in the
Constitution: “The judicial Power of the United States . . . extend[s] to . . .
527. Robert Bejesky, Politico-International Law, 57 LOY. L. REV. 29, 29–31 (2011).
528. Neil Kinkopf, The Statutory Commander in Chief, 81 IND. L.J. 1169, 1190 (2006).
529. For example, the government detained Hamdi for nearly three years without formally
being charged, was abused, and was denied due process as he was labeled an “enemy combatant.”
Nagwa Ibrahim, The Origins of Muslim Racialization in U.S. Law, 7 UCLA J. ISLAMIC & NEAR E.L. 121,
121 (2008/09).
530. Hamdi v. Rumsfeld, 542 U.S. 507, 507 (2004).
531. See Rasul v. Bush, 542 U.S. 466, 478–80 (2004) (holding that non-citizen enemy
combatants held outside United States jurisdiction had the right to attain habeas corpus relief over
their detention).
532. Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 173 (D.C. Cir. 2004) (ordering a suspension of
military commission proceedings at Guantanamo Bay).
533. Boumediene v. Bush, 553 U.S. 723, 732 (2008) (holding portions of the Military
Commissions Act of 2006 unconstitutional because it suspended the writ of habeas corpus for
Guantanamo prisoners).
534. Likewise, Ronald Dworking wrote after the Boumediene decision: “The Supreme Court has
now declared that this shameful episode in our history must end.” Ronald Dworkin, Why It Was a
Great Victory, N.Y. REV. BOOKS (Aug. 14, 2008), available at http://www.nybooks.com/
articles/archives/2008/aug/14/why-it-was-a-great-victory/?pagination=false.
535. Anthony Clark Arend, Who’s Afraid of the Geneva Conventions? Treaty Interpretation in the Wake
of Hamdan v. Rumsfeld, 22 AM. U. INT’L L. REV. 709, 730 (2007).
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Treaties.”536 The Restatement (Third) of the Foreign Relations Law of
the United States also affirmed that “[c]ourts in the United States have
final authority to interpret an international agreement[,] . . . but will give
great weight to an interpretation made by the Executive Branch.”537
However, in the minority opinion of Hamdan, Justices Scalia, Alito, and
Thomas effectively affirmed one of Yoo’s propositions. The opinion
reasoned that the President’s determination of state of war after 9/11, in
combination with Congress’s AUMF, meant the Court would be
interfering in military proceedings and “bring[ing] the Judicial Branch into
direct conflict with the Executive in an area where the Executive’s
competence is maximal and ours is virtually nonexistent.”538 The
President cannot declare war; the 2001 AUMF was limited to using
“necessary and proper” authority to respond to abettors of 9/11.539 If
the President chooses to use the phrases “war on terror” and “we’re at
war” for over seven years in speeches, it does not necessarily mean that
what he is saying is true.540 In fact, substantial literature developed over
whether fighting terrorism should instead be regarded as a response to
criminal acts.541
4. The Debate Surrounding Signing Statements
In an interesting analysis that exemplifies the division between clearly
defined constitutional separation of powers authority and gray areas,
Professors Gersen and Posner wrote:
536. U.S. CONST. art. III, §§ 1–2; see also Anthony Clark Arend, Who’s Afraid of the Geneva
Conventions? Treaty Interpretation in the Wake of Hamdan v. Rumsfeld, 22 AM. U. INT’L L. REV. 709, 739
(2007) (observing that “when it comes to interpreting treaties, the courts—not the President, not the
Congress—have the final word”).
537. RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES
§ 326(2) (1987).
538. Hamdan v. Rumsfeld, 548 U.S. 557, 677 (2006) (Scalia, J., dissenting).
539. See AUTHORIZATION FOR THE USE OF MILITARY FORCE, Pub. L. No. 107-40, 115 Stat.
224 (2001) (permitting the President “to use all necessary and appropriate force”).
540. M. Cherif Bassiouni, The Institutionalization of Torture Under the Bush Administration, 37 CASE
W. RES. J. INT’L L. 389, 406 (2006); see also Robert Bejesky, Cognitive Foreign Policy: Linking Al Qaeda
and Iraq, 56 HOW. L.J. (forthcoming 2012) (“[T]he inquiry into whether countering terrorism
constitutes a real war has invariably been mired in controversy. If there is no real ‘war,’ then it seems
imprudent to expansively construe the [Commander in Chief] authority.”). Nonetheless, members of
the United States District Court held the presence of United States soldiers in Afghanistan and their
actions to detain al-Qaeda members were evidence of an undeclared war. Padilla v. Bush, 352 F.3d
695, 713 (2d Cir. 2003), rev’d, 542 U.S. 426 (2004).
541. See Phillipe Sands, Poodles and Bulldogs: The United States, Britain, and the International Rule of
Law, 84 IND. L.J. 1357, 1357 (2009) (explaining that terrorism is sometimes considered a crime); see
also Robert Bejesky, Cognitive Foreign Policy: Linking Al Qaeda and Iraq, 56 HOW. L.J. (forthcoming fall
2012) (discussing debates on the issue).
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In constitutional law, a deluge of recent scholarship argues that the ‘small c’
constitution of unwritten legal norms deserves as much attention as the ‘big
C’ written Constitution . . . . Or consider the recent controversy about
presidential signing statements. When Congress presents a bill to the
President for signature, the President sometimes issues a signing statement
that interprets some of the bill’s provisions. Signing statements are not
binding law, but many people believe that they do, or should, influence
courts and agencies when these bodies interpret statutes.542
Presidents that the public typically regards as conservatives use signing
statements more frequently543 and such statements are a hot war powers
topic.544 Noting how signing statements were used by the Bush
Administration to avert congressional will, Professor Koh emphasized that
the “constitutional debate over presidential signing statements has raged
precisely because the President has claimed an unenumerated Article II
power to interpret a statutory scheme faithfully not to Congress’s intent,
542. Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 STAN. L.
REV. 573, 574–75 (2008).
543. Ronald Reagan escalated the use of signing statements, and George W. Bush aroused
attention because of his steep increase in the number of signing statements in comparison to former
Presidents. Malinda Lee, Comment, Reorienting the Debate on Presidential Signing Statements: The Need for
Transparency in the President’s Constitutional Objections, Reservations, and Assertions of Power, 55 UCLA L.
REV. 705, 705, 710–12, 725 (2008) (noting that signing statements were issued from as early as the
Monroe Administration). One count found that Bush issued 157 signing statements that questioned
over 1,100 provisions in laws, including 363 objections to Congress allegedly interfering with the
“unitary executive” authorities and 170 objections against withholding information from Congress
pertaining to national security. Michele Estrin Gilman, Litigating Presidential Signing Statements, 16 WM.
& MARY BILL RTS. J. 131, 133, 135 (2007); Malinda Lee, Comment, Reorienting the Debate on Presidential
Signing Statements: The Need for Transparency in the President’s Constitutional Objections, Reservations, and
Assertions of Power, 55 UCLA L. REV. 705, 727 (2008).
544. One particularly controversial signing statement was the one accompanying the Detainee
Treatment Act of 2005, which would have passed with the two-thirds vote required to override a
veto, but Bush did not veto it; however, he issued a signing statement contending that the Act’s
prohibition on torture and cruel, or inhuman treatment was not binding on the Executive. Statement
on Signing the Department of Defense, Emergency Supplemental Appropriations to Address
Hurricanes in the Gulf of Mexico, and the Pandemic Influenza Act 2006, 41 WEEKLY COMP. PRES.
DOC. 1918 (Dec. 30, 2005); Charlie Savage, Bush Could Bypass New Torture Ban: Waiver Right Is Reserved,
BOSTON GLOBE (Jan. 4, 2006), http://www.boston.com/ news/nation/articles /2006 /01 /04
/bush_could_bypass_new_torture_ban/?page=full.
The signing statement referenced the
provision’s prohibition on torture and stated that “[t]he [E]xecutive [B]ranch shall construe Title X in
Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority
of the President to supervise the unitary [E]xecutive [B]ranch and as Commander in Chief and
consistent with the constitutional limitations on the judiciary power.” Statement on Signing the
Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the
Gulf of Mexico, and the Pandemic Influenza Act 2006, 41 WEEKLY COMP. PRES. DOC. 1918 (Dec.
30, 2005).
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but rather to his own reading of what that scheme’s goals might be.”545
The President can interpret the law with executive signing statements, but
the interpretations carry no legal effect and courts can choose to ignore
the interpretations.546
The Supreme Court rejected similar “novelties” in the past, and for
good reason.547 If Congress presents a bill that the President signs, but
issues a signing statement that contradicts legislative intent, the bill could
be vetoed and possibly passed without the President’s signature.548
Giving credence to a signing statement might permit the Executive to
push the meaning of a law away from the intent of the legislature. To the
extent that the President seeks to enforce only portions of legislation and
ignore others, this is an unconstitutional line item veto.549 If the
545. Harold Hongju Koh, Setting the World Right, 115 YALE L.J. 2350, 2370 (2006); see also Curtis
A. Bradley & Eric A. Posner, Presidential Signing Statements and Executive Power, 23 CONST. COMMENT.
307, 310 (2006) (pointing out that “[t]he attack on the institution of signing statements is puzzling”);
Michele Estrin Gilman, Litigating Presidential Signing Statements, 16 WM. & MARY BILL RTS. J. 131, 131
(2007) (“Presidential signing statements have been variously portrayed as much ado about nothing, a
cause for concern, and a constitutional crisis.”).
546. Michele Estrin Gilman, Litigating Presidential Signing Statements, 16 WM. & MARY BILL RTS.
J. 131, 133–35 (2007); Jordan J. Paust, Above the Law: Unlawful Executive Authorizations Regarding
Detainee Treatment, Secret Renditions, Domestic Spying, and Claims to Unchecked Executive Power, 2007 UTAH
L. REV. 345, 389 (2007) (“[E]xecutive views cannot be determinative of the content of the law.”). In
some ways, when executive agencies issue administrative rules, based on a congressional statute that
established the agency, it is a form of interpretation because the Executive Branch is not a lawmaking
branch in the Constitution and acts pursuant to the congressional statute that established the agency.
547. See Clinton v. New York, 524 U.S. 417, 445–49 (1998) (rejecting line item veto); INS v.
Chadha, 462 U.S. 919, 959 (1983) (rejecting legislative veto).
548. See U.S. CONST. art. 1, § 7, cl. 2 (“[E]very Bill which shall have passed the House of
Representatives and the Senate, shall, before it become a Law, be presented to the President of the
United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that
House in which it shall have originated, who shall enter the Objections at large on their Journal, and
proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass
the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise
be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such
Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the
Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If
any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have
been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the
Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.”).
549. See AM. BAR ASS’N, TASK FORCE ON PRESIDENTIAL SIGNING STATEMENT AND THE
SEPARATION OF POWERS DOCTRINE, RECOMMENDATION 304, at 22 (2006), available at
http://www.americanbar.org/content/dam/aba/migrated/leadership/2006/annual/dailyjournal/20
060823144113.authcheckdam.pdf (“To sign a bill and refuse to enforce some of its provisions
because of constitutional qualms is tantamount to exercising the line-item veto power held
unconstitutional by the Supreme Court in Clinton v. City of New York . . . .”); Harold Hongju Koh,
Setting the World Right, 115 YALE L.J. 2350, 2370 (2006) (drawing a parallel with Youngstown and
presenting the signing statement debate and noting that “the President’s action crossed the line from
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President fails to enforce the legislation properly, members of Congress
could challenge that failure if they show legislative standing; that is, if they
can show an injury550 and ripeness.551
Professors Gersen and Posner refer to signing statements as a sub topic
of broader concepts referred to as “soft law,” “soft statute,” and “‘small c’
constitution.”552 They consider “soft statutes” a congressional resolution
or statement of a policy preference.553 There clearly is a long-recognized
distinction among different congressional actions such as legislating,
adopting symbolic legislative acts, and espousing policies.554 Congress is
entitled to take these actions because it is the lawmaking branch of
government.555 Gersen and Posner wrote: “In fact, many congressional
resolutions are very serious: they assert controversial foreign policy
judgments, urge the President to intervene in humanitarian crises or to
avoid a military conflict, [and] criticize allies and enemies . . . .”556 They
note “the Iraq War Policy Resolution expresses the sense of Congress that
the United States should not deepen its military involvement in Iraq and
specifies goals for the ongoing mission.”557 In this case, “soft law”
sounds more like Congress tampering with the President’s authority, while
executive action into lawmaking and violated the separation of powers”); Rachel Ward Saltzman,
Note, Executive Power and the Office of Legal Counsel, 28 YALE L. & POL’Y REV. 439, 452–53 (2010)
(highlighting that in 1988, President Reagan’s Office of Legal Counsel wrote that he “did not have
line-item veto power”).
550. Raines v. Byrd, 521 U.S. 811, 830 (1997); see also Chenoweth v. Clinton, 181 F.3d 112, 117
(D.C. Cir. 1999) (providing an example of a court ducking the congressional challenge by stating that
the dispute was “fully susceptible to political resolution” by Congress enacting a new statute). The
reasoning is problematic because it permits the President to refuse to enforce the law when his or her
party has a majority in Congress or when Congress is unable to have the two-thirds required to
override a potential veto on new legislation. Standing is also an impediment. Warth v. Seldin, 422
U.S. 490, 499 (1975) (holding that there is no standing when the “asserted harm is a ‘generalized
grievance’”); United States v. Richardson, 418 U.S. 166, 177 (1974) (holding that “concrete injury”
was lacking in a taxpayer standing case).
551. Abbott Labs. v. Gardner, 387 U.S. 136, 148–49 (1967).
552. Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 STAN. L.
REV. 573, 573–74, 577–78 (2008).
553. See id. at 573, 577–78 (recognizing that a “soft statute has received little attention in
scholarly work”).
554. See BARBARA HINCKLEY, LESS THAN MEETS THE EYE: FOREIGN POLICY MAKING AND
THE MYTH OF THE ASSERTIVE CONGRESS 174 (1994) (arguing that congressional actions such as
“symbolic resolutions, increase in roll calls[,] and lengthy hearings” do little substantively, but merely
create an impression of action in foreign affairs).
555. See Jacob E. Gersen & Eric A. Posner, Soft Law: Lessons from Congressional Practice, 61 STAN.
L. REV. 573, 621 (2008) (acknowledging that “[s]ome may be troubled by the way that soft law also
plays havoc with the separation of powers”).
556. Id. at 578.
557. Id. at 581–82.
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other scholars would believe the opposite.558 Congress expended great
effort during 2007 and 2008 to withdraw troops from Iraq, and the
President retorted with patriotic rhetoric of supporting the troops and
vetoed Congress’s proposed legislation, calling it unconstitutional.559
V. CONCLUSION
The roles of war powers delegated to Congress and the Executive
within the text of the United States Constitution are quite clear when
Framer intent and historical records are considered. Congress authorizes
the use of force; the President is Commander in Chief of the United States
Military when using force within the confines of Congress’s
authorization.560 Congress has authorized the use of military force in all
but one major confrontation the United States has engaged in (the Korean
War), which includes declaring war five times and authorizing large-scale
military force four times.561 Presidents largely adhere to the War Powers
Resolution of 1973, which requires the President provide information to
Congress and affirms Congress’s right to authorize the use of force.562
The Constitution states Congress funds, legislates over, and otherwise
provides for the military and that the President is caretaker of the military
during peacetime.563 Once Congress authorizes the President to deploy
military force, Congress cannot interfere with the President’s execution of
orders; however, Congress has limited, conditioned, and parameterized the
use of force.564 Presidents respected those restrictions at Jackson’s lowest
558. The article by Gersen and Posner was published a year after Democrats recaptured
control of Congress, and they wrote, “Maybe Congress does not really mean that it disapproves of
the Iraq war, but is trying to obtain some short-term political advantage by pandering to temporary
passions. Perhaps the legislature is exploiting a transient public mood in the hope of pressuring the
President to yield in some other political dispute[] between the two branches.” Id. at 588.
559. H.R. 1591, 110th Cong. § 1904(c), (e) (2007); 153 CONG. REC. 11,016–17 (2007) (detailing
a veto message from the President); see also Robert Bejesky, Political Penumbras of Taxes and War Powers
for the 2012 Election, 14 LOY. J. PUB. INT. L. (forthcoming 2012) (discussing the events of 2007 and
2008 relating to the war in Iraq).
560. U.S. CONST. art. 11, § 2, cl. 1.
561. Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism,
118 HARV. L. REV. 2047, 2063 (2005); see also Robert Bejesky, Precedent Supporting the Constitutionality of
Section 5(b) of the War Powers Resolution, 49 WILLAMETTE L. REV. (forthcoming 2012) (discussing
Congress’s history of declaring wars).
562. Geoffrey Corn, Triggering Congressional War Powers Notification: A Proposal to Reconcile
Constitutional Practice with Operational Reality, 14 LEWIS & CLARK L. REV. 687, 688–89 (2010); see also
Robert Bejesky, Precedent Supporting the Constitutionality of Section 5(b) of the War Powers Resolution, 49
WILLAMETTE L. REV. (forthcoming 2012) (discussing presidential adherence to the War Powers
Resolution of 1793).
563. U.S. CONST. art. I, § 8; id. art. II, § 2.
564. Id. art. I, § 8; id. art. II; Sudha Setty, The President’s Question Time: Power, Information, and the
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ebb. Professors Barron and Lederman emphasized that there was no prior
“sustained practice of [Presidents] actually disregarding statutes” until the
last Bush Administration.565
Due to drastic global changes since the Framers adopted the United
States Constitution, it is possible for the Executive Branch and advocates
of Executive powers to be immoderately risk-averse and propel
presidential power. The President’s informational advantages with the
expansion of the administrative state and control over the national security
apparatus, the reinterpretation of the use of force in the post-UN world
and disparate levels of force, judicial hesitation to accept certiorari on use
of force questions after the Vietnam War, and the President’s advice from
legal counsel are the primary variables that lead to confrontation within the
zone of twilight.566 Other considerations that should abate risk aversion
since the Constitution’s adoption include: today’s elevated cooperation,
UN restrictions on the use of force, United States hegemony, NATO as a
global defense pact, and the role of the UN Security Council to prevent
the use of force.
Advocates should be respected for their creativity in sponsoring a
dominant executive position and so-called inherent presidential authority
in war powers premised on originalism.567 However, biased advisory
memos classified under national security that contain faulty premises
should not be regarded as legitimate opinions leading to precedent that
expands presidential powers. It is toilsome to conceive that the text of the
Constitution is so manipulable and that Supreme Court cases, legislation,
Executive Credibility Gap, 17 CORNELL J.L. & PUB. POL’Y 247, 254 (2008); see also Robert Bejesky,
Precedent Supporting the Constitutionality of Section 5(b) of the War Powers Resolution, 49 WILLAMETTE L.
REV. (forthcoming 2012) (describing the effect of the War Powers Resolution of 1973 on the
President’s use of force).
565. See David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb—A
Constitutional History, 121 HARV. L. REV. 941, 1095, 1099 (2008) (“[T]he [Bush] Administration has
gone beyond merely asserting the preclusive power in signing statements, veto messages, or
memoranda to Congress. It appears to have relied upon such claims to engage in outright defiance
of statutory restrictions in exercising coercive governmental authority.”).
566. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952); Harold Hongju Koh,
Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J.
1255, 1285–87 (1988); Trevor W. Morrison, Constitutional Alarmism, 124 HARV. L. REV. 1688, 1707
(2011); Jide Nzelibe, A Positive Theory of the War-Powers Constitution, 91 IOWA L. REV. 993, 1024–25
(2006).
567. Similarly, Yoo references the Treason Clause to buttress his Declare War Clause
arguments by noting “that if declaring war meant starting hostilities, then the Constitution should
have ‘defined treason to occur when a citizen declares war against the United States.’” Stuart
Streichler, Mad About Yoo, or, Why Worry About the Next Unconstitutional War?, 24 J.L. & POL. 93, 109
(2008).
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academics, and logic have been in discord about the scope of the
Executive’s war powers for nearly two centuries.
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