The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives

By Gary M. Stern; Morton H. Halperin | Go to book overview

together to discuss, formulate, and enact an appropriate authorizing resolution prior to the actual engagement of such forces. Congress should also preauthorize a limited number of forces for the President to use unilaterally in accordance with U.N. Security Council authorization. Our proposal attempts to bypass the neverending legal standoff over which branch has what power, in order to establish effective working guidelines for war power decision making in the post-Cold War world.


NOTES
1.
Quoted in S. Rep. No. 755, 94th Cong., 2d Sess., Book I, at 9 ( Apr. 26, 1976) (Church Committee Report). See also Chapter 5.
2.
War Powers Resolution, 50 U.S.C. §§ 1541-48; Intelligence Oversight Act, 50 U.S.C. §§ 413-15 (amended in 1991); Arms Export Control Act, 22 U.S.C. § 2795.
3.
Pub. L. No. 102-1, 105 Stat. 3, Authorization for Use of Military Force Against Iraq Resolution ( 1991).
4.
Cong. Rec. H405 (daily ed. Jan. 12, 1991), Vol. 137, No. 8.
5.
Thomas Franck & Faiza Patel, UN Police Action in Lieu of War: "The Old Order Changeth', 85 Am. J. Int'l L. 63 ( 1991).
6.
Michael J. Glennon, The Constitution and Chapter VII of the United Nations Charter, 85 Am. J. Int'l L. 74 ( 1991).
7.
See, e.g., Conyers v. Reagan, 765 F.2d 1124 (D.C. Cir. 1985) ( U.S. invasion of Grenada); Crockett v. Reagan, 558 F. Supp. 893 (D.D.C.), aff'd per curiam, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 ( 1984) ( U.S. military aid to El Salvador); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (naval escorts of Kuwaiti ships in the Persian Gulf).
8.
752 F. Supp. 1141 (D.D.C. 1990).
9.
This paper has been published in 67 N.Y.U. L. Rev. 1402 ( 1992).
10.
See Ronald H. Coase, The Problem of Social Cost, 3 J. Law. & Econ. 1 ( 1960); see also J. Gregory Sidak, To Declare War, 41 Duke L. J. 27 ( 1991) and The Inverse Coase Theorem and Declarations of War, 41 Duke L. J. 325 ( 1991); but see Harold H. Koh, The Coase Theorem and the War Clause: A Response, 41 Duke L. J. 122 ( 1991).
11.
67 N.Y.U. L. Rev. At the conference, Sidak argued that the harshness of the Alien Enemy Act may encourage Congress not to declare war and therefore recommended that the statute be amended. Although such formalism may put the people on notice, it may not serve the interests of individual liberty. For example, Harold Koh responded that by not declaring war, there are actually more restrictions on the government and therefore greater protections of civil liberties; Koh also asserted that, contrary to Sidak's contention, governmental accountability is lower under a formal declaration.
12.
Chapter 1.
13.
In Chapter 6, Koh refers to "quasi-constitutional custom," defined as "informal accommodations between two or more branches on the question of who decides with regard to particular foreign affairs matters."
14.
Senator Joseph Biden and John Ritch outlined a legislative proposal that presages Raven-Hansen's views. See The War Power at a Constitutional Impasse. A 'Joint Decision' Solution, 77 Geo. L. J. 367 ( 1988).
15.
See Franck & Patel, supra note 5; but see Glennon, supra note 6.
16.
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-37 & n.2 ( 1951).
17.
299 U.S. 304 ( 1936).

-8-

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The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives
Table of contents

Table of contents

  • Recent Titles in Contributions in Military Studies ii
  • Title Page iii
  • Contents v
  • Acknowledgments vii
  • Introduction 1
  • Notes 8
  • 1: Historical Survey of the War Powers and the Use of Force 11
  • Notes 26
  • 2: Constitutional Constraints: The War Clause 29
  • Notes 46
  • 3: Statutory Constraints: The War Powers Resolution 55
  • 4: Treaty Constraints: The United Nations Charter and War Powers 83
  • Notes 98
  • 5: International Law Constraints 107
  • Notes 118
  • 6: Judicial Constraints: The Courts and War Powers 121
  • Notes 128
  • 7: Constraints on "Covert" Paramilitary Action 133
  • Notes 147
  • 8: "Covert" Paramilitary Action and War Powers 149
  • Notes 157
  • 9: Emergency War Powers 159
  • Notes 166
  • 10: Common Ground 167
  • Notes 176
  • Appendix 179
  • Selected Bibliography 181
  • Index 191
  • About the Editors and Contributors 197
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