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
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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).

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