Academic journal article Harvard Law Review

Recapturing the War Power

Academic journal article Harvard Law Review

Recapturing the War Power

Article excerpt

The United States's ever-growing military participation in world affairs and the unconventional challenges of the War on Terrorism have sparked debate over the roles of Congress and the President in the initiation of military hostilities, the deployment of the armed forces abroad, and matters of national security. As the United States adapts its national defense to the security challenges of the future, it must not forget the original structural constraints and responsibilities established by the Constitution--not simply because it is the contract that binds us as a nation, but also because of the intelligence and continuing relevance of the structures of power that it created. Massive advances in military technology, as well as the United States's position as the world's sole superpower (a stark departure from the founding era), can make historical arguments related to the war power seem antiquated. Can one still argue for an originalist perspective without advocating a return to muskets and cavalry? An examination of the text and history of the war power can inform responses to new challenges and potential reforms to the system of divided war power. A better understanding of philosophical, political, and practical considerations that led to the Constitution's allocation of powers will allow these considerations to shape the adaptation of structures of power.

The buildup of a massive standing army since the end of World War II has altered the original balance of war power between Congress and the President, leading to what some scholars have termed "abdication" of congressional responsibilities. (1) But what responsibility does the Constitution impose on Congress for overseeing the war power? This Note focuses on the differences between the Army and the Navy Clauses with respect to constitutional constraints on congressional appropriations and how these differences shape the separation of powers in the war context. It goes on to argue that these differences illustrate the broad structural tension between the executive and legislative roles in war and discusses strategies through which Congress can use these structural differences to rebalance its role in military affairs. Part I argues that Congress's spending power, not its power to declare war, forms the basis for its primary and most effective war power. Part II explores the difference in congressional appropriations limits between the Army and the Navy as created by the Constitution. Part III examines how this difference affects presidential autonomy with respect to the Army and the Navy and argues that this difference informs the intended character of presidential authority in foreign policy. Part IV presents a series of proposals rooted in considerations of original structure that are geared toward Congress reeffectuating its exercise of the war power.

I. MILITARY APPROPRIATIONS AS CONGRESS'S PRIMARY WAR POWER

Although scholars continue to debate whether the Declare War Clause requires the President to obtain some form of statutory authorization before initiating offensive military action, (2) they generally agree that Congress retains an important warmaking tool in the form of the appropriations power. (3) Congress is the sole source of funding for the Army and the Navy, and it alone holds the power to call the Militia into federal service. (4) Thus, the Commander-in-Chief only has as many soldiers under his command as Congress decrees.

Professor Philip Bobbitt argues that the best understanding of the "war power" examines that power not as a unitary authority placed in either the executive or legislative branch, but rather as a sequence of decisions that are alternately allocated to Congress and to the President. Congress's military spending acts as the catalyst to the exercise of concurrent power: "[T]he pattern of required cooperation in war [is] sequential[;] ... one branch can act within certain boundaries, thereby having an impact on the choices open to the other branches but not determining the outcome of those choices. …

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