Academic journal article Texas Law Review

The Separation and Overlap of War and Military Powers

Academic journal article Texas Law Review

The Separation and Overlap of War and Military Powers

Article excerpt

Absent from war-powers scholarship is an account of when war and military powers separate and when they overlap. Making arguments sounding in text, structure, and history, this Article supplies such a theory. Numerous English statutes and practices help identify the meaning of the Constitution's war and military powers. Additional insights come from the Revolutionary War and the half-dozen or so wars fought in the three decades after 1789. In those early years, Congress micromanaged military and wartime operations. Presidents (and their advisors) acquiesced to these congressional assertions of power, expressing rather narrow understandings of presidential power over war and military matters. Using early history as a guide, this Article argues that the Constitution grants Congress complete control over all war and military matters. Some authorities, such as the powers to declare war and establish a system of military justice, rest exclusively with Congress. Military authorities not granted exclusively to Congress vest concurrently with the President and Congress, meaning that either can exercise such powers. In this area of overlap, where congressional statutes conflict with executive orders, the former always trumps the latter. Tempering Congress's ability to micromanage military operations are significant institutional and constitutional constraints that typically make it impossible for Congress to control military assets on a far-off battlefield. In sum, the Constitution creates a powerful Commander in Chief who may direct military operations in a host of ways but who nonetheless lacks any exclusive military powers and is thus subject to congressional direction in all war and military matters.

I. Introduction

War-powers scholarship, focusing as it does on the decision to go to war,1 has lavished attention on the Declare War2 and Commander in Chief Clauses.3 Perhaps an unstated assumption of these works is that making sense of these clauses yields the key to deciphering the Constitution's allocation of war and military powers. One extreme supposes that the Commander in Chief power grants the President vast and illimitable powers over the military, including the authority to start any number of wars.4 The other extreme supposes that the Declare War power firmly establishes the primacy of Congress over all war matters.5

This scholarly focus on the decision to go to war has distorted our perception of the Constitution's war and military powers. Most of the Constitution's other war and military powers remain relatively unexamined. Yet many of these powers may be just as important, if not more so, in understanding the separation of powers. Existing conceptions of the Declare War and Commander in Chief powers may well change based upon a more complete understanding of other constitutional clauses. Moreover, the fixation on these two powers may have led scholars to imagine that congressional and executive powers do not overlap. Many might have supposed that only Congress may decide whether the nation should wage war and that only the Commander in Chief may decide how to wage the war that Congress has declared. Yet consideration of other war and military powers may suggest different answers - answers that envision areas of overlap. Where certain powers are concerned, maybe the metaphor of complete separation is rather inapt.

The want of a comprehensive account of war and military powers has become somewhat embarrassing, as recent events have brought to the fore seemingly basic separation-of-war-powers questions. Some insist that Congress can regulate the treatment of prisoners,6 and others maintain that this matter is left wholly to the Commander in Chiefs discretion.7 Some claim that Congress can order a military withdrawal from Iraq, while others argue that Congress cannot.8 Other examples are not wanting.9

Making arguments sounding in text, structure, and history, this Article provides a theory of the separation and overlap of war and military powers. …

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