Academic journal article Boston University Law Review

Zeisberg's Relational Conception of War Authority: Convergence and Divergence in Achieving a New Understanding of War Powers

Academic journal article Boston University Law Review

Zeisberg's Relational Conception of War Authority: Convergence and Divergence in Achieving a New Understanding of War Powers

Article excerpt

INTRODUCTION

When I first received the manuscript of Mariah Zeisberg's prize-winning book on war powers, I was delighted because I recognized in her work a kindred effort to break the mold of the standard war powers debate.1 In this article, I will first describe the convergences between our approaches to war powers by examining the most prominent differences between our theories and the standard debate. As a bonus, I include a critique of the standard Hamiltonian version of the defensive war theory, which is discussed in Zeisberg's book. I then discuss some divergences between our approaches, especially the use of presidential war powers after 1945, the subject of my book Long Wars and the Constitution.2 These divergences, however, should not be understood as detracting from my genuine admiration and respect for Zeisberg's work. In particular, I have no doubt that future scholarship should and will be influenced by her sophisticated "relational" conception of war authority. (Zeisberg p. 18).

I. CONVERGENCES

A. The Need for a New Direction in the War Powers Debate

At a high level of generality, the war powers debate is concerned with the constitutional conditions under which the United States can take military action. Because presidents have de facto "first mover" status in the contemporary constitutional order, (Griffin p. 17), the debate tends to focus on the nature and limits of presidential war powers. The Supreme Court has not been heavily involved in determining the meaning of the Constitution with respect to war powers. Therefore, neither Zeisberg nor I devote much attention to the contributions of the judicial branch.

Recently, President Obama announced yet another military intervention abroad. He initiated military action against ISIL (or ISIS), the Islamic State of Iraq and the Levant, beginning with air strikes in August 2014.3 Obama gave a speech to the nation on September 10, 2014, claiming he had authority under the Constitution to take these and other military measures against ISIL.4 The commentary on his actions provided an excellent illustration of the problems with the standard war powers debate.

At the beginning of his speech, President Obama introduced the topic of his constitutional authority this way: "As Commander in Chief, my highest priority is the security of the American people."5 Providing appropriate details, he then built what might be called a "security context" by which to understand his actions, saying, for example, "ISIL leaders have threatened America and our allies."6 In defending military strikes against ISIL in multiple countries, he referred to "a core principle of [his] Presidency: If you threaten America, you will find no safe haven."7 Obama then directly addressed the question of his legal authority:

My administration has also secured bipartisan support for this approach here at home. I have the authority to address the threat from ISIL, but I believe we are strongest as a nation when the President and Congress work together. So I welcome congressional support for this effort in order to show the world that Americans are united in confronting this danger.8

Expert commentary focused on the Obama administration's specific invocations of authority from the 2001 Authorization to Use Military Force ("AUMF")9 and the 2002 Iraq War Resolution.10 Many commentators doubted these claims and stated that if the two AUMFs were infirm, the sole basis of authority was the 1973 War Powers Resolution ("WPR").11 For example, Yale Law School Professor Bruce Ackerman, an eminent authority on American constitutionalism, argued that the administration was risking a "constitutional crisis" by failing to observe the provisions of the Resolution.12 Given that there was little prospect of congressional action on a new AUMF before the November elections, legal scholars turned their attention to the possible "precedential" effect of a congressional failure to act. …

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