Academic journal article Boston University Law Review

Accountability without Deliberation? Separation of Powers in Times of War

Academic journal article Boston University Law Review

Accountability without Deliberation? Separation of Powers in Times of War

Article excerpt

INTRODUCTION

Much prior scholarship on war powers has articulated something of a false dichotomy: either Congress possesses the exclusive power to initiate war, and therefore presidents who fail to respect this legislative prerogative act unconstitutionally; or presidents possess independent constitutional authority to initiate hostilities as they see fit, with or without congressional sanction and input. Mariah Zeisberg's War Powers and Stephen Griffin's Long Wars and the Constitution offer more nuanced frameworks for assessing the constitutional fidelity of both branches' exercise of war powers. The books share an emphasis on interbranch deliberation as a defining feature of the constitutional exercise of war authority; however, both paint a rather dour picture of interbranch deliberation in the post-1945 era. Rather than reliably engaging the executive in sustained debate, Congress has often, in President Obama's words, chosen to "sit on the sidelines" and "snipe" when such behavior is politically advantageous. I argue that, while normatively suboptimal, Congress' reactive stance is a product of the incentives facing individual members. When Congress does engage military policy debates, its contributions rarely meet the deliberative norms articulated by Griffin and Zeisberg. Nevertheless, I argue that even politically motivated congressional challenges to the President's conduct of military policy may nonetheless, in some political climates, achieve much of the democratic accountability that Griffin envisions as the ultimate end of interbranch deliberation. Congressional challenges impose tangible political costs on the President; in many cases, these costs are significant enough to encourage an administration to alter its preferred policy course. Finally, this Article explores how the strength of this congressional constraint and the measure of accountability it brings varies significantly from case to case and over time. While partisanship was the dominant factor driving interbranch conflict for much of the post-1945 era, growing ideological cleavages with respect to foreign policy within both parties may weaken the partisan dynamic to these interbranch wartime politics in the future.

I. BREAKING THROUGH A FALSE WAR POWERS DICHOTOMY

The terrorist attacks of September 11, 2001, did more than destroy two icons of American economic and military might and rattle the sense of inviolable security dear to most Americans in a post-Cold War world. It also sent shock waves that long reverberated through our separation of powers system. To meet the exigent threat, Congress delegated sweeping power to the President with the Authorization for Use of Military Force in September of 2001 ("AUMF"),1 a legal instrument still used by President Obama thirteen years later to justify a new war against the Islamic State of Iraq and the Levant ("ISIL") absent new congressional authorization for military action.2

Moreover, when the AUMF and subsequent legislation has not granted sufficient authority, post-9/11 presidents have claimed they possess the requisite power to act independently under Article II of the Constitution.3 For example, while the AUMF is often described as a blank check, it is important to remember that Congress actually amended the Bush administration's proposed draft, circumscribing the scope of the authorization by striking language that would empower the President not only to "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, harbored, committed, or aided in the planning or commission of the attacks against the United States that occurred on September 11, 2001,"4 but also "to deter and pre-empt any future acts of terrorism or aggression against the United States."5 Undeterred by such congressional efforts to limit presidential war powers, President Bush turned to John Yoo at the Office of Legal Counsel for a broader assessment of the Presidency's inherent powers to address the national emergency. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.