The War Power
Paulsen, Michael Stokes, Harvard Journal of Law & Public Policy
My nearly ridiculous goal for this Essay is to present a comprehensive theory of the Constitution's allocation of war powers and, then, to apply it to every significant issue of the war on terror, in twenty-five pages.
My thesis is straightforward: The allocation of war powers under the Constitution is a classic illustration of the Framers' conception of separation of powers. The Framers regarded the war power as too important to vest it in a single set of hands and so, by conscious design, chopped it up--divided it--and allocated portions of that power to various branches, giving some powers exclusively to each branch and also providing for some areas of overlap, and thus shared authority, among them.
I will make three broad points about the war power as it exists within the Constitution's structural separation of powers. First, the Constitution vests, in the main, in Congress, and not in the President, the decision to initiate war--the authority to take the nation into a state of war. (1) Second, the Constitution vests in the President, and not in Congress, the power to conduct war. (2) Each of these powers is, in the main, autonomous of the powers of the other branch and thus to a substantial degree immune from control by the other's powers.
Third, the Constitution vests no substantive war powers in the judiciary. But questions of the Constitution's allocation of war powers nonetheless can be judicial questions. This susceptibility to judicial decision making does not mean that everything that the courts will decide on such matters is right. Nor does it mean even that everything that the courts say should be followed by the other branches of government. Another aspect of the separation of powers is that the Framers regarded the power to interpret law--the power of constitutional interpretation--as another power too important to vest exclusively in any one branch of government. (3) It too--like the war power--is a divided, shared power. The political branches thus rightfully may use the constitutional powers at their disposal to resist judicial encroachments on the Constitution's assignments of war powers to them. Nonetheless, the judiciary's power to decide cases, including cases concerning the Constitution's allocation of war powers, and to seek to press its interpretations upon the other branches with the limited powers at its disposal, is also part of the separation of powers dynamic.
I. THE CONSTITUTIONAL POWER TO INITIATE WAR (JUS AD BELLUM)
Consider first the constitutional power to start war--to take the nation from a condition of peace into a state of war. That power is Congress's, not the President's. In the American constitutional order, the power to initiate war is a legislative power and not an executive power.
A. Preconstitutional Background Understandings of the War Power
Things were not always that way. Indeed, the war power traditionally was understood to be an aspect of the executive power with respect to foreign affairs. The Framers of the U.S. Constitution wrote against a background understanding that the war power was part of the foreign relations executive power of the king--a description attested to by the best legal authorities known in the eighteenth century, including Montesquieu, Blackstone, and Locke. The Framers wrote against that backdrop, but consciously departed from that familiar design by taking some of the powers traditionally vested in the English king and assigning them instead to the legislature. The most important of those re-allocations in the area of war and foreign affairs is Article I, Section 8's assignment to Congress of the power "[t]o declare War." (4)
B. The Constitution's Allocation of the War-Initiating Power: Text, Structure, and History
Congress, and not the President, thus possesses the constitutional power to declare war or not to declare war. This means that Congress, and not the President, has the constitutional power to initiate war. …