Waging War: The Clash between Presidents and Congress, 1776 to ISIS

By Binkley, John C. | Parameters, Summer 2017 | Go to article overview

Waging War: The Clash between Presidents and Congress, 1776 to ISIS


Binkley, John C., Parameters


Waging War: The Clash between Presidents and Congress, 1776 to ISIS

By David J. Barron

Reviewed by John C. Binkley, Professor of History and Government, University of Maryland University College

On April 6, 2017, President Donald Trump authorized a cruise missile attack on a Syrian airfield in response to the use of poison gas by Bashar al-Assad's regime. The administration based the legality of the missile attack upon the president's power as commander-in-chief. While many in Congress welcomed the attack, there was considerable concern over the lack of congressional approval for the action. As any student of American civics understands, the Constitution contains numerous points of contention as institutional checks and balances come into play. While the Constitution clearly gives Congress the authority to declare war, its management of military operations sets the power of Congress against the authority of the president as the commander-in-chief. Two fundamental questions are raised regarding actions such as Trump's: can Congress interfere in the military's operational decisions once war has been declared, and to what extent can the president order the military into harm's way absent a declaration of war? These are the questions David Barron attempts to answer in Waging War.

The answers to these questions tend to fall into two contradictory categories. For analysts who believe in the unitary executive, such as a John Yoo, a law professor at the University of California, Berkeley and author of Crisis and Command: A History of Executive Power from George Washington to George W. Bush (2009), the power of the executive as the commander-in-chief is effectively almost unlimited, checked only by the budgetary and impeachment authorities of Congress. Even in the absence of a congressional declaration of war, the commander-in-chief has unfettered authority to use military force to sustain America's interests. Once Congress has declared war, it abdicates operational authority to the president.

Barron, a federal judge on the US Court of Appeals for the First Circuit, rejects the unitary executive vision of almost unchecked presidential power. Instead, he argues presidents have been very cognizant of the constitutional prerogatives of Congress and have tried to gain congressional acquiescence to presidential actions. According to Barron, this deference to the legislative branch originated during the American Revolutionary War when George Washington followed the lead of the Continental Congress on a number of issues. This deference, however, was based on the explicit grant of authority given Congress in the Articles of Confederation to direct military operations. Barron goes on to argue that even with the creation of the executive branch at the constitutional convention in 1787, the founders still believed implicitly that congressional power was to be dominant. While his analysis of the founders' intentions is well written, interesting, and argued effectively, his conclusions are less sure-footed. For example, Barron does not discuss the important debate over whether to substitute the more operational term "make war" instead of the legislative authority to "declare war. …

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