The Separation and Overlap of War and Military Powers

By Prakash, Saikrishna Bangalore | Texas Law Review, December 2008 | Go to article overview

The Separation and Overlap of War and Military Powers


Prakash, Saikrishna Bangalore, Texas Law Review


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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The Separation and Overlap of War and Military Powers
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    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.