The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives

By Gary M. Stern; Morton H. Halperin | Go to book overview

Congress and receiving its affirmative authorization, he put all parties on notice that other suits would soon follow. Had President Bush proceeded to wage war without congressional authorization, he undoubtedly would have faced scores of servicemen suits citing that proposition, claiming (unquestionably ripe) rights not to fight and die in an unconstitutional, unauthorized war.48

I cannot but think that this unsavory prospect helped persuade the President to request, and Congress to grant, an eleventh-hour joint resolution authorizing the war. By promoting that resolution, Dellums established a piece of "quasi-constitutional custom" around which future institutional expectations will likely coalesce.49 All three branches effectively acknowledged Congress's constitutional right to approve the war.50 After Iraq, we will not likely hear our President again claim such a broad inherent constitutional authority to commit U.S. forces to such a large-scale, premeditated, potentially sustained war.51

Thus, Dellums demonstrates that judicial participation in war powers cases, judiciously undertaken, need not be self-perpetuating. To the extent that such participation--particularly when required by statute--forces interbranch dialogue and spurs creation of legally binding or customary norms around which future institutional expectations can converge, the judicial role in war powers cases can remain limited, sporadic, umpireal, and appropriately tailored to the judiciary's institutional expertise.


NOTES
1.
This chapter grows out of and builds upon Harold H. Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair ( 1990) [hereafter "The National Security Constitution"].
2.
J. Gregory Sidak, "To Declare War," 41 Duke L.J.27, 113 ( 1991).
3.
See generally The National Security Constitution, supra note 1; John Hart Ely, "Suppose Congress Wanted a War Powers Act that Worked", 88 Colum. L. Rev. 1379 ( 1988); and Harold H. Koh, "The Coase Theorem and the War Power: A Response", 41 Duke L.J. 122 ( 1991).
4.
752 F. Supp. 1141 (D.D.C. 1990).
5.
Id. at 1149.
6.
Although Judge Greene held the claims unripe, he did not dismiss the suit, suggesting that his real concern was not about ripeness, but that the equitable prerequisites for injunctive relief had not yet been met.
7.
See, e.g., Bas v. Tingy, 4 U.S. (4 Dall.) 37 ( 1800) (upholding John Adams' undeclared war with France based on declarations that Congress had intended to authorize limited hostilities by means other than formally declared war, not on findings of plenary presidential power); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 ( 1801) (finding that Congress had authorized an American commander's capture of neutral ship, reasoning that "[t]he whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry"); Little v. Barreme, 6 U.S. (2 Cranch) 170 ( 1804) (naval officer who had executed presidential order during undeclared war was nevertheless liable to those he had injured in violation of a duly enacted statute); Brown v. United States, 12 U.S. (8 Cranch) 110 ( 1814) (invalidating executive seizure of British property shortly before Congress declared the War of 1812,

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The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives
Table of contents

Table of contents

  • Recent Titles in Contributions in Military Studies ii
  • Title Page iii
  • Contents v
  • Acknowledgments vii
  • Introduction 1
  • Notes 8
  • 1: Historical Survey of the War Powers and the Use of Force 11
  • Notes 26
  • 2: Constitutional Constraints: The War Clause 29
  • Notes 46
  • 3: Statutory Constraints: The War Powers Resolution 55
  • 4: Treaty Constraints: The United Nations Charter and War Powers 83
  • Notes 98
  • 5: International Law Constraints 107
  • Notes 118
  • 6: Judicial Constraints: The Courts and War Powers 121
  • Notes 128
  • 7: Constraints on "Covert" Paramilitary Action 133
  • Notes 147
  • 8: "Covert" Paramilitary Action and War Powers 149
  • Notes 157
  • 9: Emergency War Powers 159
  • Notes 166
  • 10: Common Ground 167
  • Notes 176
  • Appendix 179
  • Selected Bibliography 181
  • Index 191
  • About the Editors and Contributors 197
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