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

9 Emergency War Powers

John Norton Moore

At the conclusion of the Constitutional Convention, Benjamin Franklin was asked, "What have you wrought?" He answered, "[A] Republic, if you can keep it."1

The President of the United States has broad authority to employ military force in emergency settings engendered by attacks against the United States or its interests, allies, forces, or citizens, at home or abroad. In developing this broadly supported proposition, though not in all its elements a unanimously supported proposition, this chapter will briefly examine the debate about the general scope of the war powers, the relevant issues in constitutional interpretation, the goals at stake in constitutional decision about the war powers, and the war powers in settings of emergency and immediate engagement. Most importantly, this chapter will develop an argument that we need to incorporate "new thinking" about war avoidance into policy considerations in the war powers debate: "new thinking" suggesting that major wars in the twentieth century have resulted in substantial part from a synergy between aggression by totalitarian, or at least nondemocratic, nations and settings of system-wide failure to deter such aggression. If this paradigm is correct, then it may suggest, as one way of enhancing deterrence, greater presidential authority in initial commitment decisions, always subject to congressional checks through the power of the purse and the ability to legislatively (through the normal law-making process) prohibit or terminate specific major foreign wars.


BACKGROUND: THE DEBATE ABOUT THE GENERAL SCOPE OF THE WAR POWERS

Throughout American constitutional history, the proper allocation of authority between Congress and the executive in the use of the armed forces has been surrounded by controversy. This controversy has been invited by a skeletal consti-

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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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