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Constitutional Law: War Powers

The Law Library of Congress is proud to present four constitutional law items focusing on War Powers.  The three articles and one statement to the Senate Committee on the Judiciary are available in their entirety in PDF.

Louis Fisher, "Thomas F. Eagleton: A Model of Integrity," 52 St. Louis U. L. J. 97 (2007).  This article describes the leadership of Senator Eagleton from 1971 to 1973 with the War Powers Resolution.  He backed a bill that tracked closely the intentions of the framers, permitting unilateral presidential action only in selected areas (e.g, repelling sudden attacks).  The House passed legislation placing no such restrictions but relying on presidential reporting.  The bill that emerged from conference committee so favored presidential power, in Eagleton's view, that he opposed it and spoke strongly for constitutional principles and legislative prerogatives.  Senator Eagleton "had taken an oath to support and defend the Constitution and that dedication provided all the lodestar he ever needed."

Louis Fisher, "Domestic Commander in Chief: Early Checks by Other Branches," 29 Cardozo L. Rev. 961 (2008).  This article looks to the early years of the republic to understand the scope, purpose, and boundaries of the Commander in Chief Clause.  The framers viewed the Clause within the context of republican government where ultimate power is placed not in a single executive but with the people and their elected representatives.  Covered within this article is the distinction between offensive and defensive wars, military actions against Indians, the militia act of 1792, the Neutrality Proclamation of 1793, the Whiskey Rebellion of 1794, the Alien and Sedition Acts of 1798, and judicial rulings from 1800 to 1806.

Statement by Louis Fisher, appearing before the Senate Committee on the Judiciary, "Exercising Congress's Constitutional Power to End a War," January 30, 2007.  This testimony explains the democratic principles that guided the framers, the rejection of monarchical power, the distinction between offensive and defensive wars, separation of purse and sword, the scope of the Commander in Chief Clause, the Constitution in practice, and contemporary statutory restrictions, including the cutoff of funds in 1973 to end the Vietnam War, prohibitions on CIA paramilitary activities in Angola, limitations imposed on assistance to the Contras in Nicaragua leading to the Iran-Contra scandal in 1987, authority for the Gulf War of 1991, and statutory requirements to withdraw U.S. troops from Somalia by March 31, 1994.

Louis Fisher, "Deciding on War Against Iraq: Institutional Failures," 118 Pol. Sci. Q. 389 (2003).  This article analyses the performance of U.S. political institutions in authorizing the war against Iraq in October 2002.  It concludes that the Bush administration failed to provide reliable information to Congress to justify the war and relied on tenuous, unsubstantiated claims that were regularly discredited.  The article also concludes that Congress failed in its institutional duties, both by voting on the Iraq Resolution without sufficient evidence and by drafting the legislation in such a way that it left the power to initiate war in the hands of the President, exactly what the framers had tried to prevent.

Source: Constitutional Law: War Powers

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