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Two New Constitutional Law Articles on War Powers

The Law Library of Congress is proud to present two new constitutional law articles focusing on war powers. Both articles are available in their entirety in PDF on our U.S. Constitutional Law web page, which includes one book, seventeen articles, and three statements to Congress.

"Presidential Power in National Security: A Guide to the President-Elect," by Louis Fisher, included among papers prepared for the White House Transition Project, 2008. Over the last half century. Presidents have read their national security powers in sweeping terms, doing great damage to themselves, their parties, the nation, and regions around the world. The effective use of military force and foreign policy initiatives require the building of consensus, public understanding, and acting within the law. Too often, Presidents have claimed the unilateral power to commit the nation to war by making uninformed references to the Commander in Chief Clause. Heavy political and constitutional costs flow from the failure to adhere to the rule of law, checks and balances, and the system of separation of powers.

Louis Fisher, "Lost Constitutional Moorings: Recovering the War Power," 81 Ind. L. Rev. 1199 (2006). For the past half century. Presidents have claimed constitutional authority to take the country from a state of peace to a state of war against another nation. That was precisely the power that the Framers denied to the President and vested exclusively in Congress. That allocation of power was understood by all three branches until President Harry Truman went to war against North Korea in 1950. He never came to Congress for authority before he acted or any time thereafter. The persistence of unilateral presidential wars does severe damage to the U.S. constitutional system, separation of powers, checks and balances, and the principle of self-government.

Source: Two New Constitutional Law Articles on War Powers

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