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PRESIDENTIAL WAR POWER
Third Edition, Revised
Louis Fisher
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University Press of Kansas
© 1995, 2004, 2013 by the University Press of Kansas
All rights reserved
Published by the University Press of Kansas (Lawrence, Kansas 66045), which was
organized by the Kansas Board of Regents and is operated and funded by Emporia State
University, Fort Hays State University, Kansas State University, Pittsburg State University,
the University of Kansas, and Wichita State University
Library of Congress Cataloging-in-Publication Data
Fisher, Louis.
Presidential war power / Louis Fisher. – Third edition, revised
pages cm
Includes bibliographical references and index.
ISBN 978-0-7006-1930-6 (cloth : alk. paper)
ISBN 978-0-7006-1931 -3 (pbk.: alk. paper)
1. War and emergency powers-United States. 2. National security-Law and legislationUnited States. 3. United States-Foreign relations-Law and legislation. I. Title.
KF5060.F57 2013
342.73’062–dc23
2013020175
British Library Cataloguing-in-Publication Data is available.
Printed in the United States of America
10 9 8 7 6 5 4 3 2 1
The paper used in this publication is recycled and contains 30 percent postconsumer waste.
It is acid free and meets the minimum requirements of the American National Standard for
Permanence of Paper for Printed Library Materials 239.48-1992.
12
RESTORING CHECKS AND BALANCES
The drift of the war power from Congress to the President after World War II
is unmistakable. The framers’ design, deliberately placing in Congress the decision to expend the nation’s blood and treasure, has been radically transformed.
Presidents now regularly claim that the commander-in-chief clause empowers
them to send American troops anywhere in the world, including into hostilities,
without first seeking legislative approval. Congress has made repeated efforts
since the 1970s to restore legislative prerogatives, with little success. Presidents
continue to wield military power single-handedly, agreeing only to consult with
legislators and notify them of completed actions. That is not the framers’ model.
Many justifications are advanced to defend this fundamental shift in constitutional power. Champions of executive power cite the need for secrecy and
prompt action, qualities supposedly associated in some unique fashion with the
Executive. The framers knew about dangers and emergencies, and they understood
the virtues of speed and secrecy. They lived at risk also but drafted a charter that
vested in Congress the crucial responsibility for moving the nation from peace
to war. Contemporary justifications for presidential dominance must be examined
closely to challenge explanations that initially may have superficial allure.
Contemporary Justifications
It is often argued that presidential power must be defined more broadly today than
the model formulated by the framers. They agreed that the President could “repel sudden attacks,” but advocates of executive power in recent decades want
more elbow room than that. The climate after World War II, they say, is far more
dangerous and much more in need of decisive presidential action. Promptness,
we are told, is a quality of the Executive, not the Legislature.
It is simplistic to claim that the conditions of the modern world make it necessary to vest in the President the crucial decision to go to war. If the current risk
to national security is great, so is the risk of presidential miscalculation and aggrandizement-all the more reason for insisting that military decisions be thor-
291
292
CHAPTER TWELVE
oughly examined and approved by Congress. Contemporary presidential judgments need more, not less, scrutiny.
The framers also lived at a dangerous time, possibly more hazardous than today. After granting the President power to repel sudden attacks, they relied for their
safety primarily on Congress. In a succession of statutes, Congress authorized the
President to respond to emergencies involving Indians, domestic rebellions, the
Barbary conflicts, and other national security issues. Presidents acted on statutory,
not inherent, authority. As noted in one study:
Despite glib assertions of the novelty and gravity of the post-Korean war
period, the threats confronting the United States during the first quarter century of government under the Constitution imperiled the very independence and survival of the nation. The United States Government fought
wars against France and England, the two greatest powers of that period,
to protect its existence, preserve the balance of power, and defend its commerce. Notably, both conflicts, the Franco-American War [the Quasi-War
of 1798-1800] and the War of 1812, were authorized by statute. 1
In the years following World War II, there has been more than enough time
to seek authorization in advance from Congress before committing the nation to
war. Even if one could argue that President Truman needed to take immediate
“police action” to respond to North Korea’s provocation, he had time after that
to ask Congress to authorize extended hostilities. Presidents find time to seek
advice from executive officials, often over a period of months, before acting.
They even reach out to inform allies of planned attacks. Few uses of unilateral
force by the President can be explained by genuine emergencies. Contrived emergencies, perhaps, but not real ones. In the period since World War II, only one
situation justified presidential action in the absence of congressional authority:
President Ford’s evacuation of American and foreign nationals from Vietnam.
Does the specter of nuclear war-unknown to the framers-require concentrating in the President the sole responsibility for launching missiles? That is
a beguiling, but misleading, proposition. There is a difference between first use
of nuclear weapons (any initiation of war requires prior congressional authority)
and retaliatory second strikes (a unilateral presidential power pursuant to the executive duty to repel sudden attacks). Policymakers generally assume that nuclear
1. David S. Friedman, ”Waging War against Checks and Balances-The Claim of an Unlimited Presidential War Power,” 57 St. John’s L. Rev. 213, 228 (1983).
RESTORING CHECKS AND BALANCES
293
weapons would be used only after a conventional war escalates, over a period of
weeks or months, to a nuclear confrontation. Time is available within the executive branch to debate and decide the use of nuclear weapons, permitting adequate opportunity for a congressional role. 2
If Presidents decide that an emergency requires action without first obtaining
approval from Congress, it is far better for them to use military force on suspect
authority and come later to Congress to explain what they did, why they acted,
and request Congress to provide retroactive authorization. The burden is wholly
on the President to make the case. Congress is the only branch that can confer
legitimacy on an emergency measure. That is the procedure Lincoln used in the
Civil War. It is the proper model for all Presidents. Congress should not attempt
to provide advance authority for every type of emergency action. Having been
burned on the Tonkin Gulf Resolution, the Senate Foreign Relations Committee concluded in 1969:
Finally, should the President find himself confronted with a situation of
such complexity and ambiguity as to leave him without guidelines for constitutional action, it would be far better for him to take the action he saw
fit without attempting to justify it in advance and leave it to Congress or the
courts to evaluate his action in retrospect. A single unconstitutional act,
later explained or pronounced unconstitutional, is preferable to an act
dressed up in some spurious, precedent-setting claim of legitimacy. 3
The concept of “defensive war” has expanded in recent decades beyond any
definition familiar to the framers. During the nineteenth century, defensive war
was confined to protective action along the b
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