THE WAR OVER WAR POWERS began soon after the ratification of the Constitution and shows little sign of resolution. Legislative and executive supremacists argue about who can initiate hostilities and what should happen after the initiation of hostilities. Legislative supremacists claim that presidents have usurped congressional power, while executive supremacists claim that presidents merely assert their formal powers when they initiate operations unilaterally. Each side marshals an impressive array of historical facts, eighteenth-century definitions, choice quotes from the Framers, judicial decisions, and selected constitutional clauses to argue its case. Each school claims to have the definitive reading of the distribution of powers.
The president and Congress have battled over these questions alongside scholars. Since World War II, presidents have regularly asserted their ability to initiate hostilities unilaterally, often citing international agreements or United Nations (UN) Security Council resolutions to support their actions. When called upon, the Office of Legal Counsel (OLC) provides a more thorough constitutional justification. Meanwhile, legislative supremacists and members of Congress claim the legislature must initiate the use of force without producing arguments or asserting powers that restrain presidents.
By the time the Ronald Reagan administration started developing the theory of the "unitary executive," Congress had already ceded a great deal of its war powers. (1) The events of September 11, 2001 and the subsequent fear of another attack provided the opportunity to develop the most thorough justification for unilateral executive action, as articulated by John Yoo. (2) Yoo served as the deputy assistant U.S. attorney general in the OLC under President George W. Bush, making it no surprise that during Bush's presidency, the unilateral exercise of power arguably reached a peak. While there are few politicians and scholars who present similar views, (3) it is surprising to find that during the Bill Clinton and Barack Obama administrations, the OLC produced arguments echoing Yoo's to justify circumventing congressional control over military actions. What explains the consistently expansive definition of executive power in these administrations?
In contrast to the contemporary gulf between the two sides of the argument, the early debates over war powers demonstrate a healthy struggle facilitated by the ambiguity of the constitutional text. The current debate denies the concept articulated most effectively by Edward S. Corwin: the Constitution is "an invitation to struggle for the privilege of directing American foreign policy." (4) Currently, the system lacks serious disagreements that allow the political branches to exercise their powers without encroaching on the other. This article will use the examples of the OLC's justifications for operations in Bosnia and Libya to demonstrate the problem.
UNDERSTANDING PRESIDENTIAL POWER: HAMILTON AND MADISON
Divisions over the nature of constitutional war powers emerged soon after ratification. Previously allies, Alexander Hamilton and James Madison present fundamentally different interpretations. While Hamilton views war powers as executive by nature, split between the legislature and the president, Madison claims that the initiation of hostilities is a deliberative power, making it legislative by nature. This dialogue demonstrates the lack of definitive answers about constitutional questions even...
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