Louis Fisher - Presidential War Power

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)
ISBN 978-0-7006-1978-8 (ebook)
1. War and emergency powersUnited States. 2. National securityLaw and legislationUnited States. 3. United StatesForeign relationsLaw 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 Z39.481992.

To the republican principle

that reserves war-making

to the legislature

1
The Constitutional Framework

2
Precedents from 1789 to 1900

3
America Steps Out: 19001945

4
The UN Charter and Korea

5
Taking Stock: 19511964

6
Vietnam and the War Powers Resolution

7
Military Initiatives from Ford to Bush I

8
Military Actions by Clinton

9
George W. Bush

10
Barack Obama

11
Covert Operations

12
Restoring Checks and Balances

The first edition of this book received a lead review in the New York Times Book Review on May 7, 1995. The reviewer, Theodore Draper, noted that ever since the Korean War, Presidents have been violating the Constitution of the United States. He wrote that I had taken on all of the Presidents and their lawyers who have contrived for almost half a century to offer excuses for autonomous Presidential war-making, and called my book a hygienic effort to bring us back to the law.

Those same goals motivate this third edition. The last two decades have underscored the extent to which the power of war has shifted to the presidency, with little restraint by Congress or the courts and little comprehension by the general public of the damage done to constitutional values, representative government, and democracy. The contemporary definition of executive powerto send troops anywhere in the world whenever the President likeswould have astonished the framers of the Constitution. Their structure of government very deliberatively rejected the British models that gave the executive exclusive control over foreign affairs and the war power. Instead, the framers vested in Congress explicit control over the initiation and authorization of war, power over foreign commerce, approval of treaties, confirmation of ambassadors, power of the purse, and other authorities over external affairs.

The trend of presidential war power since World War IIthe last congressionally declared warcollides with the constitutional framework adopted by the founding fathers. The period after 1945 created a climate in which Presidents have regularly breached constitutional principles and democratic values. Under these conditions, Presidents have exercised war powers with little or no involvement by Congress.

The scope of presidential war power climbed to such heights that Congress felt compelled to pass the War Powers Resolution in 1973. Later, in 1980 and 1991, it adopted new statutory procedures to tighten legislative controls over covert actions. The Iran-Contra affair of the Reagan administration was not an aberration. It was merely a recent example of newly fashioned theories of executive power operating without effective checks from Congress, the judiciary, or the public. Numerous lawsuits, brought by members of Congress, were routinely sidestepped by federal judges who declined to place limits on presidential power.

So great is the magnitude of executive power that President George H. W. Bush invaded Panama in 1989 without any involvement by Congress, and he threatened to take military action against Iraq in 1991 solely on the basis of resolutions adopted by the UN Security Council. Only at the eleventh hour did he obtain authority from Congress. The willingness of President Bush to use military force in 1991 without congressional authorization provoked a grave challenge to constitutional government.

President Bill Clinton used military force repeatedly without ever seeking authority from Congress, intervening in Iraq, Somalia, Haiti, Bosnia, Sudan, Afghanistan, and Yugoslavia. President George W. Bush came to Congress twice to seek legislative action on the Authorization for Use of Military Force Act (AUMF) of 2001 and the Iraq Resolution of 2002. However, he later announced that he ordered the use of military force under what he considered his constitutional authority, not authority granted by Congress.

To find a comparable threat to constitutional government we have to go back to 1950, when President Truman, on his own authority, ordered troops to Korea. Truman, Bush I, Clinton, and Bush II claimed they could send American troops into large-scale combat without first receiving authorization from Congress, and in each case they justified their position largely on the basis of resolutions adopted by the UN Security Council. When Clinton was unable to obtain authority from the UN for his war against Yugoslavia, he turned to NATO for authority. In all of these actions, Presidents appealed to international or regional institutions rather than to Congress. President Barack Obama did the same with his military action against Libya in 2011.

What are the constitutional sources for presidential war power? At what point is prior authorization by Congress required? Why has Congress failed to protect its constitutional prerogatives over questions of war and peace? What role do the federal courts have in policing the limits of executive power? How do we keep presidential power consistent with the Constitution and the intent of the framers? Those questions, of fundamental interest to the liberties of American citizens, drive this book.

The entire manuscript of the first edition was read by David Gray Adler and Loch Johnson, who offered a number of helpful suggestions. I appreciate their close reading and the many contributions they have made to the study of war powers over a period of years. Colleagues who read specific chapters include David Ackerman, Richard Best, Ellen Collier, Robert Gerber, Robert Goldich, Nancy Kassop, Leonard W. Levy, Robert Spitzer, and Duane Tananbaum. I gained much from their insights. For the third edition, Chris Edelson and Stephen Weissman provided careful review of my chapter on Barack Obama. Over the years I have kept in touch with other scholars, including John Hart Ely, Michael Glennon, Louis Henkin, Edward Keynes, Harold Hongju Koh, Jules Lobel, John Norton Moore, Richard Pious, Robert Turner, and John Yoo. While not responsible for what I have written, but in many ways they helped sharpen and deepen my understanding of the constitutional relationships between Congress and the President. I am delighted to publish once again with the University Press of Kansas, which has published and encouraged an outstanding list of books on constitutional aspects of the presidency. At each stage of production the staff members maintained a remarkable level of professionalism and competence. For the first and second editions I appreciate the careful copyediting by Leslee C. Anderson. For the third edition, my thanks to Linda Lotz for thoughtful copyediting.