War Powers

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Louis Fisher, "Scholarly Support for Presidential Wars" (PDF, 95KB), 35 Pres. Stud. Q. (2005). For the past half-century, political scientists, law professors, and historians have promoted a greatly strengthened presidency, including the authority to take the country to war without a declaration or authorization from Congress. In justifying this shift of power, scholars have given little thought to legal boundaries and constitutional principles, including checks and balances and the system of separated powers. Students in high school, college, and law schools need a more balanced and constitutional instruction on the presidency. Those who speak to the public have a duty to explain (and understand) basic principles and the rule of law.

"Presidential Power in National Security: A Guide to the President-Elect" (PDF, 500KB), 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, "To War or Not to War: That is Still the Question for Congress, not the President" (PDF, 94KB), Legal Times, March 10, 2008, pp. 44-45. During the 2008 presidential campaign, candidates spoke deferentially about popular control. They said the election was not about them but about the voters, and that change had to come from the bottom rather than the top. Yet when the subject was the President's power as commander in chief, they switched course and spoke about their unilateral powers to act and to decide on military commitments. The record is clear that the framers placed in Congress (the people's representatives) the decision to send the nation to war and deliberately rejected the available monarchical models that vested all powers of war and foreign relations in the Executive.

Louis Fisher, "Domestic Commander in Chief: Early Checks by Other Branches" (PDF, 235KB), 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" (PDF, 88KB), 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, "Lost Constitutional Moorings: Recovering the War Power" (PDF, 430KB), 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.

Louis Fisher, "Deciding on War Against Iraq: Institutional Failures" (PDF, 1.48MB), 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.

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Last Updated: 08/03/2012