Presidential War Power.

• Author: Stromseth, Jane E.

In no part of the constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department. . . . [T]he trust and the temptation would be too great for any one man . . . .

- James Madison(1)

Admitting that we ought to try the novel and absurd experiment in politics of tying up the hands of government from offensive war founded upon reasons of state, yet certainly we ought not to disable it from guarding the community against the ambition or enmity of other nations.

- Alexander Hamilton(2)

With the Cold War over, Americans have grown more introspective about the role of the United States in global affairs. It could hardly be otherwise. America's rise to military preeminence, its overseas commitments and priorities, and its basic sense of international purpose all were forged by circumstances of the past fifty years that have changed dramatically. The Soviet threat is gone; once shaky allies in Europe and Asia are now comparatively stable and prosperous; the specter of cataclysmic nuclear war has receded while regional conflicts, ethnic strife, and humanitarian emergencies have moved to center stage. Although the world is no less violent than it was before, the American public feels comparatively more secure. That fact alone has led many Americans to reassess what the international posture of the United States ought to be and what sacrifices they are prepared to make to advance American interests and values abroad. Moreover, in the absence of an overarching Soviet threat, the commitment of U.S. armed forces overseas has become a more divisive issue domestically, and the question of Congress's constitutional role in such decisions has taken on new significance.

During the Cold War era, successive presidents claimed broad authority as the Commander in Chief(3) to send American troops into combat, not only to defend American forces and citizens abroad but also to defend allies and to protect U.S. security interests as the President defined them.(4) Presidents often simply informed Congress of deployment decisions already made, or nominally consulted with some members, but rarely asked the full Congress to authorize combat operations. Congress, despite its constitutional power to "declare War,"(5) grew comfortable playing a reactive role during the Cold War years, "scolding" the President after the fact if military action went wrong,(6) but rarely insisting on advance approval even when doing so might have been possible.(7) This war powers pattern - reinforced by judicial abstention - was

heralded by many presidents as an appropriate and necessary response to the Cold War dangers confronting the United States.(8)

Strong arguments can be made that this pattern of presidential assertion and congressional passivity was never constitutionally sound.(9) Whatever its validity, however, the sense of national emergency that sustained this pattern has dissipated, with the result that American officials (and members of the public as well) now look at many current conflict situations in a dramatically different light. For example, the civil strife in Somalia and Haiti, which policymakers previously would have viewed through a strategic lens as part of the larger U.S.-Soviet struggle, are now seen mainly as humanitarian crises. At the same time, the range of conflicts inviting the possible deployment of armed forces for operations other than war has expanded. American troops are deployed abroad today not only to defend and reassure U.S. allies but also to contain the spread of conflict, as in Macedonia; to implement complex peace agreements, as in Bosnia, and to help build domestic stability, as in Haiti. Multilateral organizations, particularly the United Nations (UN) and the North Atlantic Treaty Organization (NATO), play a greater role in authorizing and fielding operations both in peacetime and in conflict situations. All these developments provide much grist for future struggles over war powers between Congress and the President.

In short, now that the pressures of the Cold War have receded and the United States enters a complex new era in international affairs, the age-old question of the constitutional division of war powers between Congress and the President should be reexamined. Louis Fisher's timely book, Presidential War Power,(10) is a helpful historical resource for beginning this effort. Fisher provides a concise survey of executive-legislative practice regarding the commitment of U.S. combat forces abroad, from the earliest days of the Republic to the recent involvement of U.S. forces in Somalia, Haiti, and Bosnia, presenting his analysis in an accessible case study format. Fisher not only examines the major war powers issues that have arisen since 1789 and the various claims advanced by presidents in favor of an expanded war powers role; he also ably integrates into his historical survey a discussion of seminal judicial decisions. The result is a readable and well-documented book of interest to the general public and use to scholars.

The overarching theme of Fisher's book is that a sharp tension exists between the Founders, original understanding of the constitutional allocation of war powers and most post-World War II practice. "The constitutional framework adopted by the framers is clear in its basic principles," Fisher argues.(11) The Founders gave Congress the authority "to initiate war"(12) or "to mount offensive actions,"(13) while the President, as Commander in Chief, "could act unilaterally only in one area. to repel sudden attacks" against the United States or American armed forces.(14) With limited exceptions, the two political branches largely adhered to this basic understanding, Fisher argues, from 1789 to the end of the nineteenth century. A few deviations occurred in the early twentieth century as the United States emerged as a global power. Since the end of World War II, however, "[t]he trend of presidential war power"(15) consistently has conflicted with "the constitutional framework adopted by the founding fathers,"(16) Fisher contends, and "[p]residents have regularly breached constitutional principles and democratic values."(17) Fisher, in short, draws a striking contrast between the consistent practice of congressional authorization of war in the earlier years of the Republic and the often perfunctory, last-minute notice and consultations common today.

Fisher rejects the various claims advanced by modem presidents to justify war powers beyond repelling sudden attacks on American territory or forces.(18) These include claims based on expanded concepts of defensive war and on treaties such as the United Nations Charter. Fisher contends that neither America's more significant global role nor changes in weapons technology since 1789 provide compelling reasons to understand the constitutional war powers of Congress and the President differently today. He concludes with specific proposals for restoring checks and balances, including a reinvigorated War Powers Resolution;(19) but above all he urges Congress to assert itself and use the tools at its disposal (especially the power of the purse) to fulfill its constitutional role.(20)

Presidential War Power is an urgent plea to politicians, scholars, and the American public to reexamine our Constitution, our history, and our current practice. Fisher's fundamental point is compelling. The power to commence war was given to Congress under the Constitution and should remain there, notwithstanding executive claims or recent practice to the contrary. The Founders' conviction that no one person should have such enormous power, but that the legislature as a whole should make the critical decision for war on behalf of the people whose lives and resources would be placed at risk,

reflected republican principles and a view of human nature that have lost neither their contemporary relevance nor their normative appeal.(21)

Fisher's book is far less helpful, however, in addressing the Constitution's allocation of power with regard to small-scale military operations that do not clearly involve initiating "war" or mounting "offensive" action against another state. Examples include the deployment of U.S. forces to Somalia in "Operation Restore Hope" to help create a secure environment for humanitarian relief operations and U.S. military involvement in Bosnia, first to protect UN-designated "safe haven" zones and, currently, to implement the Dayton Peace Agreement. Yet these are precisely the kinds of scenarios likely to preoccupy the United States in the coming years.

Resolving war powers questions raised by cases such as these, and indeed more generally, requires a searching examination of fundamental methodological questions in constitutional interpretation: How clear is the "original understanding" of the Constitution's allocation of war powers, and to what extent should original intent guide constitutional interpretation today? Can the basic purposes the Founders sought to advance in their allocation of war powers be convincingly "translated" into our very different world and, if so, how?(22) What significance does historical practice under the Constitution from the Founding to the present hold for understanding the respective war powers of Congress and the President today? These are the critical questions that divide war powers scholars.

Yet Fisher's book, despite its other virtues, gives these questions less attention than they require if the debate over war powers is to move forward at all in the post-cold War period. For example, while Fisher's account of the original understanding is persuasive in its essentials, his analysis would have been more compelling had he critically engaged the major competing scholarly accounts of original intent. Proponents of those alternative views raise important questions about the scope of the President's defensive war...