War Powers Controversy

I. Declaration of War v. Making War

A. "declaring" war as an international legal act

  1. Congress has this limited authority
  2. President can deploy US forces at his pleasure
  3. Congressional restrictions on deployment decisions interfere with CiC clause

B. Constitution restricts president's power to make war, understood sequentially (Boylan)

  1. International legal argument is flawed
  2. Constitution grants most control of military, except in time of war, to Congress
  3. In time of war, president has control as CiC to ensure adequate direction of the military

II. Dilemmas of WP Debate

A. Institutional Power of President

  1. prior to 1945, forces in being were limited
  2. after 1953, US has sizeable peacetime military
  3. authority over the military accumulates in executive branch
  4. institutional "facts" become embedded; difficult to change
  5. ideological justification of presidential power emerges
  6. national security state as the normal state

B. Nuclear War and Presidential Power

  1. intense secrecy surrounding nuclear weaponry
  2. civilian Atomic Energy Commission (1947-1974), then the Dept. of Energy, oversees nuclear weapons development
  3. fear of surprise attacks generates demand for speed
  4. authority concentrated in secretive White House-Defenes-Energy complex
  5. secrecy remains intense; limited Congressional scrutiny; e.g., Sen. Bob Kerrey on the SIOP

C. Is Representative Democracy Threatened?

  1. President acts like "dictator"
  2. Diminished domestic legitimacy in use of force
  3. Serious harm could be done without proper deliberation

III. War Powers Resolution

A. Passed in 1973 to limit president's powers and assert presidential authority

B. Mixed Record

C. War Powers Supporters

  1. strikes a balance between need for swift action and democratic control
  2. Grants president the authority to use force for 60-90 days
  3. After 90 days, president must withdraw US forces unless Congress acts

D. Critics, I: Interferes with President's Authority

  1. Congress infringes on the CiC powers of President
  2. 90-day clock is arbitrary
  3. by requiring Congress to act to extend 90-day period, the act encourages adversaries to delay

E. Critics, II: Fails to Restrain President

  1. WPR wrongly granted president the right to deploy forces for 90 days
  2. 90-day "clock" only invoked when president reports in a proper manner
  3. 90 days is too long (in Kosovo, the airwar ended in 77 days)
  4. with INS v. Chada, concurrent resolution option is threatened