restricted access Balancing War Powers in an Age of Terror
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Balancing War Powers in an Age of Terror

President Gerald R. Ford once asked "where, then, does the balance of [war] powers lie?" Answering his own question, Ford stated that:

[The balance] cannot lie in a constant rivalry for power. As Eugene Rostow has written, this 'would tend to convert every crisis of foreign policy into a crisis of will, of pride and precedence between Congress and the President.'

The balance must lie, instead, in a frank recognition of the basic strengths and weaknesses of both the executive and legislative branches of government, in the institutional capabilities and limitations imposed by the Constitution and by common sense.1

For the Founding Fathers, that balance emerged from the fundamental structure of constitutional government that they created. "Ambition must be made to counteract ambition," James Madison wrote in a powerful argument for the separation of powers.2 At first glimpse, this might seem to contradict Ford's advice to avoid "a constant rivalry" over the conduct of America's war efforts. But, if the rivalry over control of war powers occurs not with the branches fighting over the right to use this or that particular power but rather involves the presidency and Congress wielding their own specific powers both in pursuit of a coherent policy as well as to prevent the other from becoming too strong, then Ford's vision can be merged with that of the Founders. While constant rivalry and competition between the branches may not be desirable, neither is a situation in which one branch exercises unchecked power. A sound theory of war powers should create a situation in which each branch uses its unique strengths and weaknesses not only to check the ambitions of the other but also to develop common solutions to the challenges that threaten the security of the nation.3

The war on terror has posed considerable problems for the constitutional balance of powers between the executive and legislative branches. In its efforts to protect the United States in the wake of the September 11 attacks, the Bush administration has tried to expand the scope and breadth of executive power. Time and time again, when the constitutionality of its policies have been challenged, the executive branch has responded with [End Page 1] claims of inherent presidential power to take actions necessary to defend the country. However, in almost every instance of a legal challenge to those policies, the administration has lost.

What do these challenges and defeats mean for the overall distribution of war powers? On the one hand, the powers claimed by the executive branch would give the president unprecedented powers for a potentially indefinite period, as it is hard to imagine that terrorism—a tactic rather than an enemy—will ever be defeated. On the other hand, it must be recognized that the threat of international terrorism is no idle matter. Terrorism of the kind that manifested itself on September 11, 2001, is a threat unlike any other that the United States has ever faced.

The question of allocating war powers between the president and Congress is a critical one. If too much power is concentrated in the hands of the executive, the country risks undermining basic constitutional protections of individual freedoms and eroding the democratic nature of the republic; if too much of a role is given to Congress, the country may not be able to effectively develop policies to protect itself. And when there is no clear theory guiding the actions of the government, policy muddles along, with the executive branch taking the lead by putting an idea into action and hoping that it will withstand judicial scrutiny. Thus there is a need for a balanced theory of war powers that respects the constitutional allocation of power and heeds the advice of President Ford.

Neither of the two standard arguments about war powers strikes an effective and theoretically sound balance. Both arguments start with what may be simultaneously the most important and most vague delegation of war powers in the U.S. Constitution: the declare war clause. Article I, Section 8 gives the power to declare war to Congress but leaves the meaning and scope of that power...