The Politics of the War Powers

Presidential War Powers, by Louis Fisher, presents a clear, detailed picture of the evolution of presidential power to commit the armed forces of the United States to international combat. The original constitutional notion of shared powers with the Congress has evolved, he argues, into executive usurpation and dominance. Fisher laments this change and argues that the original concept needs to be restored. It is an argument that should not be ignored. An important book, Fisher’s study should be read along with John Hart Ely’s War and Responsibility ( 1993), Harold Koh’s The National Security Constitution: Sharing Power After the Iran-Contra Affair (1990), Robert F. Turner’s Repealing the War Powers Resolution: Restoring the Rule of Law in U.S. Foreign Policy (1991), Francis P. Wormuth and Edwin P. Firmage’s To Chain the Dog of War: The War Powers of Congress in History and Law (1986), and the numerous articles by Ellen C. Collier, Michael J. Glennon, John N. Moore, and Michael Rubner.

The discussion begins with the deliberations of the framers of the Constitution, who were relatively clear, Fisher suggests, in dealing with the war powers: although Congress was the central actor, power was to be shared and collective judgments were to prevail. The executive dominance model was rejected. Decisions to initiate war were placed in the hands of Congress; the president had unilateral power only to repel sudden attacks. What ambiguity there was involved the meaning and scope of the commander in chief clause where no rigorous definition was provided. More precise boundaries were to be set by precedents developed through historical experience.

Nineteenth-century precedents largely reinforced the understandings of the framers of the Constitution, Fisher asserts. In the wars with the Indian tribes, the Whiskey Rebellion, in the quasi-war with France, conflicts with the Barbary powers, the War of 1812, largely in the Mexican War in the 1840s, and in the Spanish-American War, there was executive-legislative cooperation in committing military forces to international conflicts. Congress delegated to the president substantial authority to defend American lives and property abroad by measures “not amounting to acts of war.” After recounting these events, Fisher concludes that “the power of war in the nineteenth century remained basically in the hands of Congress and Presidents recognized the rule of legislative supremacy in matters of going to war” (p. 41).

In the period from 1900 until the end of World War II, these understandings began to break down. Military intervention to protect American lives and property became quite common. Presidents began to justify these actions on the basis of inherent executive responsibilities. Fisher sees the “Roosevelt Corollary” to the Monroe Doctrine as playing a prominent role in justifying additional executive authority. If, as President Theodore Roosevelt argued, the United States could intervene militarily in other countries not just to protect American lives and property, but more broadly to promote the goals of American foreign policy, the floodgates were opened for numerous military interventions. Such was the case during the Roosevelt, Taft, and Wilson administrations and beyond. For example, Fisher states, “From 1909 to 1933 the United States was rarely out of Nicaragua, moving in repeatedly” (p. 52). As an added benefit in this chapter, Fisher offers a devastating critique of the reasoning of Justice Sutherland in the Curtiss-Wright case in 1936. This case, so frequently cited in defense of inherent executive powers in foreign affairs “is filled,” according to Fisher, “with historical and conceptual inaccuracies” (p. 61).

If the first four decades of the twentieth century saw the growth in the use of presidential power in ordering military action abroad, the period from the end of World War II to the present witnessed an explosion of such claims. Perhaps the first major assertion came at the outset of the Korean police action. President Truman’s legal authority to commit U.S. armed forces to Korea, Fisher claims, “was nonexistent” (p. 85), yet the congressional response to the president’s “usurpation” was essentially...