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The ability to use military force is the ultimate power of any government. Under our Constitutional system of checks and balances, this power is shared between the Executive and Legislative branchesEarly cases suggested that president had significant authority to act in case of foreign attack or significant threatIn almost all cases where president acted without advance authority, Congress would authorize or limit activities soon afterward, and Presidents generally followed Congressional direction.Early Congress less concerned about Presidents using force abroad, more concerned with limiting Presidential authority to use military within the USA
War Power of Congress - Article I, section 8
“...and provide for the commonDefenceand general Welfare of the United States;”“To define and punish Piracies committed on the high Seas, and Offences against the Law of Nations;”“To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;”“To raise and support Armies. . .”“To provide and maintain a Navy;”“To make Rules for the Government and Regulation of the land and navy Forces;”“To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;”“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the militia according to the discipline prescribed by Congress;”“. . . for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;”
War Power of Congress - Article I, section 8
Don’t forget: Congress also has authority"To make all Laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States or in any Department or Officer thereof."
War Powers of the President – Article II
Article II, section 2:“ He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors. . .”“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”Article II, section 3:"... he shall take Care that the laws be faithfully executed..."
War Powers – Early cases
Bas v.Tingy(1800)–Congress can “authorize war in different manners, with different levels of authorityTalbitvSeeman(1801) -Congress, in declaring war (authorizing hostilities) can frame the nature and extentof actions tobe permitted.Little v.Barreme(1804) -Court will enforce specific Congressional limits placed on President’sauthorityDurand v. Hollins (1860)President’s authority and obligations to act require the authority to act in the absence of Congressional authorization when necessary.The Prize Cases (67 US 635 (1863) -Congressional authorization is not needed to permit president to act when war is thrust upon the nation. (NOTE here, though, Congress affirmatively and retroactively approved of the President’s actions
Declarations of War, Authorizations of Use of Force, and Inherent Power of the President
Congress has formally declared war only 11 times in U.S. history.Congress has specifically authorized the use of military force only 11 other times.The Korean War (1950 – 1954) was not authorized at all by Congress.President Truman used, as authority, the United Nations Participation Act of 1945, which was ratified by the U.S. Senate, and by citing resolutions passed by the United Nations Security Council in 1950.This precedent has been cited by subsequent presidents as justification for using military force without congressional authorization, as in Panama in 1989 and Iraq in 1990 under George H.W. Bush, and Haiti and Bosnia under President Clinton in 1994.Congressional Research Service Report"Declarations of War and Authorizations for the Use of Military Force:Historical Background and Legal Implications.“by JenniferElseaand RichardGrimmett,
Youngstown Sheet & Tube v. Sawyer,343U.S. 549 (1952)
InApril of 1952, during the Korean War, President Truman issued an executive order directing the Secretary of Commerce to seize and operate most of the nation's steel mills in order to avoid the expected effects of a strike by the United Steelworkers of America.Steel production was essential to the American war effort.UnlikeCurtiss-Wright, which upheld the president's authority, the Court in this case held that the President didnothave the authority to issue his order.The President's power as Commander in Chief of the Armed Forces did not extend to labor disputes and, since there was no congressional statute that authorized the President to take possession of private property in a situation such as that presented by the case, his order was unlawful.While ruling is important, it is theconcurring opinionwritten by Justice Robert Jackson that has become the important part of the opinion.
Youngstown Sheet & Tube v. Sawyer,343U.S. 549 (1952)
Jackson evaluated the balance of Presidential and Congressional power to fall into one of three categories:Whenactionis pursuant toexpressor implied authorization of Congress, presidential authority is at its maximum,“includingall possessed in his own right under the Constitution plus all that Congress can delegate.”In thesecircumstances (only),he personifies federal sovereignty.WhenPresidentacts in the absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which authority is concurrent or uncertain. Therefore,congressional inertia, indifference or inactivity may as a practical matter enable, if not invite, action on independent presidential responsibility. In this area, the test of power likely depends on the imperatives of events rather than on abstract theories of law.When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powersminusany constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a caseonlyby deciding Congress has no authority to act.Any such claim of Presidential power must be scrutinized with caution, as it risks the equilibrium established by our constitutional system.Think about how this approach plays out in practice
Orlando v. Laird, 317 F. Supp 1013 (E.D.N.Y. 1970)
Enlistees in the United States Army who received orders to report for transfer to Vietnam sued in June 1970 to prevent the Secretary of Defense, the Secretary of the Army, and the commanding officers who signed their deployment orders from enforcing those orders.The Tonkin Gulf Resolution, which was passed by Congress in 1964 and authorized military activity, had been repealed by Congress in June 1970.The enlistees argued that the executive officers had exceeded their constitutional authority by ordering them to participate in a war that was no longer properly authorized by Congress.Court denies relief dismissing the case as a political question.In its opinion, the Court notes that actionby Congress in appropriating funds, etc., can provideimplicitapproval of presidential action and, absent specificCongressional disapproval, will control.
Campbell v. Clinton 52 F. Supp. 2d 34 (D.C. C. 1999),aff’d203 F.3d 19, (DC Cir., 2000)
Case brought by members of Congress, challenging deployment of troops and use of force in the Former Yugoslavian RepublicsThe Federal Courts dismissed the case forlack of standingand asa political question, stating that the matter was not properly an matter for the Court:“Where, as here, Congress has taken actions that send conflicting signals with respect to the effect and significance of the allegedly nullified votes, there is no actual confrontation or impasse between the executive and legislative branches and thus no legislative standing.Because plaintiffs' alleged injury is caused in part by their failure to persuade their colleagues in the Congress to defeat the budget authorization bill and to vote for the resolution directing the President to withdraw troops from Yugoslavia, it also is not clear that plaintiffs can establish that their alleged injury is "fairly traceable" to the actions of the President rather than to the actions of their colleagues in the Congress.See Raines v. Byrd,521 U.S. at 830 n. 11, 117S.Ct. 2312.In other words, Courts will not allow Congress to avoid having to do its job.
The full set of 237 slides is available upon adoption. If you are a professor using this book for a class, please contact Beth Hall [email protected] request your slides.





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