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Law Outlines Constitutional Law I Outlines

War Powers Outline

Updated War Powers Notes

Constitutional Law I Outlines

Constitutional Law I

Approximately 218 pages

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War Powers

  1. The United States Constitution provides that:

    1. The Congress shall have the power:

      1. "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;" Art. I, § 8, cl. 11,

      2. "To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;" Art. I, § 8, cl. 12,

      3. "To provide and maintain a Navy;" Art. I, § 8, cl. 13,

      4. "To make Rules for the Government and Regulation of the land and naval Forces;" Art. I, § 8, cl. 14,

      5. "To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" Art. I, § 8, cl. 15,

      6. "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;" Art. I, § 8, cl. 16.

    2. "The executive Power shall be vested in a President of the United States of America." Art. II, § 1, cl. 1.

    3. The President "shall take Care that the Laws be faithfully executed . . . ." Art. II, § 3.

    4. "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 actual Service of the United States." Art. II, § 2, cl. 1.

  2. When does the President have the power to take military action unilaterally?

    1. Youngstown Categories - Jackson Concurrence (pg. 828)

      1. FRAMEWORK FOR ANALYSIS

        • (1) If there is a statute, can it be fairly read to give authority to the President or to prohibit action by the President?

        • (2) Which Youngstown category?

      2. Category One

        • "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it is worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest presumption and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it." Youngstown Sheet & Tube Co. v. Sawyer (Jackson, J., concurring) (pg. 828)

          • In Hamdi v. Rumsfeld (pg. 841), the Court held that the Executive did indeed have the authority to detain citizens who qualify as "enemy combatants" because the "Congress has in fact authorized Hamdi's detention, through the AUMF." The Court concluded that "the AUMF is explicit congressional authorization for the detention" of enemy combatants. (pg. 843)

            • Thus, the situation in Hamdi falls under the purview of Youngstown Category One, whereby the President was acting pursuant to "express or implied authorization of Congress."

      3. Category Two

        • "When the President acts in absence of either a congressional grant of authority or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures of independent presidential responsibility. In this area, any actual test of power is likely to depend in the imperatives of events and contemporary imponderables rather than on abstract theories of law." Youngstown Sheet & Tube Co. v. Sawyer (Jackson, J., concurring) (pg. 828)

          • THREE APPROACHES

            • (1) Traditional/Originalist Approach - John Hart Ely

              • All wars, big or small, must be authorized by Congress.

                • "The power to declare war was constitutionally vested in Congress. The debates, and early practice, establish that this meant that all wars, big or small, 'declared' in so many words or not - most weren't, even then - had to be legislatively authorized." John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath 3 (1993)

              • EXCEPTION

                • The President could act unilaterally to repel a sudden attack BUT he has to come to Congress and seek authorization for his actions either simultaneously or after the fact; thereafter, the President must abide by the judgment of Congress. See John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath 6 (1993)

              • REFUTATION:

                • It simply seems inconsistent for this approach to stick so closely to the text of the Constitution for the general proposition that all wars, big or small, must be authorized by Congress WHILE at the same time recognizing an exception for repelling sudden attacks. Indeed, there is no text in the Constitution that supports the idea that the founders intended there to be such an emergency authority vested in the President. Moreover, there is text that strongly weighs against the idea that the founders intended such an emergency authority to exist. Article 1, § 10, cl. 3 provides that "[n]o state shall, without the consent of Congress . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." This is an emergency authority to repel sudden attacks vested in the States, not in the President. One of the canons of statutory construction is "expressio unius est exclusio alterius," which roughly translates to mean "the expression of one thing is the exclusion of another." Under this canon of statutory construction, since the Constitution explicitly provides for emergency authority in the States for repelling sudden attacks, while remaining completely silent with respect to whether such an authority exists in the President, it is to be understood that the founders did...

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