Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why worry about war powers? If we accept that there is a constitutional basis for presidential predominance in foreign policy (a view I advanced in Pt. 1), it is hard to see why we should devote most of our attention to minor military operations carried out in furtherance of that policy. If we have a problem with the operation, we should argue with the foreign policy that underlies it, not the Constitution. The chief reason to worry about war powers is because of the dubious constitutional origins and consequences of “real” wars – military conflicts such as Korea, Vietnam, the 1991 Gulf War and the recent wars in Afghanistan and Iraq. These “limited” wars fought since 1945 have posed grave challenges for our constitutional system and imposed massive costs on the country.
Speaking very broadly, since 1945 the US has enjoyed many discrete military successes. To be sure, post-1945 history is not usually described this way. That is because those limited successes were wrapped in an almost unbroken series of much greater political failures. By “political” I mean to include failures of policy, diplomacy, public justification, and party-political disruption. Certainly presidents have had a much easier time starting wars than justifying them.
It is surely true that the war powers debate was generated by these failures. But in assessing them, the debate has tended to concentrate on the question of authority narrowly construed. For example, did George H. W. Bush have authority to launch a war against the Iraqi army in Kuwait? Most scholars say yes, because Bush went to Congress in January 1991 and obtained a resolution of authorization, one of a number of “AUMFs” sought by presidents since Eisenhower. But this limited approach does not answer every important constitutional question we could ask. In fact, Bush never accepted Congress’s legitimate constitutional role and was willing, like most post-1945 presidents,to launch a major war on his own authority. Crucially, this meant that he never had to formulate a robust rationale for the war in light of the risk that, if Congress rejected his request for war authority, he would have had to cancel the operation and suffer the attendant policy consequences.
My review of the wars fought since 1945 shows that every single one has featured serious problems of executive branch deliberation that are directly connected to an infirm constitutional process. The problem is not so much that presidents have usurped authority but rather that the unilateral presidential decisionmaking that was imagined as a necessary element of the Cold War constitutional order was inherently defective.
What sort of defects are we talking about? It may seem startling, but history discloses no record of anything close to an adequate decisionmaking process for any war post-1945. In terms of a terrible or even nonexistent decisionmaking process, the 2003 Iraq War was unfortunately all too typical. Basic policy alternatives are rarely identified. The executive branch seems incapable of deliberating in a systematic way. This has had consequences for policy. The Iraq War was launched without a careful review of the available evidence concerning WMD. Truman ordered US troops to unite Korea without considering Chinese reaction. But the problems go further than bad policy choices. There were several instances,including the 1991 Gulf War and the war in Afghanistan, in which the executive branch was unable to decide on war aims, to identify the basic purpose of the war. This has not only hurt policy, but the ability of the president to justify the war to the public in a democratic way. Moreover, there is considerable evidence that each president who has fought a major war becomes personally involved in an unhealthy psychological sense, overwhelmed and eventually paralyzed not only in reacting to the changing circumstances of the war but with respect to foreign policy generally. Occasionally, these troubles have become serious enough to cause serious disturbances in the American governmental system, even constitutional crises. The ultimate lesson is that wars cannot be fought by the president alone.
These defects constitute a kind of “reverse proof” that the Constitution requires robust interbranch deliberation before the decision for war is made. The original constitutional order – the fundamental arrangement of powers as implemented by institutions – conflicts with the Cold War constitutional order. The Constitution did permit the president to become the leader in foreign policy. Those who created the Cold War constitutional order thus had some basis for thinking that a unilateral approach to foreign policy was justified. Unfortunately war, “real” war, is special. It is marked as such by the Constitution and confirmed by our concrete historical experience. Wars thus could not be conducted unilaterally without placing the entire constitutional system at risk. That is why we need to focus on how these major military conflicts came about and how an inadequate decisionmaking process might be avoided in the future.
Because this is the end of one cycle of posts, I’ve allowed comments. In the next cycle, I’ll describe some of the ways this project changed my view of post-1945 American history. Posted
by Stephen Griffin [link]
I can't see how "interbranch" discussion or cooperation will solve the problem. For one thing, there isn't actually any cooperation. The Executive controls the flow of evidence and gives what it wants in order to achieve its goal. For another, the build-up to war generally involves a rush of nationalistic feeling which Congress has shown itself unable to resist since at least the War of 1812.
in my opinion, only if we do away with the all volunteer army will the public be focused to the degree necessary to force a real dialogue. whoever becomes president is too vested to be a neutral arbiter and the partisan system is too vested in the status quo to introduce positive change.
It's not always the case that decision making on the part of only the executive branch leads to "basic policy alternatives [being] rarely identified" or to an incapacity to "deliberat[e] in a systematic way." When Lyndon Johnson decided in July 1965 to send 100,000 troops to South Vietnam, with another 100,000 to follow the next year, the decision occurred after 6 weeks of extensive executive branch debate on sharply differing alternatives; escalatory moves prior to that were also lengthily debated over weeks or even months. By the same token, Kennedy's decision not to go to war in Cuba involved extensive deliberation entirely within the executive branch.
Nor is it the case that when Congress gets involved, basic alternatives are more carefully considered. When Congress declared war in 1917 and 1941, it did so in a few days, with the groundwork largely having been laid by executive branch policies over the preceding months or even years. In short, there is no necessary relation between involving Congress and deliberating carefully; nor is there any necessary relation between careful deliberation within the executive branch and wise decisions.
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