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Presidential War Power

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Overview

In this new edition of a classic and bestselling work, Louis Fisher, one of our top Constitutional scholars, updates his arguments throughout, critiques the presidential actions of William Clinton and George W. Bush, and challenges their expansion of executive power. Spanning the life of the Republic from the Revolutionary Era to the nation's post-9/11 wars, the new edition covers: New military initiatives including the Use of Force Act, the Iraq Resolution of 2002, George W. Bush's "preemption doctrine," and his...
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Overview

In this new edition of a classic and bestselling work, Louis Fisher, one of our top Constitutional scholars, updates his arguments throughout, critiques the presidential actions of William Clinton and George W. Bush, and challenges their expansion of executive power. Spanning the life of the Republic from the Revolutionary Era to the nation's post-9/11 wars, the new edition covers: New military initiatives including the Use of Force Act, the Iraq Resolution of 2002, George W. Bush's "preemption doctrine," and his order authorizing military tribunals President Clinton's overt and covert military actions in Bosnia and against Yugoslavia, Iraq, Afghanistan, and Osama bin Laden; George H. W. Bush's reasons for not pushing on to Baghdad to overthrow Saddham Hussein after Desert Storm.; Numerous Congressional initiatives, including a 1995 effort to amend the War Powers Resolution and a proposed 1998 amendment to use the power of the purse to limit presidential military initiatives; The 1998 CIA "whistle-blowing" statute; New sections on the Vandenberg Resolution of 1948, the "Little Sarah" incident of 1793, and early apparent precedents that did not make the President the "sole organ" of foreign affairs; New material on letters of marque and reprisal, the law of nations, presidential "fame," and the contributions of Joseph Story.
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Editorial Reviews

Library Journal
Fisher, the senior specialist in separation of powers at the Congressional Research Service, Library of Congress, presents historic and constitutional arguments against the increasing usurpation by the president of war-making powers. Harry Truman set the modern precedent for circumventing congressional war powers by using United Nations authority to sidestep the Constitution during the Korean War. Dwight Eisenhower continued Truman's approach in covert government activities. With shocking ease, according to the author, subsequent presidents have continued this virtual presidential confiscation of the war powers. Fisher argues that they have done so by actions that violate both the letter and spirit of the Constitution. In an era of presidential temptation to increase popularity through foreign ventures, this study addresses one of the most important constitutional issues facing American government. Its relevance, clarity, and brevity commend the book to the widest readership.William D. Pederson, Louisiana State Univ., Shreveport
Samuel B. Hoff
Perhaps no other area of shared authority between the American president and Congress is as conflictive yet crucial to the nation's well being as the constitutional power to engage in war. Louis Fisher's theme is that the president's proclivity for making war has superseded Congress's designated power for declaring war. As a result, the post-World War II period created a climate in which Presidents have regularly breached constitutional principles and democratic values" (Preface, page xi). Employing a historical approach and case study format, Fisher traces the etiology and evolution of presidential war power over the two centuries of United States constitutional government, examines the manner by which Congress has sought to constrain presidential aggrandizement in military endeavors, probes how the courts have interpreted statutes and disputes arising from armed conflict involving American forces, and recommends what procedures should be pursued in order to return war authority to its proper constitutional place. Chapter 1 elucidates on how the framers of an independent American government, with the experience of abuses by the British monarch during the colonial period and the revolution behind them, "deliberately transferred the power to initiate war from the executive to the legislature" (p. 1). The architects of the Constitution likewise broke with British and European traditions by not allowing the president to create military offices, vesting the power of the purse in Congress, and establishing the principle that only the legislature could declare war. Chapter 2 details incidents from 1789 to 1900 when the executive branch steadily "claimed for the President the power to initiate war and determine its magnitude and duration" (p. 13), including skirmishes with Indian tribes, the 1794 Whiskey Rebellion, actions taken against the Barbary powers, the War of 1812, the Mexican War, the Civil War, and the Spanish-American War. Chapter 3, covering the period between 1900 and 1945, delineates numerous American military interventions in the early part of the twentieth century, particularly those in Central and south America, and also explores circumstances of World War I, the 1930s, and World War II. Chapter 4 tracks the creation of the United Nations and how reliance on it by President Harry Truman during the Korean conflict precipitated an extensive, extended debate in Congress. Chapter 5 analyzes the philosophy of President Dwight Eisenhower on the chief executive's potency in military affairs. His belief in collective decision making, interbranch cooperation, and popular backing for armed commitments abroad is contrasted with the views of President John Kennedy, who "was prepared to act during the Cuban missile crisis solely on his own constitutional authority" (p 111). Chapter 6 relays the policies and actions of the Lyndon Johnson and Richard Nixon administrations during the Vietnam War together with legislative Page 198 follows: reactions culminating in the 1973 War Powers Resolution. Chapter 7 details thirteen military missions occurring between the presidencies of Gerald Ford and Bill Clinton and how they were regarded by Congress and the courts. In Chapter 8, the author describes the history of covert operations and how increases in secret spending and augmented executive branch management of intelligence and national security matters led to abuses, efforts by Congress to control covert activities, countermeasures by the Reagan administration causing the Iran-Contra scandal, and finally to another series of legislative reforms. According to Fisher, "the temptation of executive officials to exceed constitutional limits in covert operations is ever-present, always pushing, and in constant need of checks from other institutions and the public" (p. 184). In the concluding chapter, Fisher adeptly responds to several propositions which imply that the president should bear primary responsibility for war-related actions. For instance, he claims that in unleashing the nation's nuclear arsenal, a distinction must be drawn between first use and retaliatory second strikes, of which only the latter is authorized by the president's duty to repel sudden attacks. Second, he counters the position that defensive wars could be fought by the United States based on mutual security arrangements before constitutional procedures would be followed. Third, he dismisses the argument that the more than two hundred precedents of American military expeditions abroad furnish modern justification for unilateral presidential forays, holding that international law and regional treaties outlaw interventions of decades past. Fourth, Fisher disputes one of the reasons cited by the Bush White House for the 1989 invasion of Panama -- that of seeking to stop illicit international drug trafficking -- because it would mean that the United States could then attack friendly, sovereign nations for the same goal. Fifth, he asserts that legitimacy should not be conferred on previous illegitimate military initiatives by chief executives which were either ignored or meekly protested by Congress. Sixth, although agreeing with its critics that the War Powers Resolution should be revised, Fisher objects to replacing concurrent resolution provisions found in the law with joint resolutions. Lastly, he warns against compelling courts to rule on all cases involving presidential war power as a mechanism for checking centralization of authority in the executive branch. Instead, he suggests several strategies for Congress to pursue to ensure that it remains a coequal in war-related decisions and policy. These proposals encompass invoking statutory restrictions, employing the power of the purse, participating regularly in oversight of administration actions, and refraining from publicly supporting presidential military initiatives deemed unconstitutional. Combining the themes he enunciates throughout the text with recommendations he advances, Fisher contends that independent "executive claims of military power are counterproductive for Congress, the President, and the country" (p. 204). PRESIDENTIAL WAR POWER compares favorably with two other recent Page 199 follows: books on the subject. In their edited work, Gary Stern and Morton Halperin include ten chapters on various topics associated with the war power. These include a historical survey written by Fisher, chapters on constitutional, treaty, international law, statutory, and judicial constraints on executive military actions abroad, and sections addressing covert actions, emergency war power, and common ground between the branches. Although containing a wealth of information, Stern and Halperin's book is far from comprehensive and is somewhat problematical in its organization. John Lehman, former Secretary of the Navy, assesses similar issues in his book, MAKING WAR. Lehman begins with the Desert Storm confrontation, then sequentially analyzes events from 1800 to the Libyan air strike in 1986. He regards the War Powers Resolution as irrelevant to military actions which transpired subsequent to its passage. In later chapters, he applauds executive agreements as an instrument for avoiding war, criticizes the proliferation of congressional investigations of executive branch personnel and policy as usurping the power of the president, endorses executive privilege as a device for maintaining control of confidential information, defends the American invasion of Panama on several counts, and decries the congressional bureaucracy which micromanages the defense establishment. It is safe to say that Lehman's book derives its conclusions from the author's direct experience in three Republican administrations. His pro-presidency perspective stands in sharp contrast to Fisher's legal orientation for scrutinizing war power controversies. Given his prior research and publications on the topic, it makes sense that Louis Fisher would merge them in such a volume as PRESIDENTIAL WAR POWER. However, other than his own contributions cited in the book, Fisher uses a myriad of diverse sources in presenting information. In the initial chapters, he taps constitutional convention debates, FEDERALIST PAPER articles, state constitution texts, and writings of various Constitution framers. In later chapters he utilizes Supreme Court and lower court cases, congressional debates and hearings, presidential memoirs and messages, newspaper accounts, texts of laws, statutes, and treaties, administration documents and publications, and scholarly studies. A second strength of the book is the plethora of justifications and tactic used to explain how presidents assumed dominance in military undertakings. Regarding justifications for wars involving American forces, Fisher argues that chief executives have cited protecting life and property, assisting allies, deterring aggression or terrorism, self defense, and national interest among other excuses. Beside illustrating why presidents initiate military conflicts, Fisher identifies the tools relied on to engage in such actions; these include executive orders, emergency acts, legislation, executive agreements, treaties, United Nations authorizations, enumerated constitutional powers of the president, deception, and loopholes in laws pertaining to military policy. The text is quite up-to-date, spanning incidents as recent as mid-1994, especially events like the Somalia and Haiti missions and the Bosnian crisis during the present Page 200 follows: administration. Furthermore, it is timely given the current debate over whether President Clinton must seek Congressional authorization before sending United States ground forces into Bosnia as cover for a possible withdrawal of United Nations peacekeeping forces and the June 1995 House vote to retain rather than repeal the War Powers Resolution. Despite its positive features, the book possesses a few shortcomings. First, it would be more appealing and helpful to the reader if the aforementioned justifications and tactics associated with presidential military initiatives, surveyed over several chapters, were summarized in the concluding section. One of the constitutional powers of the executive in foreign affairs and war listed in Appendix B, the constitutional stipulation in Article II that "The executive Power shall be vested in a President," is not sufficiently dissected as a tactic within the text. Other scholars such as John Norton Moore and Robert Turner give much credence to this provision as a rationale for presidential preeminence in military endeavors. Fisher similarly falls short in developing post-World War II doctrines as tactics for executive augmentation of war power, though the earlier Monroe Doctrine and (Theodore) Roosevelt Corollary are mentioned. A second drawback of the book is the dearth of military history scholarship which could have substantiated and supplemented findings. In reviewing the Mexican War, Fisher observes that the president's commander-in-chief power "is at its low point when there is no standing army because a President cannot deploy troops until Congress raises them. But when a standing army does exist, ready to move at the President's command, the balance of power can shift decisively" (p. 30). It is precisely that fact, along with advances in technology and the growth of a large intelligence, national security, and defense structure, that allowed presidents to gain the upper hand in post-1945 military missions. Although the latter bureaucratic establishment is somewhat reviewed in Chapter 8 on covert operations, the ramifications of all of the aforementioned military history characteristics could be discussed in greater detail. Overall, this seminal text will set the contemporary standard for investigating the development of and continuing disputes over institutional parameters of the war power. Though written for an academic audience, it is hoped that the book will enjoy wider readership among elected officials, jurists, and the public, who must share respectively in policy decisions, legal interpretations, and informed judgements about the authority of the American government to wage war. References: Lehman, Charles. 1992. MAKING WAR: THE 200-YEAR-OLD BATTLE BETWEEN THE PRESIDENT AND CONGRESS OVER HOW AMERICANS GO TO WAR. 1992 (New York, Charles Scribner's Sons. Stern, Gary and Morton Halperin, 1994. THE U.S. CONSTITUTION AND THE POWER TO GO TO WAR: HISTORICAL AND CURRENT PERSPECTIVES. Westport, CT: Greenwood Press.
From the Publisher

"An authoritative book on an issue that goes to the heart of what the Constitution says and whether it still has a controlling influence on our national life."

New York Times Book Review

"An intelligent and convincing contribution to the debate over our form of government."

Washington Post

"Should be read by all Americans interested in the political well-being of their country."

Presidential Studies Quarterly

"An essential volume for all libraries."

Choice

"Should be required reading on Capitol Hill and in the White House as well as in classrooms."

Political Science Quarterly

"Fisher's fundamental point is compelling: the power to commence war was given to the Congress under the Constitution and should remain there."

Yale Law Review

"As close to being indispensable as anything published in this field."

Congressional Quarterly

"Trenchant, provocative, and powerful, with lean and lucid prose."

American Political Science Review

"This book gets better with every edition."--Mark J. Rozell, author of Executive Privilege

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Product Details

  • ISBN-13: 9780700619306
  • Publisher: University Press of Kansas
  • Publication date: 9/30/2013
  • Edition description: Revised
  • Pages: 400
  • Sales rank: 1,304,933
  • Product dimensions: 6.10 (w) x 9.30 (h) x 1.20 (d)

Meet the Author


Louis Fisher, recently retired as Scholar in Residence at the Constitution Project, previously worked at the Library of Congress as Senior Specialist in Separation of Powers (Congressional Research Service) and as Specialist in Constitutional Law (Law Library). His many books include The Constitution and 9/11: Recurring Threats to America's Freedoms; Military Tribunals and Presidential Power, which won the American Political Science Association's Richard E. Neustadt Award; In the Name of National Security: Unchecked Presidential Power and the Reynolds Case; and Constitutional Conflicts between Congress and the President. In 2012, he received the APSA's Hubert H. Humphrey Award for notable public service by a political scientist.
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Table of Contents

Preface
Note on citations
1 The constitutional framework
2 Precedents from 1789 to 1900 17
3 America steps out : 1900-1945 56
4 The UN charter and Korea 81
5 Taking stock : 1951-1964 105
6 Vietnam and the War Powers Resolution 128
7 Military initiatives from Ford to Bush I 154
8 Military actions by Clinton 175
9 George W. Bush 202
10 Covert operations 236
11 Restoring checks and balances 261
App. A Framers' debate on the war power 283
App. B Constitutional allocation of foreign affairs and the war power 285
App. C UN Participation Act of 1945 287
App. D 1949 amendments to UN Participation Act 288
App. E War Powers Resolution of 1973 290
Suggested readings 295
Index of cases 311
Subject index 313
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  • Posted March 7, 2014

    I Also Recommend:

    An Authoritative Text

    This book provides a valuable adjunct to more general volumes on the broader subject of Presidential "power moves" (e.g., Arthur Schlesinger's "The Imperial Presidency"), as well as providing a counterpoint to advocates of an all-powerful "Unitary Executive," like John Yoo.

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