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 Louis Fisher's theme is that the president's proclivity for making war has superseded Congress's designated power for declaring war.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
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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
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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
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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.
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.
"This important book deserves the widest possible readership and should be compulsory reading for every Congressman and President. A tour de force."—Leonard W. Levy, editor-in-chief, Encyclopedia of the American Constitution "A lucid and thoughtful work by the nation’s top authority on the separation of powers doctrine. Fisher gives a balanced account of differences on this contentious topic but pulls no punches in presenting his own views. This book will be cited for years to come. It's a classic."—Michael J. Glennon, author of Constitutional Diplomacy and former legal counsel to the U.S. Senate Foreign Relations Committee "No one knows more about this complex issue than Louis Fisher. Those who care about the preservation of constitutional government in the United States will want to study this careful, sensible, and deeply disturbing book."—Donald L. Robinson, author of "To the Best of My Ability": The Presidency and the Constitution "This volume is simply indispensable to anyone who cares about how this nation resorts to the use of force abroad. With great insight, Fisher explores the dangerous drift toward excessive presidential discretion over war-making."—Loch K. Johnson, author of America as a World Power: Foreign Policy in a Constitutional Framework "This impressive volume displays the great sweep of Fisher’s knowledge and historical understanding in the ever-churning war powers field. It’s both a necessary addition to the constitutional bookshelf and a fascinating read in its own right."—Harold Hongju Koh, author of The National Security Constitution: Sharing Power after the Iran-Contra Affair
"An intelligent and convincing contribution to the debate over our form of government."
"Should be read by all Americans interested in the political well-being of their country."
Presidential Studies Quarterly
"An essential volume for all libraries."
"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."
"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