War Powers

War Powers: The Politics of Constitutional Authority

Mariah Zeisberg
Copyright Date: 2013
Pages: 256
Stable URL: http://www.jstor.org/stable/j.ctt2854xj
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  • Book Info
    War Powers
    Book Description:

    Armed interventions in Libya, Haiti, Iraq, Vietnam, and Korea challenged the US president and Congress with a core question of constitutional interpretation: does the president, or Congress, have constitutional authority to take the country to war?War Powersargues that the Constitution doesn't offer a single legal answer to that question. But its structure and values indicate a vision of a well-functioning constitutional politics, one that enables the branches of government themselves to generate good answers to this question for the circumstances of their own times.

    Mariah Zeisberg shows that what matters is not that the branches enact the same constitutional settlement for all conditions, but instead how well they bring their distinctive governing capacities to bear on their interpretive work in context. Because the branches legitimately approach constitutional questions in different ways, interpretive conflicts between them can sometimes indicate a successful rather than deficient interpretive politics. Zeisberg argues for a set of distinctive constitutional standards for evaluating the branches and their relationship to one another, and she demonstrates how observers and officials can use those standards to evaluate the branches' constitutional politics. With cases ranging from the Mexican War and World War II to the Cold War, Cuban Missile Crisis, and Iran-Contra scandal,War Powersreinterprets central controversies of war powers scholarship and advances a new way of evaluating the constitutional behavior of officials outside of the judiciary.

    eISBN: 978-1-4008-4677-1
    Subjects: Political Science, Law

Table of Contents

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  1. Front Matter (pp. [i]-[vi])
  2. Table of Contents (pp. [vii]-[x])

    In early 2012 President Quaddafi’s suppression of popular uprisings in Libya began to arouse concern domestically and abroad. Attention began to focus on what, if any, the US response would be. By late February the UN Security Council adopted a resolution expressing “grave concern” about Libya, and the US Senate unanimously approved a resolution calling for the Security Council to impose a Libyan no-fly zone.¹ By March, the Security Council had authorized member states to use force to protect Libyan civilians, and the House simmered with dispute about the president’s constitutional war authority.² on March 18 President Obama deployed troops...

  4. Chapter 2 PRESIDENTIAL DISCRETION AND THE PATH TO WAR: The Mexican War and World War II (pp. 54-91)

    Since the founding, legislators have expressed anxiety that the presidency would use its structural independence and discretionary powers to informally usurp Congress’s war authority. The president, in carrying out duties like diplomacy, public speeches, and treaty negotiation, can make war more likely. The executive branch’s combination of structural independence and discretionary power was at the root of the first postratification exchange on war powers. In the Pacificus-Helvidius debate, officials considered whether President Washington’s speech about a treaty with France unconstitutionally undermined Congress’s war authority.¹ Both Presidents James Polk and Franklin Roosevelt were later challenged for usurping Congress’s war power when...

  5. Chapter 3 “UNITING OUR VOICE AT THE WATER’S EDGE”: Legislative Authority in the Cold War and Roosevelt Corollary (pp. 92-145)

    A central controversy of war powers today is whether, and under what conditions, the president may directly engage in war without particular legislative authorization. Pro-Congress scholars read Congress’s ability to “declare war” as an exclusive power to authorize hostilities, implying that independent presidential war is unconstitutional. This view met a profound challenge in the Korean War, commonly read as the “single most important precedent” for the displacement of Congress in the war powers system.¹ Many see legislative acquiescence to Truman’s deployment of troops as a harbinger of constitutional degradation, a turning point in which fast-moving events, widespread fear, and opportunism...

  6. Chapter 4 DEFENSIVE WAR: The Cuban Missile Crisis and Cambodian Incursion (pp. 146-183)

    Consider two independent acts of war of two separate presidential administrations: the 1962 Cuban Missile Crisis of the Kennedy administration, and Nixon’s interventions in Cambodia. In the fall of 1962 Kennedy had assured Congress there were no offensive missiles in Cuba, consistent with statements he was receiving from the Soviets and from personal communication from Khrushchev, and consistent with the beliefs of US intelligence. When it became apparent that missiles were being installed, Kennedy kept quiet, notifying allies before he notified the public or Congress. He kept the situation secret while preparing for nuclear war and actually initiating an act...

  7. Chapter 5 LEGISLATIVE INVESTIGATIONS AS WAR POWER: The Senate Munitions Investigation and Iran-Contra (pp. 184-221)

    The relational conception’s emphasis on war as a political question leads to scrutiny of the processes by which interbranch understandings of war, defense, security, and authority are constructed. Through what processes do the branches form judgments about the security and constitutional controversies of the moment? One important tool Congress uses to hone its judgments and confront those of the president is legislative investigations. While investigations serve many functions, their capacity to serve as a site for the development of an informed institutional judgment is highly relevant to the work the relational conception assigns the branches. Scandals about the president’s use...


    The pattern that the Constitution sets in its war politics is not unique. The Constitution does not draw clear boundaries between legislative and executive powers in a variety of policy areas.¹ Many of the Constitution’s substantive terms are also underdeterminate; and it protects rights whose provisions, in some circumstances, conflict with one another (for example, the right to a fair trial can conflict with guaranteeing a free press).² From impeachment, to the debt crisis, to appointments, to governance overseas, a vast universe of constitutional problems is handled not through judicial supervision or adherence to determinate text but rather as a...

  9. Acknowledgments (pp. 263-264)
  10. Index (pp. 265-276)

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