Debating War Powers: Battles in the Clinton and Obama Administrations

THE WAR OVER WAR POWERS began soon after the ratification of the Constitution and shows little sign of resolution. Legislative and executive supremacists argue about who can initiate hostilities and what should happen after the initiation of hostilities. Legislative supremacists claim that presidents have usurped congressional power, while executive supremacists claim that presidents merely assert their formal powers when they initiate operations unilaterally. Each side marshals an impressive array of historical facts, eighteenth-century definitions, choice quotes from the Framers, judicial decisions, and selected constitutional clauses to argue its case. Each school claims to have the definitive reading of the distribution of powers. The president and Congress have battled over these questions alongside scholars. Since World War II, presidents have regularly asserted their ability to initiate hostilities unilaterally, often citing international agreements or United Nations (UN) Security Council resolutions to support their actions. When called upon, the Office of Legal Counsel (OLC) provides a more thorough constitutional justification. Meanwhile, legislative supremacists and members of Congress claim the legislature must initiate the use of force without producing arguments or asserting powers that restrain presidents.