Has precedent eroded Congress’s war powers? James Lebovic looks to the various standards of social-scientific inquiry to suggest that an exclusive focus on legal analysis has unnecessarily limited the war powers debate in recent decades.
Lebovic finds that even though Congress appears to defer to the President based on war powers precedent, it is often politics—and not legal precedent—that explains Congress’s deference.
Lebovic finds that assessing rule-based, fact-based, and action-based precedents through social-scientific standards shows that Congress often defers to the President because of the political process. This social-scientific approach stands in contrast to prevalent legal analysis—and Lebovic concludes that today’s practitioners would do well to consider it as they assess the boundaries of congressional war powers.
Shortly after Nazi Germany invaded Poland in 1939, President Franklin D. Roosevelt issued a proclamation of a “limited” national emergency. This proclamation cited no statutory or inherent authority. Alden Fletcher looks to the historical record to suggest Roosevelt’s proclamation was relying on ambiguous statutes that provided for executive power to declare emergencies or take emergency action.
Fletcher finds that even as Roosevelt acted independently to issue an emergency declaration, his administration recognized that such a declaration could be regulated by Congress or reviewed by the courts. Indeed, Fletcher finds historical memos, papers, and briefings showing that the theories advanced by Roosevelt’s Justice Department implicitly accepted a flexible doctrine in part because inter-branch checks were presumed to remain open. This historic approach stands in contrast to today’s Executive Branch practice—and Fletcher concludes that today’s practitioners would do well to remember it.
Today, writes Ben Daus-Haberle, the Militia Clauses of the Constitution lead a curious double life. The Second Amendment’s preamble stars in gun rights debates, but when the conversation shifts to the War Powers, these Clauses drop almost entirely from view. The result is a War Powers literature strikingly silent about the Militia Clauses. Yet the founders regarded the militia as a key military resource. To them, the militia was the “great Bulwark of our Liberties and independence,” and they structured the Constitution with this bulwark in mind.
This paper returns the Militia Clauses to view to explore how they shaped the War Powers. While scholars have occasionally considered the clauses in isolation, the full dimensions of this regime only become visible when the clauses are examined intratextually—that is, in dialogue with each other and the rest of the constitutional text.
Doing so both illuminates the original functioning of the War Powers and prevents misunderstandings that can arise when individual clauses are considered in isolation.