Approaches toward reconciling these provisions

t Evidence shows that framers believed President should be able to act to “repel sudden attacks.” But in other contexts, President could not initiate “war” without a congressional declaration.

t In modern circumstances, notions of “repel sudden attack” and “war” mean something different from what they meant for framers. Here are some different views on this issue:

n Underlying constitutional language is long-range purpose authorizing President to protect Americans from external force in an emergency. Given increasing mobility of weapons, President may sometimes conclude that offense is the best defense. Though his characterization may be debatable, President must necessarily be accorded a broad discretion. (Ratner)

n Enemy actions today not amounting to an attack can more obviously threaten U.S. national security than when USC was adopted. Thus, a sound functionalist interpretation of President’s power to “repel sudden attacks” should probably permit him to take any military action necessary to preserve our national security when there is not time to consult Congress – but subject to stipulation that President come to Congress for approval as soon as possible and terminate military action if Congress does not provide approval. (Ely)

n Historical development of self-defense rationale would limit independent presidential power to engage in war to certain cases involving direct attacks against U.S. But there may be some cases where violence abroad poses a threat so inimical to U.S. security that defense of U.S. itself is immediately involved. How do we decide which cases fall into that category? Should courts have a role here?

n Framers recognized that not every involvement of armed forces can be a “war” requiring congressional action. Meaning of “war” must be determined with reference to purpose of war-declaring clause: to safeguard U.S. against unchecked executive decisions to commit country to a trial of force. Two reasons for requiring Congress (not President) to approval declaration of war:

(1) Such decision involves risk of great economic/physical sacrifice.

(2) Very act of using force involves moral and legal consequences significant enough to require popular approval.

Date: 2015-01-02; view: 701