In my post on Congress’ power to declare a limited war, I noted that the leading scholarship in support of Congress’ power is by Saikrishna Prakash (here).  I should also have added as well the outstanding two-part article “The Commander in Chief at the Lowest Ebb” by David Barron and Martin Lederman in the Harvard Law Review (121 Harv. L. Rev. 689 (2008) and 121 Harv. L. Rev. 941 (2008); part 1 is here, part 2 is here).

From the abstract of part 1:

Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent” power as Commander in Chief to act in the absence of congressional authorization. In this Article, Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.”

Contrary to the traditional assumption that Congress has ceded the field to the President when it comes to war, the Commander in Chief often operates in a legal environment instinct with legislatively imposed limitations. In the present context, the Bush Administration has been faced with a number of statutes that clearly conflict with its preferred means of prosecuting military conflicts. The Administration’s response, based on an assertion of preclusive executive war powers, has been to claim the constitutional authority to disregard many of these congressional commands.

This Article is the first of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived. Professors Barron and Lederman demonstrate that, notwithstanding recent attempts to yoke the defense of executive defiance in wartime to original understandings, there is surprisingly little historical evidence supporting the notion that the conduct of military campaigns is beyond legislative control. Thus stripped of its assumed roots in a supposedly longstanding tradition, and considered in light of the long pattern of executive acceptance of constraining statutes, the Administration’s recent assertion of preclusive war powers is revealed as a radical attempt to remake the constitutional law of war powers.

From the abstract of Part 2:

In the companion Article, Professors Barron and Lederman described the structural forces responsible for this shift in the ground of debate and demonstrated that evidence from the Founding era does not reveal an original understanding that the Commander in Chief enjoyed preclusive authority over matters pertaining to warmaking. In this Article, they move the story forward and systematically examine how the three branches have actually considered and treated this issue from 1789 to the present day. They examine those cases in which the President has asserted or relied upon a claim of preclusive war powers. They also review the discussions of this issue that have appeared in Supreme Court opinions; in major debates on the floor of Congress; and in the leading constitutional and war powers treatises, articles, and books of the past two centuries.

This historical review shows that the view embraced by most contemporary war powers scholars — namely, that our constitutional tradition has long established that the Commander in Chief enjoys some substantive powers that are preclusive of congressional control with respect to the command of forces and the conduct of campaigns — is unwarranted. In fact, Congress has been an active participant in setting the terms of battle and the conduct and composition of the armed forces and militia more generally, while the Executive (at least until recently) generally has accepted such legislative constraints as legitimate. Although history is not dispositive of the constitutional question, legislators and executive branch actors should not abandon two hundred years of historical practice too hastily, and should resist the new and troubling claim that the Executive is entitled to unfettered discretion in the conduct of war.

Part VI of the first article (pp. 767-800) contains the core textualist and originalist arguments.  Part II A-E (pp. 951-980) of the second article covers post-ratification practice through the War of 1812.

NOTE: This article was originally posted at The Originalism Blog, “The Blog of the Center for the Study of Constitutional Originalism at the University of San Diego School of Law,” and is reposted here with permission from the author.

Michael D. Ramsey
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