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12/17/2011

Stephen Griffin on War Powers
Michael Ramsey

At Balkinization, Stephen Griffin begins a series of guest posts based on his forthcoming war powers book:  How to Think About War Powers, Pt. 1.

Professor Griffin's book is, I take it, not mainly originalist, but his opening post has some discussion of original meaning, and includes some kind words about my book The Constitution's Text in Foreign Affairs (which I very much appreciate) as well as well-deserved praise for the work of the great scholar of founding-era foreign affairs power, William Casto. 

In discussing the original meaning of executive power in foreign affairs, I would also highlight the contributions of Professor Saikrishna Prakash, who has greatly influenced my thinking on the subject and has done as much as anyone in the modern era to explore the interaction between executive power and war power.

The starting point all of us share, it appears, is that the President's Article II, Section 1 "executive Power" includes, to some extent, a general power over foreign affairs.  That power, however, is qualified by grants of specific foreign affairs powers to other branches, such as the grant to Congress of the power "to declare War."  And among those who share the same starting point, there may be sharp disagreements as to how far the specific grants limit the general grant.  But it's good to see some degree of consensus on the basic framework.