Delegating War Powers
Michael Ramsey
My new article Delegating War Powers (Southern California Law Review, vol. 96 (forthcoming 2023)) (82 pages) (with Matthew C. Waxman of Columbia Law School) is now on SSRN. Here is the abstract:
Academic scholarship and political commentary endlessly debate the President’s independent constitutional power to start wars. And yet, every major U.S. war in the last sixty years was fought pursuant to war-initiation power that Congress gave to the President in the form of authorizations for the use of military force. As a practical matter, the central constitutional question of modern war initiation is not the President’s independent war power; it is Congress’s ability to delegate its war power to the President.
It was not until quite late in American history that the practice of war power delegation became well accepted as a domestic law basis for starting wars. This Article examines the development of war power delegations from the Founding era to the present to identify when and how war power delegations became a broadly accepted practice. As this Article shows, the history of war power delegation does not provide strong support for either of two common but opposite positions: that war power, as a branch of foreign affairs powers, is special in ways that make it exceptionally delegable; or that it is special in ways that make it uniquely nondelegable. More broadly, that record counsels against treating “foreign affairs delegations” as a single category, and it reveals that constitutional questions of how Congress exercises war power are as significant as whether it does.
This isn't a typical constitutional law law review article in that we don't argue for a particular modern interpretation or original meaning of the Constitution. Instead our goal is to describe what happened with Congress' approach to war initiation/authorization from the founding to the present, without trying to draw a definite interpretive conclusion from it. To some extent this reflects my wider ambivalence about the current debates over nondelegation. We hope it's a useful contribution to those debates, though, in the sense that we need first to understand what actually happened before we can say what it means for constitutional meaning.