Introduction

From President Truman’s initiation of war against North Korea in June 1950, presidents have exceeded constitutional and statutory authority in exercising the war power. Instead of coming to Congress for a declaration of war or statutory support, they sought “authority” from the U.N. Security Council or NATO allies. The precedent established by Truman was followed by Bill Clinton and Barack Obama. Through their initiatives, they violated the rule of law, the principle of self-government, and the system of checks and balances. The U.S. Constitution expressly rejected the British model that placed with the Executive exclusive authority over all of external affairs, including taking the country to a state of war. The Framers assigned that power solely to Congress.

A lawsuit filed in 2016, Smith v. Obama, asked a federal district court to decide whether President Obama may engage in war against the Islamic State without receiving express authority from Congress. Although Captain Smith and his attorneys, followed by the Justice Department, offered a range of constitutional analysis, the district court dismissed the lawsuit on grounds of standing and the political question doctrine. That issue, analyzed later in the article, is now before the D.C. Circuit (Fisher 2017a).

How the Framers Broke with the British Model

In 1690, John Locke referred to three branches of government: legislative, executive, and federative. By the latter he meant “the power of war and peace, leagues and alliances, and all the transactions with all persons and communities without the commonwealth.” The powers of executive and federative, he said, “are always almost united” (Locke 1690, Book II, Ch. XII, §§ 146-47). He assigned the federative power to the executive because it “is not necessary” that the legislative branch “should be always in being; but absolutely necessary that the executive power should, because there is not always need of new laws to be made, but always need of execution of the laws that are made” (ibid., § 153).

In 1765, the British jurist William Blackstone agreed with Locke’s decision to place all of external affairs with the executive. In his chapter on the king’s prerogative, Blackstone said…


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