The President's Power to Respond to Attacks
Cornell Law Review, Vol. 93, p. 169, 2007
28 Pages Posted: 20 Aug 2008
The U.S. Constitution famously gives the President the "executive Power" while reserving to Congress the power to "declare War." Professor Saikrishna Prakash and I have previously argued, in contributions to the Yale Law Journal and the Minnesota Law Review, that the President's "executive Power" includes foreign affairs powers that are not assigned to other branches by the Constitution. In a recent article in the Cornell Law Review, Professor Prakash contends that under this view of the Constitution, the President cannot initiate armed conflict and can respond to attacks on the United States only with limited defensive force.
This article in response agrees with the first part of Professor Prakash's conclusion but disputes the second part. It argues that when an armed attack is made on the United States by a foreign enemy, war is "declared" by the enemy's action. As a result, the President's response to the attack does not "declare war" and so does not implicate Congress' "declaring" power. Because the response power thus is not specifically assigned to another branch by the Constitution, it remains within the President's "executive Power" under Article II, Section 1. Unlike Professor Prakash, this article finds no basis in the Constitution's text or original understanding for distinguishing between defensive responses and offensive responses in terms of presidential power. The contrary position depends upon a conclusion that offensive responses "declare" war while defensive responses do not, but nothing in the common eighteenth-century understanding of declaring war supports that distinction, and leading framers and post-ratification leaders took the broader view of presidential response power.
Keywords: war, executive, declare, president
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