The Separation and Overlap of War and Military Powers

88 Pages Posted: 22 Jan 2010 Last revised: 27 Nov 2023

See all articles by Saikrishna Prakash

Saikrishna Prakash

University of Virginia School of Law

Date Written: January 11, 2010

Abstract

Absent from war-powers scholarship is an account of when war and military powers separate and when they overlap. Making arguments sounding in text, structure, and history, this Article supplies such a theory. Numerous English statutes and practices help identify the meaning of the Constitution’s war and military powers. Additional insights come from the Revolutionary War and the half-dozen or so wars fought in the three decades after 1789. In those early years, Congress micromanaged military and wartime operations. Presidents (and their advisors) acquiesced to these congressional assertions of power, expressing rather narrow understandings of presidential power over war and military matters. Using early history as a guide, this Article argues that the Constitution grants Congress complete control over all war and military matters. Some authorities, such as the powers to declare war and establish a system of military justice, rest exclusively with Congress. Military authorities not granted exclusively to Congress vest concurrently with the President and Congress, meaning that either can exercise such powers. In this area of overlap, where congressional statutes conflict with executive orders, the former always trump the latter. Tempering Congress’s ability to micromanage military operations are significant institutional and constitutional constraints that typically make it impossible for Congress to move military assets on a far-off battlefield. In sum, the Constitution creates a powerful Commander in Chief who may direct military operations in a host of ways but who nonetheless lacks any exclusive military powers and is thus subject to congressional direction in all war and military matters.

Keywords: Commander in Chief, Capture Power, Government and Regulation, Declare War, Executive Power, Armed Forces, Torture, Prisoners, Uses of Force, Make War

Suggested Citation

Prakash, Saikrishna, The Separation and Overlap of War and Military Powers (January 11, 2010). Texas Law Review, Vol. 87, 2008, Available at SSRN: https://ssrn.com/abstract=1534735

Saikrishna Prakash (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
386
Abstract Views
2,666
Rank
151,252
PlumX Metrics