Misunderstanding the Power to Declare War: Arthur Schlesinger, John Yoo, and the War Power Resolution

13 Pages Posted: 15 Jul 2012 Last revised: 6 Sep 2013

See all articles by Brien Hallett

Brien Hallett

Matsunaga Institute for Peace

Date Written: 2012

Abstract

The power "to declare war" is misunderstood. Some argue it has been usurped by an imperial presidency; others that the "original intent" was for "the collective judgment of both the Congress and the President will apply," while still others suggest the power of the purse is the true restraint on presidential war making.

This paper evaluates the three theories, and, then, reevaluates the incapacity of Congress "to declare war" in terms of 1) lack of political will, 2) organizational incapacity, and 3) inappropriate function. Once the incapacity of the large, bicameral Congress is understood as a major defect in the Constitution, the paper turns to locating small, unicameral models that do posses the capacity "to declare war." It finds these in the procedures used and the texts produced by the Second Continental Congress and the UN Security Council. The Security Council procedures and texts for the Korean War are examined in detail.

Keywords: Presidential war powers, Congressional war power, power to declare war, Constitution, Article I section 8, imperial presidency, John Yoo, Arthur Schlesinger, 1973 War Powers Resolution

Suggested Citation

Hallett, Brien, Misunderstanding the Power to Declare War: Arthur Schlesinger, John Yoo, and the War Power Resolution (2012). Available at SSRN: https://ssrn.com/abstract=2107468 or http://dx.doi.org/10.2139/ssrn.2107468

Brien Hallett (Contact Author)

Matsunaga Institute for Peace ( email )

Honolulu, HI 96822
United States
808-956-4236 (Phone)
808-956-0950 (Fax)

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