Ending Perpetual War? Constitutional War Termination Powers and the Conflict Against Al Qaeda

80 Pages Posted: 26 Apr 2014

Date Written: April 24, 2014

Abstract

This Article presents a framework for interpreting the constitutional war termination powers of Congress and the President and applies this framework to questions involving how and when the war against Al Qaeda and associated forces could end. Although constitutional theory and practice suggest the validity of congressional actions to initiate war, the issue of Congress’s constitutional role in ending war has received little attention in scholarly debates. Theoretically, this Article contends that terminating war without meaningful cooperation between the President and Congress generates tension with the principle of the separation of powers underpinning the U.S. constitutional system, with the Framers’ division of the treaty-making authority, and with the values they enshrine. Practically, this Article suggests that although the participation of both Congress and the President in the war termination process may make it more difficult to end a war, such cooperative political branch action ensures greater transparency and accountability in this constitutional process.

This Article also examines normative questions about the role of the President and Congress in exercising their respective war termination powers, and argues that the treaty-making process represents an approach to war termination that best reflects the constitutional values of the interdependence of the political branches, while checking interbranch rivalry and preserving the constitutional and foreign relations prerogatives of Congress and the President.

Keywords: War, congressional authorization, presidential authority, AUMF

Suggested Citation

Simon, David A., Ending Perpetual War? Constitutional War Termination Powers and the Conflict Against Al Qaeda (April 24, 2014). Pepperdine Law Review, Vol. 41, No. 685, 2014, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2429119

David A. Simon (Contact Author)

Independent ( email )

No Address Available

Register to save articles to
your library

Register

Paper statistics

Downloads
189
rank
153,167
Abstract Views
880
PlumX Metrics