Constitutional Reform Goes to War: Some Lessons from the United States

Abstract

Based upon analysis of American war powers jurisprudence and British constitutional law, this article argues that the US President and the British Crown actually exercise a similar scope of discretion in deploying military forces into armed conflict, notwithstanding the formal differences between congressional authorisation and the prerogative as sources of such executive power. This discretion is essentially a political question in both countries, resistant to judicial review. As a result, although any future statutory reform limiting the Crown's war powers ultimately will depend upon political implementation by Parliament and especially legal interpretation in the courts, it will likely pose little additional restraint on Government's conflict decisions.

Keywords: Crown, prerogative, war powers, discretion, conflict decisions, president, War Powers Act, political question, constitutional reform