Misreading the History of Presidential War Power, 1789-1860

48 Pages Posted: 19 Nov 2020

See all articles by Aaron Haviland

Aaron Haviland

affiliation not provided to SSRN

Date Written: October 2, 2020

Abstract

The Office of Legal Counsel (OLC) justifies its expansive view of presidential war power by citing long lists of American military conflicts. But OLC misinterprets these events. This article surveys every U.S. conflict between 1789 and 1860 and evaluates whether the conflict was authorized by Congress, a limited defensive measure under Article II, or possibly unconstitutional. Viewed in its entirety, early American history does not support the OLC position. This article calls for a more restrained approach to war power that is based on the original meaning of the Declare War Clause, informed by a more accurate interpretation of history.

Suggested Citation

Haviland, Aaron, Misreading the History of Presidential War Power, 1789-1860 (October 2, 2020). Texas Review of Law & Politics, Vol. 24, No. 3, 2020, Available at SSRN: https://ssrn.com/abstract=3703408

Aaron Haviland (Contact Author)

affiliation not provided to SSRN

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