The Dog of War as a Puppy: The Constitutional Power to Initiate Hostilities as Answered by the Framing

20 Pages Posted: 23 May 2007

Abstract

The conflict between the President and Congress over Constitutional War Powers, and especially the power of the President to initiate hostilities without authorization from Congress, is certainly not new territory. Legal scholars have devoted countless pages to examining it from all angles, with various conclusions. Congress has held hearings and made proclamations regarding its sole possession of the power to initiate hostilities, while the Executive branch has just as resolutely proclaimed its ability to initiate hostilities without congressional approval. Courts, meanwhile, have found numerous justifications for not involving themselves in the controversy. In the latter part of the Twentieth and the first part of the Twenty-First Century, this conflict has generally reached a state of detente, wherein the President maintains the official stance that no congressional authority is required to initiate hostilities, but eventually seeks such authority, which Congress then provides. Neither the President nor Congress seem eager to press for a firm resolution of this issue in the court system, and the court system seems equally unwilling to make such a resolution.

This article seeks to answer one of the questions regarding the war powers of the President and Congress: Whether the President has the power, as recent administrations have claimed, to initiate hostilities without the authorization of Congress. An analysis of the language of the Constitution and the intent of the Framers provides a clear answer: that Congress is the sole branch capable of initiating hostilities, and that the power of the Executive is limited to authorizing the use of force only in the repelling of an attack.

Keywords: Constitutional Law, War Powers, Virginia Plan

Suggested Citation

Jackson, Jeffrey D., The Dog of War as a Puppy: The Constitutional Power to Initiate Hostilities as Answered by the Framing. Georgetown Journal of Law & Public Policy, Vol. 1, pp. 361-380, 2003, Available at SSRN: https://ssrn.com/abstract=988083

Jeffrey D. Jackson (Contact Author)

Washburn University - School of Law ( email )

1700 College Avenue
Topeka, KS 66621
United States

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