Debating War Powers

Debates over presidential war powers are as old as the making of the Constitution itself.  The Founders debated the issue in the summer of 1787, on Friday, August 17th.  Even then, the issue could provoke fierce moral outrage.  Elbridge Gerry, a delegate from Massachusetts, remarked in astonishment during the argument that he had “never expected to hear, in a republic, a motion to empower the Executive alone to declare war.”  The Founders voted instead to vest the authority in Congress, but even so, Gerry was not satisfied and ultimately refused to sign the document.

Those who did sign the Constitution and especially those who defended it during the ratification debates in 1787 and 1788 often proved themselves to be quite pragmatic (and thus elusive) about this and other related issues.  James Madison actually argued in Federalist No. 41 that when it comes to national security, “The means of security can only be regulated by the means and the danger of attack.”  But Madison still believed that forward-leaning attitude could be reconciled with sound republican principles.

Modern-day opinion writers have continued to try to split these differences  –but the arguments have been no less fierce.  Bush Administration and constitutional scholar John Yoo argued for an expansive reading of war powers in the post 9/11 era in his 2006 op-ed for the New York Times, How the Presidency Regained Its Balance.”  Yoo’s defense of torture and other claims about presidential power have provoked bitter denunciations, however, especially from historians like Bruce Ackerman.  Yet Ackerman, in particular, has not limited his fire to Republican administrations.  In 2014, the noted Yale scholar blasted President Obama for his sometimes conflicted behavior as commander in chief, arguing in the New York Times op-ed pages against what he termed, “Obama’s Betrayal of the Constitution.”  Prof. Pinsker tried to forge what he considered to be a common sense alternative, based on Lincoln’s example, in a 2013 op-ed for USA Today, “Obama Fails Lincoln Lesson on Syria.”

As the next administration begins and as the challenges of a troubled world continue, the debate endures.  What is your position?


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