Vol. 5 No. 6 (June, 1995) pp. 197-200
PRESIDENTIAL WAR POWER by Louis Fisher. Lawrence: University
Press of Kansas, 1995. Pp. 248. Cloth $29.95. Paper $14.95.
Reviewed by Samuel B. Hoff, Department of History and Political
Science, Delaware State University
Perhaps no other area of shared authority between the American
president and Congress is as conflictive yet crucial to the
nation's well being as the constitutional power to engage in war.
Louis Fisher's theme is that the president's proclivity for
making war has superseded Congress's designated power for
declaring war. As a result, the post-World War II period created
a climate in which Presidents have regularly breached
constitutional principles and democratic values" (Preface,
page xi). Employing a historical approach and case study format,
Fisher traces the etiology and evolution of presidential war
power over the two centuries of United States constitutional
government, examines the manner by which Congress has sought to
constrain presidential aggrandizement in military endeavors,
probes how the courts have interpreted statutes and disputes
arising from armed conflict involving American forces, and
recommends what procedures should be pursued in order to return
war authority to its proper constitutional place.
Chapter 1 elucidates on how the framers of an independent
American government, with the experience of abuses by the British
monarch during the colonial period and the revolution behind
them, "deliberately transferred the power to initiate war
from the executive to the legislature" (p. 1). The
architects of the Constitution likewise broke with British and
European traditions by not allowing the president to create
military offices, vesting the power of the purse in Congress, and
establishing the principle that only the legislature could
declare war.
Chapter 2 details incidents from 1789 to 1900 when the executive
branch steadily "claimed for the President the power to
initiate war and determine its magnitude and duration" (p.
13), including skirmishes with Indian tribes, the 1794 Whiskey
Rebellion, actions taken against the Barbary powers, the War of
1812, the Mexican War, the Civil War, and the Spanish-American
War. Chapter 3, covering the period between 1900 and 1945,
delineates numerous American military interventions in the early
part of the twentieth century, particularly those in Central and
south America, and also explores circumstances of World War I,
the 1930s, and World War II. Chapter 4 tracks the creation of the
United Nations and how reliance on it by President Harry Truman
during the Korean conflict precipitated an extensive, extended
debate in Congress.
Chapter 5 analyzes the philosophy of President Dwight Eisenhower
on the chief executive's potency in military affairs. His belief
in collective decision making, interbranch cooperation, and
popular backing for armed commitments abroad is contrasted with
the views of President John Kennedy, who "was prepared to
act during the Cuban missile crisis solely on his own
constitutional authority" (p 111). Chapter 6 relays the
policies and actions of the Lyndon Johnson and Richard Nixon
administrations during the Vietnam War together with legislative
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reactions culminating in the 1973 War Powers Resolution. Chapter
7 details thirteen military missions occurring between the
presidencies of Gerald Ford and Bill Clinton and how they were
regarded by Congress and the courts.
In Chapter 8, the author describes the history of covert
operations and how increases in secret spending and augmented
executive branch management of intelligence and national security
matters led to abuses, efforts by Congress to control covert
activities, countermeasures by the Reagan administration causing
the Iran-Contra scandal, and finally to another series of
legislative reforms. According to Fisher, "the temptation of
executive officials to exceed constitutional limits in covert
operations is ever-present, always pushing, and in constant need
of checks from other institutions and the public" (p. 184).
In the concluding chapter, Fisher adeptly responds to several
propositions which imply that the president should bear primary
responsibility for war-related actions. For instance, he claims
that in unleashing the nation's nuclear arsenal, a distinction
must be drawn between first use and retaliatory second strikes,
of which only the latter is authorized by the president's duty to
repel sudden attacks. Second, he counters the position that
defensive wars could be fought by the United States based on
mutual security arrangements before constitutional procedures
would be followed. Third, he dismisses the argument that the more
than two hundred precedents of American military expeditions
abroad furnish modern justification for unilateral presidential
forays, holding that international law and regional treaties
outlaw interventions of decades past. Fourth, Fisher disputes one
of the reasons cited by the Bush White House for the 1989
invasion of Panama -- that of seeking to stop illicit
international drug trafficking -- because it would mean that the
United States could then attack friendly, sovereign nations for
the same goal. Fifth, he asserts that legitimacy should not be
conferred on previous illegitimate military initiatives by chief
executives which were either ignored or meekly protested by
Congress. Sixth, although agreeing with its critics that the War
Powers Resolution should be revised, Fisher objects to replacing
concurrent resolution provisions found in the law with joint
resolutions. Lastly, he warns against compelling courts to rule
on all cases involving presidential war power as a mechanism for
checking centralization of authority in the executive branch.
Instead, he suggests several strategies for Congress to pursue to
ensure that it remains a coequal in war-related decisions and
policy. These proposals encompass invoking statutory
restrictions, employing the power of the purse, participating
regularly in oversight of administration actions, and refraining
from publicly supporting presidential military initiatives deemed
unconstitutional. Combining the themes he enunciates throughout
the text with recommendations he advances, Fisher contends that
independent "executive claims of military power are
counterproductive for Congress, the President, and the
country" (p. 204).
PRESIDENTIAL WAR POWER compares favorably with two other recent
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books on the subject. In their edited work, Gary Stern and Morton
Halperin include ten chapters on various topics associated with
the war power. These include a historical survey written by
Fisher, chapters on constitutional, treaty, international law,
statutory, and judicial constraints on executive military actions
abroad, and sections addressing covert actions, emergency war
power, and common ground between the branches. Although
containing a wealth of information, Stern and Halperin's book is
far from comprehensive and is somewhat problematical in its
organization.
John Lehman, former Secretary of the Navy, assesses similar
issues in his book, MAKING WAR. Lehman begins with the Desert
Storm confrontation, then sequentially analyzes events from 1800
to the Libyan air strike in 1986. He regards the War Powers
Resolution as irrelevant to military actions which transpired
subsequent to its passage. In later chapters, he applauds
executive agreements as an instrument for avoiding war,
criticizes the proliferation of congressional investigations of
executive branch personnel and policy as usurping the power of
the president, endorses executive privilege as a device for
maintaining control of confidential information, defends the
American invasion of Panama on several counts, and decries the
congressional bureaucracy which micromanages the defense
establishment. It is safe to say that Lehman's book derives its
conclusions from the author's direct experience in three
Republican administrations. His pro-presidency perspective stands
in sharp contrast to Fisher's legal orientation for scrutinizing
war power controversies.
Given his prior research and publications on the topic, it makes
sense that Louis Fisher would merge them in such a volume as
PRESIDENTIAL WAR POWER. However, other than his own contributions
cited in the book, Fisher uses a myriad of diverse sources in
presenting information. In the initial chapters, he taps
constitutional convention debates, FEDERALIST PAPER articles,
state constitution texts, and writings of various Constitution
framers. In later chapters he utilizes Supreme Court and lower
court cases, congressional debates and hearings, presidential
memoirs and messages, newspaper accounts, texts of laws,
statutes, and treaties, administration documents and
publications, and scholarly studies.
A second strength of the book is the plethora of justifications
and tactic used to explain how presidents assumed dominance in
military undertakings. Regarding justifications for wars
involving American forces, Fisher argues that chief executives
have cited protecting life and property, assisting allies,
deterring aggression or terrorism, self defense, and national
interest among other excuses. Beside illustrating why presidents
initiate military conflicts, Fisher identifies the tools relied
on to engage in such actions; these include executive orders,
emergency acts, legislation, executive agreements, treaties,
United Nations authorizations, enumerated constitutional powers
of the president, deception, and loopholes in laws pertaining to
military policy.
The text is quite up-to-date, spanning incidents as recent as
mid-1994, especially events like the Somalia and Haiti missions
and the Bosnian crisis during the present
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administration. Furthermore, it is timely given the current
debate over whether President Clinton must seek Congressional
authorization before sending United States ground forces into
Bosnia as cover for a possible withdrawal of United Nations
peacekeeping forces and the June 1995 House vote to retain rather
than repeal the War Powers Resolution.
Despite its positive features, the book possesses a few
shortcomings. First, it would be more appealing and helpful to
the reader if the aforementioned justifications and tactics
associated with presidential military initiatives, surveyed over
several chapters, were summarized in the concluding section. One
of the constitutional powers of the executive in foreign affairs
and war listed in Appendix B, the constitutional stipulation in
Article II that "The executive Power shall be vested in a
President," is not sufficiently dissected as a tactic within
the text. Other scholars such as John Norton Moore and Robert
Turner give much credence to this provision as a rationale for
presidential preeminence in military endeavors. Fisher similarly
falls short in developing post-World War II doctrines as tactics
for executive augmentation of war power, though the earlier
Monroe Doctrine and (Theodore) Roosevelt Corollary are mentioned.
A second drawback of the book is the dearth of military history
scholarship which could have substantiated and supplemented
findings. In reviewing the Mexican War, Fisher observes that the
president's commander-in-chief power "is at its low point
when there is no standing army because a President cannot deploy
troops until Congress raises them. But when a standing army does
exist, ready to move at the President's command, the balance of
power can shift decisively" (p. 30). It is precisely that
fact, along with advances in technology and the growth of a large
intelligence, national security, and defense structure, that
allowed presidents to gain the upper hand in post-1945 military
missions. Although the latter bureaucratic establishment is
somewhat reviewed in Chapter 8 on covert operations, the
ramifications of all of the aforementioned military history
characteristics could be discussed in greater detail.
Overall, this seminal text will set the contemporary standard for
investigating the development of and continuing disputes over
institutional parameters of the war power. Though written for an
academic audience, it is hoped that the book will enjoy wider
readership among elected officials, jurists, and the public, who
must share respectively in policy decisions, legal
interpretations, and informed judgements about the authority of
the American government to wage war.
References:
Lehman, Charles. 1992. MAKING WAR: THE 200-YEAR-OLD BATTLE
BETWEEN THE PRESIDENT AND CONGRESS OVER HOW AMERICANS GO TO WAR.
1992 (New York, Charles Scribner's Sons.
Stern, Gary and Morton Halperin, 1994. THE U.S. CONSTITUTION AND
THE POWER TO GO TO WAR: HISTORICAL AND CURRENT PERSPECTIVES.
Westport, CT: Greenwood Press.
Copyright 1995