Vol. 14 No. 8 (August 2004), pp.639-642

PRESIDENTIAL WAR POWER (Second Edition, Revised), by Louis Fisher.

Lawrence, Kansas: University Press of Kansas, 2004. 304pp. Cloth $35.00. ISBN: 0-7006-1332-3. Paper $16.95. ISBN: 0-7006-0333-1. 

Reviewed by David Dehnel, Department of Political Science, Augustana College (IL). Email: podehnel@augustana.edu 

This second edition of Louis Fisher’s PRESIDENTIAL WAR POWER couldn’t be better timed.  The first edition, published in 1995, presented a comprehensive historical survey of presidential war making, with emphasis on the decline of the constitutional checks assigned by the framers to Congress. The new edition places events through the War in Iraq in historical perspective. The seamless way the new material fits into Fisher’s analysis testifies to the integrity and continued relevance of his scholarship. 

The book is structured as an historical survey.  It begins with an important chapter on the founders which lays out Fisher’s central thesis: that the framers of the Constitution gave the power to initiate war to Congress; therefore, war by independent presidential authority is a departure from the basic scheme of constitutional checks and balances.  Fisher’s historical case is persuasive, and he further substantiates it with material in the second chapter showing that after the adoption of the Constitution the founding generation assumed that Congress held the power to initiate war, and behaved accordingly. 

Subsequent chapters trace the gradual decline of the founders’ system as Presidents became more assertive and Congress more passive.  Starting most notably with the Mexican War (1846), Presidents began to take actions aimed at provoking war, and foreign interventions were sometimes justified in terms of protecting American lives and property abroad.  Such executive interventions increased in the early 20th Century as the American empire and international commitments expanded.  Still, through World War II no major wars had been fought without congressional authorization.  The framers’ system had been strained but not broken.   

The key turning point, according to Fisher, was the Korean War, the first major war fought without congressional approval and the first of several in which the President claimed the authority to involve the United States in a foreign war on the basis of United Nations resolutions. Fisher demolishes the logic behind such claims.  The Senate cannot, by exercising its power to ratify treaties, waive the constitutional authority of the House of Representatives, an equal party to the war power.  (This argument applies with similar force to presidential initiatives based on NATO and other international agreements.) The UN Charter recognized that agreements of member nations to contribute troops to UN actions would be reached “in accordance with their respective constitutional processes.” The UN Participation Act of 1945 defined those processes for the United States.  The statute plainly states that congressional [*640] approval is required.   

Fisher’s analysis of the historical record in this and other cases is nuanced and balanced.  He cites statements and perspectives that run contrary to his own interpretation, and is quick to recognize that the framers of legal documents often fail to anticipate the complex circumstances in which armed conflict might arise.  Still, he is quite convincing in showing that, whatever one may think of the wisdom of executive war making, the legal justifications offered do not stand up to scrutiny. 

For political scientists who, like myself, are skeptical of normative claims based on the intent of the framers, Fisher’s approach raises questions but is ultimately useful.  Actual practice in relation to the separation of powers, and other fundamental constitutional principles, has evolved to the point that we no longer operate under the framers’ Constitution. The delegation of legislative power to independent regulatory commissions or the creation of the welfare state, to give two examples, are certainly beyond anything contemplated by the founders.  When practices like these become thoroughly institutionalized, and their legitimacy is affirmed by popular consent, their constitutionality is no longer in doubt.

Fisher is perhaps too facile in dismissing the idea that modern conditions require a more expansive interpretation of presidential war power than that held by the founders.  He discounts the claimed need for speed and secrecy, pointing out that the framers also lived in dangerous times.  If Presidents feel compelled in an emergency to act independently, he argues, they should not invent dubious legal rationalizations or invoke congressional blank checks.  It would be better for them to act, explain themselves, and seek congressional approval in a timely manner. His exemplar for this is Lincoln early in the Civil War.  In practice, however, one can hardly expect Presidents facing a perceived crisis to emulate Lincoln’s willingness to admit to that his actions, while necessary, were of ambiguous legality.  Presidents will cite such precedents and doctrines as may lend support to their position, and given the practice of the last half-century they have plenty to draw on. 

Fisher’s analysis of the framers is important, however, for debunking the contrary claim that presidents have a constitutional right to unchecked war power.  Chief executives from Reagan forward have claimed that the War Powers Act interferes with the President’s constitutional power, as commander in chief, to make war on his own initiative.  Fisher shows conclusively that the founders accepted unilateral executive action only to repell sudden attacks.  While changing conditions and evolving practice may justify new interpretations of the Constitution, they cannot create an executive prerogative that is superior to the constraints of duly enacted law.  

The remaining two-thirds of the book contains a meticulous survey of developments since the Korean War.  A synopsis of this material would be beyond the scope of this review.  Instead, I will point out some of the major themes which Fisher weaves into his historical narrative.  Although Fisher is a champion of congressional authority, he recognizes that Congress has at times [*641] been its own worst enemy, hastily granting broad authority to the President (as in the case of Vietnam in 1964 or Iraq in 2002).  When the President has acted alone Congress has from time to time raised objections, but the concerted effort to end funding for the bombing of Cambodia (in 1973) is the only significant case in which a war was ended by legislative action. 

This record raises questions about the effectiveness of Congress as a formal check, an issue Fisher could address more persuasively.  In the case of the recent Iraq War, Fisher argues that George W. Bush effectively manipulated Congress by pushing through a resolution just before a mid-term election and before developments in Iraq had ripened.  Fisher suggests that Congress should have waited until after the election and until the UN Security Council had considered the matter.  He points to the contrasting circumstances of the 1991 Persian Gulf War, when Congress did not act until after the UN and after opening its new session in January. This example is hardly reassuring, however, since the 1991 vote came too late in the day, just before the January 15th deadline for Iraqi capitulation set by George Bush, Sr. By that time it appeared to observers such as myself that America’s commitment to military action was a foregone conclusion.  (George H. W. Bush, like his son, denied that he needed congressional approval.)  In order to be effective, Congress needs to act with deliberation but before presidential initiatives have all but decided the issue.  The historical record does not offer much support for this possibility. 

Another theme in Fisher’s book is the role of the judiciary.  Since the 1790s the federal courts have been called upon to issue rulings on the legality of presidential war making.  Fisher’s catalog of these cases is another valuable product of this meticulous study. When the courts reach the merits of war power cases, more often than not the rulings have favored the President.  On many occasions the courts have refused to rule, citing such Article III based considerations as standing, ripeness and political question doctrine.  In recent years members of Congress have frequently gone to court to protest unauthorized military actions.  Fisher grants that the courts will play a role in the debate over constitutional doctrine, but he argues that Congress should not expect (and certainly not require) the courts to vindicate its authority.  In the separation of powers scheme each branch is expected to guard its own prerogatives.  

The last major attempt by Congress to do that was the War Powers Act of 1973.  The book is a rich source on the impact (or lack of impact) of the Act and contains a thoughtful analysis of its continued viability.  Fisher concludes that the Act is sound in principle but flawed in design and operation.  The Act can be read to leave Congress in a passive role, authorizing unilateral presidential action for 60 days or until Congress intervenes.  Because Presidents have ignored the Act on several occasions, Fisher would like to see a provision that stipulates that any use of funds for the commitment of troops to combat abroad would require prior legislative approval. He also discusses the need to clarify the reporting and consultation dimensions of the Act.  [*642] 

Fisher’s discussion of the legislative veto provision in the Act is subtle.  Congress can order the withdrawal of troops by concurrent resolution, not subject to presidential veto.  The Supreme Court’s 1983 decision in CHADHA casts doubts on such procedures.  Fisher offers a legal defense of the provision, but he also notes that a concurrent resolution need not be legally binding to serve as a significant political check on the president. 

Finally, a major theme of the book is that war is seldom a wise choice, and that the record of presidential war making is spotty at best.  According to Fisher’s careful reading of the record, a successful presidential military initiative is only a prelude for disasters to come.  For example, Fisher is sharply critical of Bill Clinton’s expansive claims for executive power, despite the relative success (so it seems to me) of his military initiatives. After a half-century of presidential war making it may be naïve to think that a constitutional fix can work, but Fisher makes a convincing case that this is one area in which the notorious inefficiencies of a system of separation of powers should be nourished. 

PRESIDENTIAL WAR POWER is well written and clearly argued.  It is comprehensive without being ponderous and trenchant without being partisan.  I used the First Edition in my undergraduate constitutional law course with success, and the Second Edition will be even better given unfolding events.  It is a good read for both citizen and scholar. 

CASE REFERENCES:

INS v. CHADHA, 462 U.S. 919 (1983).

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Copyright 2004 by the author, David Dehnel.