Nancy Kassop

Constitution: Invitation to Struggle
Does the Constitution provide sufficiently clear jurisdictional boundaries between the parties?
Kassop Believes It Has
There is little reason for confusion. Lines of demarcation are clear.
Branches Have Specified Powers
Constitution provides each specific expressed powers.

Expressed Powers
Congress: Article I
Specific delineated powers…
Presidency: Article II
Is the Commander in Chief. But powers are limited.

Presidency: Commander in Chief.
Article II, Section 2 states:
“ The President shall be commander in chief of the Army and Navy of the
United States, and of the militia of the several states, when called into the actual service of the United States.
”
President is not the Commander in Chief at all times.

Presidency: Commander in Chief.
The president is only the “ commander in Chief ” when “ called into service ” by Congress.
Hamilton: Federalist 69
President heads the armed forces, but unlike a king is not empowered to declare war. The declaration of war is reserved to legislative branch.

Congress and Commander in Chief
It is Congress, not the president that declares war. As such, it is only after a
Congressional declaration of war that the President becomes the
“ Commander in Chief.
”

What About in Emergencies?
Framers understood President would be better able to act in moments of crisis.
Constitutional Language: From “ Make ” to “ Declare ” War
This understanding was expressed in a change in the nature of
Congressional power from “ make ” to “ declare ” war. Part of this change was provide the president “ the power to repel sudden attacks.
”

What the Constitution Requires of the President
1) Offensive Operations Require Congress Approval
2) President power limited to Defensive actions
3) Congress determines scope, timing of military actions
4) Commander in Chief not an Open-Ended Policy
5) President needs to provide Congress with good information.

Presidential Track Record: Quite Poor
Presidents have violated these constitutional requirements with increasing impunity.
Examples: Truman Commitment of Troops to Korea
Truman violated these conditions in the following ways
1) Not Intended to Repeal an Attack
2) Based on Commander Chief Powers Alone
3) Seized Mills in US to Ensure War Production
4) Did not Consult with Congress
5) Cited UN Resolution for Authority to Invade

Justifications for Presidential Expansionism
Commander in Chief Clause
Vietnam War: Clause Empowered LBJ to Invade
Vietnam/Communism was a Threat to US, hence president had authority to act (Small World Theory).

Congressional Efforts to Reassert it Authority
Public Opinion: President is Commander in Chief
It has been widely accepted that presidents, as the Commander in
Chief has the authority to act militarily.
War Powers Act (1973)
But, near the end of the Vietnam War, Congress did reassert its authority.

Congress and Vietnam War
Congress tried to reassert and clarify its power with War Powers Act (1973).
The Act states that:
1) President must notify Congress with 48 hours of deploying troops
2) Update Congress every six months of ongoing deployments
2) Has to limit military campaign to 60 Days without Congressional authorization.

Congressional Efforts to Reassert it Authority
War Powers Act (1973): In Effective
The Resolution has had essentially no effect on Presidential Actions.