CONSTITUTIONAL LAW SPRING 2008 – PROF. FISCHER
Outline for Class 21: War Powers I
I.
Central Themes
II.
Separation of Powers and Foreign Policy
A. Are the president’s inherent powers greater in the area of
foreign policy than domestic affairs? United States v. CurtissWright Export Corp. (1936) [C p. 321]
B. Treaties and Executive Agreememnts
i. Text: Art. II § 2: The president “shall have Power, by and with the
Advice and Consent of the Senate, to make Treaties, provided two
thirds of the Senators present concur.”
ii. When can a president use an executive agreement instead of a
treaty?
 United States v. Pink (1942); United States v. Belmont (1937) [C
p. 324]: Court upheld Litvanov Agreement recognizing Soviet
Union (executive agreement)
 Dames & Moore v. Regan, Secretary of the Treasury (1981) [C p.
325]
C. Many disputes involving use of the foreign policy questions will be
nonjusticiable political questions (see Class 3).
III.
War Powers – Shared between Legislative and Executive
a. Text:
Art. I § 8 cl. 11 Congress has the power to “declare war”
Art. I § 8 cl. 12 and to “raise and support armies”
Art. I § 8 cl. 13 and to “provide and maintain a navy”
Art. II § 2 “The President shall be commander in chief of the
Army and Navy of the United States”
b. Does the congressional power to declare war require a
formal declaration of war?
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c. When, if at all, can the President use American troops in
hostilities without congressional approval? Note no
executive counterpart for Art. I § 10 cl. 3 “No State shall,
without the Consent of Congress, lay any Duty of Tonnage,
keep troops or Ships of War in time of Peace, enter into any
Agreement or Compact with another State or with a foreign
Power, or engage in War, unless actually invaded, or in such
imminent Danger as will not admit of delay.”
d. Debate over judicial role in judicially reviewing legality of
executive decisions to lead the nation into hostilities should political question doctrine apply to bar judicial
review?
e. Debate over legislative role restricting presidential war
powers: War Powers Resolution of 1973 (a statute enacted
over the veto of President Nixon).
 Is the War Powers Resolution constitutional? Why
or why not?
 Note that courts have not found and are unlikely
ever to find a constitutional challenge to the War
Powers Resolution justiciable (see Class 3 on the
Political Question doctrine)
 2002 Authorization for the Use of Military Force in
Iraq, a joint resolution passed by both houses of
Congress and signed into law by President George
W. Bush in October, 2002 states that it is “intended
to constitute specific statutory authorization within
the meaning of section 5(b) of the War Powers
Resolution.” (section 1544 in your book)
IV.
Constitutional Powers and Restrictions During Periods of
Crisis
a. Unlike many other constitutions (e.g. India, South Africa),
the U.S. Constitution has no specific “state of emergency”
provisions. Debate over whether they would be desirable,
as well as over whether Constitution’s protection of civil
liberties should be the same in times of peace and times of
emergency.
b. Text:
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V.
 Art. I § 8 cl 15 “The Congress shall have the Power . . . To
provide for calling for the Militia to execute the Laws of
the Union, suppress insurrections, and repel Invasions.
 Art. I § 9 cl. 2 “The privilege of the Writ of Habeas
Corpus shall not be suspended unless when in cases of
Rebellion or Invasion the public safety may require it.”
 Art. I § 10 cl. 3 “No State shall, without the Consent of
Congress, lay any Duty of Tonnage, keep troops or Ships
of War in time of Peace, enter into any Agreement or
Compact with another State or with a foreign Power, or
engage in War, unless actually invaded, or in such
imminent Danger as will not admit of delay.”
 Art. II § 2 cl. 1 President shall be Commander in Chief
“of theArmy and Navy of the United States, and of the
militias of the several states, when called into the actual
service of the United States.”
 Art. IV § 4: “The Congress . . . shall protect each of [the
states] against Invasion; and on Application of the
Legislature, or of the Executive [when the Legislature
cannot be convened) against domestic violence.”
 Third Amendment: prohibits soldiers from being
quartered in homes without consent of owners in
peacetime “nor in time of war, but in a manner to be
prescribed by law.”
 Fifth Amendment: “No person shall be held to answer for
capital, or otherwise infamous crime, unless on a
presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Mlitia, when
in actual service in time of War or public danger”
Executive Discretion over Detention During Wartime
a. Rasul v. Bush (2004) [C p. 332]
b. Padilla v. Rumsfeld (2004) [C p. 332]
c. Hamdi v. Rumsfeld (2004) [C p. 332]
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