Commander in Chief

Proposing that the Northwest Indian War was the United States’ first authorization of the use of military force and that this conflict can inform an originalist understanding of the War Powers Clause and the President’s role as Commander in Chief.

Arguing that the text and structure of the Constitution grant the President no emergency powers to act contra legem, invade private rights, or suspend constitutional liberties. Describing the use of presidential emergency powers from the Founding to the Civil War.

Arguing that the Constitution’s text and structure, as well as historical practice, support the concept of a powerful Commander in Chief, but that the President lacks exclusive military powers and is subject to congressional direction in all military matters.

Arguing that the Framers intended the legislature to possess power over the Commander in Chief in all matters pertaining to war-making, except those that would deprive him of military superintendence.

Arguing that the original meaning of the Constitution does not allow the President to initiate military conflict but that a modern President still might be able to do so.

Arguing that the Framers intended the President to have full control over the strategic decisions of war while leaving Congress the ability to check presidential war-making authority through the power of the purse.

Critiquing Peter Irons’ historical analysis of the war powers in his book, War Powers, and criticizing John Yoo’s historical and structural analysis of the war and treaty powers in his book, The Powers of War and Peace.

Contending that the Framers’ understanding of the term “Commander in Chief” was shaped by their experiences with General George Washington and arguing that Washington’s war actions and writings can inform an originalist understanding of presidential war power.

Arguing that the Constitution‘s grant of authority to Congress in war-related questions of international law informs an originalist understanding of the Commander-in-Chief Clause.

Proposing that Founding Era documents and debates point to the executive power as primarily giving the President the power to execute federal laws and to control governmental officers who execute federal law.

Arguing that an originalist understanding of the Declare-War Clause bars the President from ordering military attacks upon foreign powers without Congress’s approval.

Critiquing Michael Ramsey’s historical scholarship in Textualism and War Powers and providing a textual and structural theory of a flexible war power that provides the President with the authority to initiate hostilities.

Proposing that the Founders believed that a President’s desire for fame might lead him to declare war even when war was not in the national interest, leading the Framers to give Congress alone the power to decide questions of war.

Identifying questions raised by Louis Fisher’s book, Presidential War Power, and offering an alternative view to Fisher’s interpretation of the Founders’ understanding of constitutional war powers.

Concluding that the Constitution’s text, the political and legal context of the Framing, and arguments made during the ratification debate all point to the War Powers Clause as a mechanism for encouraging presidential initiative in war.

Critiquing John Hart Ely’s originalist interpretation of the War Power Clause in Ely’s book, War and Responsibility, for failing to consider how the Executive Power Clause influences interpretation of the War Power Clause.

Expressing skepticism of “new originalism’s” claim to be the sole legitimate method of interpretation because of how new originalism has struggled to interpret certain foreign affairs aspects of the Constitution.

Documenting the Framers’ debates during the Constitutional Convention, as well as their post-ratification writings and actions, to determine that the Framers intended the President to have broad authority over foreign affairs and military policy.

Arguing that the text of the Appropriations Clause is more ambiguous than commonly believed and that the Framers intended the Clause to ensure fiscal responsibility and accountability, not serve as a legislative veto on presidential action.

Suggesting that Framing Era debates over the Declare War Clause indicate that the Framers intended Congress to have a powerful role in initiating war, whether declared or not.

Contending that the Framers intended Congress to have the last word on matters of peace and war, but that the President’s war-making authority goes far beyond the power to repel sudden attacks.

Arguing that the Framers intended Congress to hold virtually all war-making powers, leaving the President only the power “to repel sudden attacks” on the United States.