War & Peace - Whose Power Is It? The War Powers Struggle Between the President and Congress

Constitutionally Speaking: War Powers What is primary constitutional conflict between Congress & Pres over decision to go to war?

President is Commander-in-chief & Congress has power to declare war

War Powers – Congress Article 1, Section 8 Declare war Raise & support army Provide & maintain navy Make rules concerning captures on land & water Organize, arm, train & provide for the militia Oversee rules for the military Suppress insurrections & repel invasions Ratify treaties (Senate) Advise & consent of ambassadors (Senate)

Other Congressional Powers What other congressional powers does Congress possess that can limit the president’s war-making ability? Passing laws Controlling appropriations (funding) Impeachment Congressional Oversight --Hearings & Investigations Ratify treaties (Senate) Advise & consent of ambassadors (Senate) Explain how or why each of these are formal Congressional powers over war making

War Powers – President, Article II, Section 2 Commander in Chief of the Army & Navy Commander in Chief of the state militias (now the National Guard) Commission all officers Appoint ambassadors, ministers and consuls Make treaties subject to senate confirmation Receive ambassadors

The War Powers Resolution Nov. 7, 1973, in response to President Nixon’s secret bombing and subsequent invasion of Cambodia and the wider war in Vietnam, Congress passed War Powers Resolution

The War Powers Resolution President can commit military only after dec of war by Congress, authorization by Congress, national emergency or use of force is in national interest of US Once troops are sent, President required to notify Congress about action with 48 hours Consult with Congress regularly until troops removed Unless Congress approves use of troops within 60 days or extends 60 day time limit, forces must be withdrawn (assuming no dec of war Congress overrode Nixon’s veto of the law, get 30 day withdrawal period

War Powers: The Supreme Court Weighs In The Prize Cases (1862) Korematsu v. United States (1944) Youngstown Sheet & Tube Co. v. Sawyer (1951) Hamdan v. Rumsfeld (2005)

The Prize Cases (1862) Key Issue: Did President Lincoln act within his presidential powers when he blockaded southern ports without a declaration of war? Court’s Decision: The President had the power to act because a state of war existed. Discussion Question: Does this case expand or limit the war powers of the President and/or Congress?

Korematsu v. U.S. (1944) Key Issue: Did the Present, with the support of Congress, have the power to restrict the rights of Japanese Americans by relocating them to internment camps? Court’s Decision: The government’s limitation of rights was justified during a time of “emergency and peril.” Discussion Question: Does this case expand or limit the war powers of the President and/or Congress?

Youngstown Sheet Co. v. Sawyer (1951) Key Issue: Did President Truman have the power to seize & operate steel mills to avert a strike during the Korean War? Court’s Decision: The President did not have the authority to seize private property without a congressional statute. Discussion Question: Does this case expand or limit the war powers of the President and/or Congress?

Hamdan v. Rumsfeld (2005) Key Issues: 1) Were the military commissions set up by the Bush administration to try detainees at Guantanamo Bay constitutional? 2) Can Congress pass legislation preventing the Supreme Court from hearing the case? Court’s Decision: Neither an act of Congress nor the inherent powers of the President authorize military commissions that do not comply with US and international laws. Discussion Question: Does this case expand or limit the war powers of the President and/or Congress?

Artist: Bob Matson. Date: 3/30/07. Source: http://themoderatevoice

Artist: Mike Lane. Date: 5/1/07. Source: http://themoderatevoice

Artist: Patrick Chappatte Date: 9/12/07 Source: http://www.cagle.com/news/PetraeusReport/4.asp

Artist: Michael Ramiez Date: 9/12/07 Source: http://cagle.msnbc.com/politicalcartoons/PCcartoons/ramirez.asp

Discussion Questions Have the lines between the president’s role as commander-in-chief and Congress’ power to declare war been blurred? Is the president too able to commit American troops to conflict without congressional approval or oversight? Is War Pwrs resolution effective or even constitutional?

Discussion Questions How do president’s war making powers and congressional oversight like the War Powers Resolution illustrate the concept of checks and balances? How might a divided govt make the issue more contentious?