Constitutional Law Article

The Commander in Chief at the Lowest Ebb – A Constitutional History

Vol. 121 No. 4 Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent” power as Commander in Chief to act in the absence of congressional authorization. Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.” This Article is the second part of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived.
Constitutional Law Article

The Commander in Chief at the Lowest Ebb – Framing the Problem, Doctrine, and Original Understanding

Vol. 121 No. 3 Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent” power as Commander in Chief to act in the absence of congressional authorization. In this Article, Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.” Contrary to the traditional assumption that Congress has ceded the field to the President when it comes to war, the Commander in Chief often operates in a legal environment instinct with legislatively imposed limitations. In the present context, the Bush Administration has been faced with a number of statutes that clearly conflict with its preferred means of prosecuting military conflicts. The Administration’s response, based on an assertion of preclusive executive war powers, has been to claim the constitutional authority to disregard many of these congressional commands.