Vol. 131 No. 8 Editors' Note: Since publication of this In Memoriam, the editors of the Harvard Law Review have published additional pieces — unassociated with this In...
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.
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.