Presidential War Power [Paperback]

Louis Fisher (Author)

Book Description

Publication Date: May 1, 2004 | ISBN-10: 0700613331 | ISBN-13: 978-0700613335 | Edition: 2 Revised

A classic and bestselling work by one of our top Constitutional scholars, Presidential War Power garnered the lead review in the New York Times Book Review and raised essential issues that have only become more timely, relevant, and controversial since its initial publication nearly a decade ago.

In this new edition, Louis Fisher updates his arguments throughout, critiques the presidential actions of William Clinton and George W. Bush, and challenges their dangerous expansion of executive power. Spanning the life of the Republic from the Revolutionary Era to the nation's post-9/11 wars, the new edition now covers:

€ New military initiatives including the Use of Force Act, the Iraq Resolution of 2002, George W. Bush's new "preemption doctrine," and his order authorizing military tribunals.

€ President Clinton's overt and covert military actions in Bosnia and against Yugoslavia, Iraq, Afghanistan and Osama bin Laden.

€ George H. W. Bush's reasons for not pushing on to Baghdad to overthrow Saddham Hussein after DESERT STORM.

€ Numerous Congressional initiatives, including a 1995 effort to amend the War Powers Resolution and a proposed 1998 amendment to use the power of the purse to limit presidential military initiatives.

€ The 1998 CIA "whistle-blowing" statute.

€ New sections on the Vandenberg Resolution of 1948, the "Little Sarah" incident of 1793, and early apparent precedents that did not make the President the "sole organ" of foreign affairs.

€ New material on letters of marque and reprisal, the law of nations, presidential "fame," and the contributions of Joseph Story.

Editorial Reviews

From Library Journal

Fisher, the senior specialist in separation of powers at the Congressional Research Service, Library of Congress, presents historic and constitutional arguments against the increasing usurpation by the president of war-making powers. Harry Truman set the modern precedent for circumventing congressional war powers by using United Nations authority to sidestep the Constitution during the Korean War. Dwight Eisenhower continued Truman's approach in covert government activities. With shocking ease, according to the author, subsequent presidents have continued this virtual presidential confiscation of the war powers. Fisher argues that they have done so by actions that violate both the letter and spirit of the Constitution. In an era of presidential temptation to increase popularity through foreign ventures, this study addresses one of the most important constitutional issues facing American government. Its relevance, clarity, and brevity commend the book to the widest readership.?William D. Pederson, Louisiana State Univ., Shreveport
Copyright 1995 Reed Business Information, Inc. --This text refers to an out of print or unavailable edition of this title.

Review

"An authoritative book. Goes to the heart of whether the Constitution still has a controlling influence on our national life." -- New York Times Book Review

"An essential volume for all libraries." -- Choice

"An intelligent and convincing contribution to the debate over our form of government." -- Washington Post Book World

"Fisher's point is compelling: power to commence war was given to the Congress under the Constitution and should remain there." -- Yale Law Review

"Should be read by all Americans interested in the political well-being of their country." -- Presidential Studies Quarterly

"Should be required reading on Capitol Hill and in the White House as well as in classrooms." -- Political Science Quarterly

"Trenchant, provocative, and powerful, with lean and lucid prose." -- American Political Science Review

See all Editorial Reviews

Product Details

• Paperback: 318 pages
• Publisher: University Press of Kansas; 2 Revised edition (May 1, 2004)
• Language: English
• ISBN-10: 0700613331
• ISBN-13: 978-0700613335
• Product Dimensions: 6 x 0.9 x 9 inches
• Shipping Weight: 1.2 pounds (View shipping rates and policies)
• Average Customer Review: 4.8 out of 5 stars  See all reviews (6 customer reviews)
• Amazon Best Sellers Rank: #834,583 in Books (See Top 100 in Books)

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Most Helpful Customer Reviews

18 of 19 people found the following review helpful

4.0 out of 5 stars Congress Good, President Bad January 12, 2001

By "firstpointofperformance"

Format:Paperback

Constitutional scholar Louis Fisher has done a magnificent job capturing the history of what he calls "presidential warmaking" -- that is, the tendency of presidents to usurp Congress's Constitutional war-making power. Fisher is not persuaded by claims advanced by modern presidents -- Democrats and Republicans alike -- that the Commander-in-Chief clause grants them broad discretionary war-making powers. His book is a long legal brief in favor of returning the war powers to the Congress.

At times, Fisher's belief in the rightness of his cause borders on the polemic. Though he recognizes that Congress has been complicit in presidential war-making, he reserves his harshest criticism for the presidents themselves. Arguably, however, it takes two to tango; if Congress actually *wanted* the war powers, it could take them "back." But as research shows, it is easier -- and therefore more palatable -- to sit on the sidelines, sniping at the president in case of failure or claiming a share of the credit after success.

No student of American politics or American foreign policy can plausibly claim to discuss the role of the executive branch in military/foreign policy without having digested Fisher's book.

11 of 11 people found the following review helpful

5.0 out of 5 stars Congress' Critic September 17, 2001

By Nichomachus

Format:Paperback

Although some background in constitutional law may be helpful, this book is very readable. Fisher is a thorough scholar, but he is also honest in giving vent to his frustration with Congress' cessation of war power in the modern evolution of Executive-Legislative relations.

This book is a great resource for historical and anecdotal information on the constitutional balance of power between the President and the Congress. Well-cited, and with a firm basis in constitutional logic and theory, Fisher develops a clear case that -although it does take on a diatribal flavor at times- does not require academic contortions to be demonstrated.

The criticism of the War Powers Act is very powerful, and needs to be understood more broadly in America. The unconstitutionality of the act is one reason it is never seriously invoked by the President or insisted upon by Congress, yet many people still refer to it as the crux for understanding the war powers balance between the Presidency and the Congress.

An excellent book for anyone interested in Constitutional allocation of power; useful for students, professors, and the concerned citizen.

9 of 9 people found the following review helpful

5.0 out of 5 stars Powerful indictment of the modern abuse of the war power January 16, 2006

By R. Price

Format:Paperback

Fisher's book is the strongest demonstration of how far we have allowed the original constitutional design of the war power to be destroyed that I've seen so far. Originally the war power was designed to avoid allowing a single person (i.e. the President) to decide whether we go to war; that was the duty of Congress. Fisher documents this fact and then examines two hundred years of American armed conflicts. Until the early 20th Century, with only minor deviations, it was understood that the President had to get authorization from Congress before entering armed conflicts. Only after WWII did the President claim the sole power to go to war, with Congress simply along for the ride. Fisher is nonpartisan in his criticism, attacking every President from Truman to Bush II, though he is supportive of Eisenhower's limited return to Congressional consultation. Fisher explains how practically every military action taking in this period was unconstitutional.

What I like most about this book is the fact that Fisher, unlike many other critics of this problem, does not seek to push the Supreme Court to intervene and restrain the President. Instead, he places the burden upon Congress. Fisher examines attempts to constrain presidential power, such as the War Powers Act, and illustrates that each has been insufficient and offers proposed changes to improve these checks. An interesting and informative read and we can only hope that someday Congress will again take up its responsibility rather than hide behind the President and then blame him if things go badly.

1 of 1 people found the following review helpful

5.0 out of 5 stars War Power Resides In Congress March 1, 2013

By S. Moss

Format:Paperback|Amazon Verified Purchase

Louis Fisher wrote an excellent book entitled ~Presidential War Power~ that investigated the understanding and importance of the separation of powers concerning the issue of war power. Fisher essentially asserts that beginning with the Truman Administration, the executive branch has continually violated the separation of powers by circumventing and seizing war powers that were traditionally left for Congress. Fisher is advancing a very interesting thesis and I would argue that this is a book that should be read, and then read again by everyone regardless of political leanings. Readers should note that the review in question if for the 1995 edition.

Fisher opened the book discussing the process by which America's war powers developed during the founding beginning with a discussion of the British system and why America departed from that tradition. The power to conduct war, etc. under the British model for war powers was mainly monarchical or our (USA) equivalent for the executive. The framers however rejected the British model giving the power of both "perfect" war i.e. a declared war and "imperfect" wars i.e. "Letters of Marque and Reprisal" to first the Continental Congress and Congress after ratification. Fisher's section discussing the founder's opposition to executive authority over war power is ample, but could be easily supplemented with a mountain of evidence to further demonstrate his point.

However, things would gradually change over time as Fisher noted, "Presidential use of force during the first few decades after Philadelphia Convention conformed closely to the expectations of the framers. The decision to go to war or to mount offensive actions was reserved to Congress. Presidents accepted that principle for all wars: declared or undeclared......Gradually the executive branch claimed for the President the power to initiate war and determine its magnitude and duration." Contrary to both right/left assert about early precedents of Presidents exerting their powers to conduct military operations and war, Fisher provides documentation that such interpretations are entirely backwards and wrong. In every case from the Indian Wars (1789), The Whiskey Rebellion, the Quasi-War w/ France, the Barbary wars, etc. American Presidents relied solely on Congressional approval before engaging in an act of military intervention. Also, to note that two court decisions resulting from the Quasi-War reaffirmed Congressional authority over war power and Fisher also noted, "Those cased do not imply that once Congress authorizes war, the President is at liberty to choose the time, location, and scope of military activity." President Polk was censured by the House of Representatives in 1848 in that "war had been `unnecessarily and unconstitutionally begun by the President of the United States.'" Neocons who believe they follow in the footsteps of Lincoln and argue that the President has the authority of commence war should know that Lincoln actually voted for the censure and declared to "allow the President to invade a neighboring nation, whenever he shall deem it necessary to repel and invasion, and you allow him to do so, whenever he may choose to say he deems it necessary for such purpose and you allow him to make war at pleasure... This, our Convention understood to be the most oppressive of all Kingly oppressions; and they resolved to so frame the Constitution that no one man should hold the power of bringing the oppression upon us" (f.34). Even in the extreme emergency of the Civil War, although Lincoln acted first he sought redress from Congress for the actions he had taken. Even throughout the latter 19th century the understanding of declaring war and "war making" was understood to belong to Congress as Fisher noted, "The lack of a declaration of war could not be a pretext for the executive branch to use armed force against another nation. That fundamental decision lay with Congress." Even in the fervor of the Spanish-American War the understanding for military intervention was vested in Congress which officially declared war on Spain.

However, at the turn of the century the collective judgment to initiate war (perfect and more importantly imperfect wars) began to wane as the Presidency in promoting their own foreign policy goals began to resort to military interventions without Congress. Theodore Roosevelt began to use this new found power on countries like Panama, Columbia, Dominican Republic, etc. Taft continued in Nicaragua, Cuba, Honduras and Wilson in Haiti and the Dominican Republic. Is it any wonder why Latin American countries are to put it mildly put off by the U.S.? As a consequence the Presidency became embolden with new powers and eventually began acting unilaterally in the realm of foreign policy contrary to the understanding that it is a shared power which leads to the Supreme Court case United States v. Curtiss-Wright Corp (1936) which will become a favorite for future courts to cite upholding presidential power as Fisher noted the case is cited to "support not only broad delegations of legislative power to the president but even the existence of independent, implied, and inherent powers for the President." The opinion was written by Justice George Sutherland a former Senator from Utah and member of the Senate Foreign Relations Committee and strong supporter of these new found powers elaborated on above. Sutherland basically stated that these powers of foreign affairs passed from the crown to the executive an idea that is historically unfounded. Things would further deteriorate following World War Two, prior to Congress still retained some level of power as war was officially declared.

The Korean War would mark a new precedent for Presidential war power as Truman without anything from Congress decided to commit troops to Korea under the resolutions passed by the United Nations Security Council which is a precedent several Presidents would circumvent Congress entirely and unconstitutionally. Interestingly however these UN resolutions that are often cited to conduct military operations required "prior authorization by Congress (both Houses) of any commitment of U.S. forces to the United Nations." When debating/creating the process in which the U.S. would commit troops to the UN the history shows that "the United States, `acting through its constitutional process,' joins in the establishment of an international authority with power to prevent aggression." As the historical record shows the phrase "acting through its constitutional process" had deliberate meaning that provisions for military intervention had to pass through both Houses of Congress before the military could intervene. Article 43 of the UN Charter indicates that agreements to use force had to be "in accordance with their (the countries) respective constitutional processes" furthermore, this phrase is defined by "Section 6 of the UN Participation Act of 1945..." requiring that "agreements `shall be subject to the approval of the Congress by appropriate Act or joint resolution." Fisher noted two interesting qualifications under Section 6 that he explained, "once the President receives that approval of Congress for a special agreement, he does not need subsequent approval from Congress to provide military assistance under Article 42...the second qualification clarifies that nothing in the UN Participation Act is to be construed as congressional approval of other agreements attempted by the President. Thus, the qualifications do not eliminate or weaken the need for congressional approval. Presidents could commit armed forces to the United Nations only after Congress gave its explicit consent" Truman and subsequent Presidents would cite these as justification for military intervention without Congress even though the language contained in those provisions are the exact opposite of what the Presidents have claimed as under their authority. By the time Truman violated these principles Congress lacked any balls (although insisted that he should have went to them first) and were largely passive of Truman, etc. blatant overreach of power. Interestingly enough the Korean War wasn't even a UN operation so how did the citing of the UN resolutions give credence to commence war??? Senator Robert Taft led with some dissent against this power of the President's newly found war powers only to be attacked and rebuked by Commager and Schlesinger on purely political grounds only later to apologize and to concede Taft was right.

These same limitations, as Fisher noted, in need for Congressional approval for military intervention also affect the mutual security treaties like NATO, SEATO, Rio Treaty, etc. However Presidents would insist on their powers as "Commander in Chief" which was a complete reinterpretation of that phrase and totally unfounded prior to the Truman Administration that they could send troops, commit war, etc. Later Truman would invoke Executive Order 10340 seizing eighty-seven steel companies under the guise of "Commander in Chief" powers eventually being found unconstitutional in a weak court opinion.

Eisenhower upon being elected believed in the authority of Congress to declare war, although he believed Korea was right for intervention he argued Congress must be involved in the process to make war, except for "covert" operations. Eisenhower believed that "Single-handed actions taken by a President, without the support of Congress and the people, can threaten national prestige and undermine the presidency." In most cases Eisenhower sought authority from Congress but after his presidency the issue of the President acting under his own accord re war powers would once again surface during the conflict in Vietnam, more specifically Nixon's Vietnam that would eventually lead to the War Powers Resolution (WPR) and the "awkward" and self-contradictory language contained within the resolution.

Chapters 7 and 8 of Fisher's book are of interest as they cover military initiatives from Fort to Clinton and covert operations from the mid-1970s through the mid-1990s. Military action under presidents Reagan, Bush Sr., and Clinton began to accelerate quickly. Under Reagan he submitted 14 reports under the WPR, Bush Sr. 6, and in his first year alone Clinton issued 5. Between the three, some of these reports were major/extensive operations such as the invasion of Lebanon and Grenada, airstrikes against Libya, the invasion of Panama, the first Iraq War, Somalia, and airstrikes in Bosnia. Essentially the President began under the made up powers of "conducting foreign relations" and "Commander-in-Chief" to unilaterally conduct war without authorization (collective judgment) of Congress as explicitly designed by the founders. Under the "seeds of secrecy" the presidency also began conducting "covert" operations (military interventions) without the consent of Congress. These covert operations would expand greatly following the Second World War. These covert operations have largely gone on unchecked and the executive branch has continuously civilian forces (military) in much of these operations a power granted to Congress under the "grant Letters of Marque and Reprisal" clause, an 1802 Amendment giving the President this power was explicitly rejected. Such operations since World War Two have led to such boondoggles as Iran-Contra, and many others that have caused massive animosity towards the United States.

Louis Fisher's book Presidential War Power cuts through much of the malarkey surrounding the modern claims that a President doesn't or never did need Congressional approval for foreign military operations. Historically the evidence is clear that the assertions of the neocons and other presidential warmongers are just clear attempts to rewrite our nation's history and founding. Fisher is absolutely correct in declaring that there needs to be a restoration of the constitutional checks and balances that historically we as a nation once had. Constitutional historian Leonard Levy's endorsement stating, "this important book deserves the widest possible readership and should be compulsory reading for every Congressman and President" still rings true after it was first stated 18 years ago. HIGHLY RECOMMENDED. Read more ›