The Administration of George W. Bush has boldly argued that the President, in his capacity as commander in chief, has the constitutional authority to disregard many laws that impinge upon his discretion to prosecute armed conflicts in the manner he deems best. This contention has precipitated as serious aseparation of powers conflict as any in recent decades. Many critics have responded incredulously to the President's assertion. Others have argued that it accords with the views of the Framers and the practices of Chief Executives throughout our history. In consequence the key issue in the debate over constitutional war powers is no longer--as it had been for the second half of the twentiethcentury--the extent of the President's authority to act when Congress has been silent. War powers disputes now increasingly turn on the constitutional issues raised when Congress imposes limitations and, as Justice Jackson famously opined in his concurrence in the Steel Seizure Case, the President's authority is at its “lowest ebb.”
In a companion Article, we described many of the structuralforces responsible for this shift in the ground of debate. Collectively, they strongly suggest that the prevailing paradigm of congressional abdication-- developed at a time when bold claims of presidential authority to act without express legislative approval occasioned all the attention--no longer illuminates the main battle lines in constitutional struggles over the exercise of war powers. Amongthe most important of this forces is the peculiar nature of the war on terrorism. Its unusual entwineiment with the home front, its heavy focus on preemptive action and intelligence collection, and its targeting of a diffuse, non-state enemy, all guarantee that presidential uses of force are likely to be conducted for years to come in a context that is thick with statutory restrictions. But evenbeyond the war on terrorism, the “lowest ebb” issue is likely to take on added significance, if only because of the increased willingness of Presidents to deploy force abroad. There is mounting evidence that the reduction in legislative participation at the front end of these conflicts is being counterbalanced to some extent by a legislative willingness to intervene at the back end if the campaigngoes poorly or if the public begins to doubt certain of the President's decisions about how it should be prosecuted.
Once the question of the constitutionality of statutory limitations on executive war powers takes center stage, a paradox immediately presents itself. As we explained in our previous Article, the Bush Administration's striking asertions of preclusive powers are ultimatelypredicated on a basic proposition that even its critics have generally taken for granted. There is a venerable scholarly consensus that Congress is constitutionally disabled from using its Article I war powers to limit the President's “tactical” options in wartime, or, put otherwise, to “interfere with the command of the forces and the conduct of campaigns.” In order to properly assess thejustification for, and possible limits of, executive branch assertions of preclusive war powers, we argued, one must undertake a more careful and less reflexive examination of that key premise.
In taking up that challenge, we have focused our efforts on filing a striking gap that exists in the literature. The common historicist framing of war powers scholarship over the past half-century hasoverwhelmingly focused on a single question: it has exhaustively parsed the meaning of more than two centuries' worth of public utterances and actual constitutional practices pertaining to the president's authority to use force and otherwise deploy troops abroad without legislative preapproval. In stark contrast, history has largely been neglected--or, at most, invoked only superficially--as a...