Dialnet-TheSeparationOfPowersInUnitedStatesOfAmerica-3046701.pdf

Presidents have maneuvered the nation into war

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presidents have maneuvered the nation into war, leaving Congress no alternative to issue an official declaration, is too involved to survey here. But a renown constitutional scholar, writing in the mid Twentieth Century, concluded that only the War of 1812 and the Spanish-America War followed upon “policies and views advanced” in Congress; that the other engagements – the Mexican War, the Civil War, and “our participation in the First World War and the Second ... were the outcome of presidential policies in the making of which Congress played a distinctly secondary role.” 73 If anything presidential powers have increased substantially since this appraisal: since World War II, without any congressional declaration of war, the United States has engaged in major and prolonged military conflicts in Korea, Vietnam, and Iraq – conflicts popularly called “wars” – all presidentially initiated. Some even suggest that a formal congressional declaration of war is now a relic of the past and certainly no obstacle to the exercise of presidential powers. 74 70. “Helvidius” [James Madison], essay no. 1, from The Founders Constitution , 4, 67. 71. Ibid, 4, 65. 72. In upholding a delegation of power to the president to suspend arms shipments to belligerent nations when such would contribute to peace between them, a delegation which Court acknowledged would not pass muster in the domestic field, it held that the president “as sole organ” of the nation “in the international field” possesses a “plenary and exclusive power”; a power which, though subordinate to “the applicable provisions of the Constitution,” “does not require for its exercise an act of Congress.” U.S. v. Curtiss-Wright Export Company , 29 U.S. 304, 320 (1936). 73. Corwin, The President: Office and Powers , 204. 74. See: Interview with John Yoo at < 960315in.html>. Yoo argues that the traditional understanding of the declaration of war power is unfounded and that, moreover, this power has very limited utility. See also: Testimony of Donald 284
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Despite the experiences gained from these hostilities, controversy over the president’s powers during war or times of emergency still remains. While Hamilton conceived of the president’s role as commander-in-chief to be somewhat limited, confined largely to “command and direction” of the armed forces, 75 it has come to be something far more expansive. A convenient point of departure for understanding this development is Lincoln’s use of the prerogative power during the Civil War. He suspended habeas corpus , issued new passport regulations, ordered the blockade of Southern ports, expanded the army and navy, expended unappropriated funds, issued the Emancipation Proclamation, “closed of the Post Office to treasonable correspondence,” and, inter alia, instituted a militia draft, all without congressional authorization.
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