Once again embroiled in an unpopular overseas armed conflict, the United States faces difficult questions concerning the constitutional use of military force. Records from the Constitutional Convention suggest the Framers intended to lodge America's power to go to war with the Congress. While American presidents' early use of military force displays deference to the legislature, more recent military actions illustrate the executive's dominance in making war. Notwithstanding a few early court decisions in Congress 's favor, the judiciary has been unhelpful in restoring the constitutional Framers' vision for the administration of the war power Congress, therefore, has been forced to act alone in attempting to revive the legislature's role in the decision to go to war After several unsuccessful attempts, Congress's passage of the War Powers Resolution of 1973 appeared to finally re-inject congressional input in the war-making process. However subsequent jurisprudence, scholarly debate, and presidential disregard for the law have revealed the War Powers Resolution's various inadequacies. Accordingly, this paper proposes that a new law-the War Powers Appropriations Act-be passed to protect the congressional war powers afforded by the Constitution. By protecting Congress's role via the legislature's constitutional power to appropriate funds, the War Powers Appropriations Act represents a solution that accomplishes the goal of forcing the executive to consult with Congress, while avoiding the potential pitfalls of unconstitutionality, inartful drafting, and presidential disregard.
Jonathan T. Menitove,
Once More Unto the Breach: American War Power and a Second Legislative Attempt to Ensure Congressional Input,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol43/iss3/6