• About
  • Contact
  • Staff

Law & Liberty

A Project of Liberty Fund

  • Home
  • Blog
  • Liberty Law Forum
  • Podcasts
  • Book Reviews

September 9, 2013|Marty Lederman, The Declare War Power, The Power to initiate a War, The UN Charter

The Legality of an American Attack in Syria

by Mike Rappaport|3 Comments

Jason Clarke and Andria Blackman in Chappaquiddick.

While I have viewed the matter through an originalist lens, others adopt different approaches. One prominent commentator, Marty Lederman, has an important explanation of the issues based on a conventional nonoriginalist perspective in these two posts. Here is an excerpt:

In the past two generations, there have been three principal schools of thought on the question of the President’s power to initiate the use of force . . . without congressional authorization:

a. The traditional view, perhaps best articulated in Chapter One of John Hart Ely’s War and Responsibility, is that except in a small category of cases where the President does not have time to wait for Congress before acting to interdict an attack on the United States, the President must always obtain ex ante congressional authorization, for any use of military force abroad. That view has numerous adherents, and a rich historical pedigree. But whatever its merits, it has not carried the day for many decades in terms of U.S. practice.

b. At the other extreme is the view articulated at pages 7-9 of the October 2003 OLC opinion on war in Iraq, signed by Jay Bybee (which was based upon memos written by his Deputy, John Yoo). The Bybee/Yoo position is that there are virtually no limits whatsoever: The President can take the Nation into full-fledged, extended war without congressional approval, as President Truman did in Korea, as long as he does so in order to advance the “national security interests of the United States.” With the possible exception of Korea itself, this theory has never reflected U.S. practice. . . .

c. Between these two categorical views is what I like to call the Clinton/Obama “third way”—a theory that has in effect governed, or at least described, U.S. practice for the past several decades. . . . The gist of this middle-ground view (this is my characterization of it) is that the President can act unilaterally if two conditions are met: (i) the use of force must serve significant national interests that have historically supported such unilateral actions—of which self-defense and protection of U.S. nationals have been the most commonly invoked; and (ii) the operation cannot be anticipated to be “sufficiently extensive in ‘nature, scope, and duration’ to constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause.”

As I have said before, I believe that the original meaning is similar to the traditional Ely view.

Lederman largely comes to the conclusion in this essay that a congressional declaration is needed under the practice, on the grounds that the practice has allowed unilateral presidential use of force only “in the service of significant national interests that have historically supported such unilateral actions—such as self-defense, protection of U.S. nationals, and/or support of U.N. peacekeeping or other Security Council-approved endeavors and mandates (e.g., Bosnia and Libya).”

Read More

Book Reviews

John C. Calhoun, Madisonian Manqué

by Thomas W. Merrill

His institutional innovations were geared toward preserving slavery.

Read More

The Road to Iranian Democracy

by Luma Simms

The suppression of the Green Movement last time around widened the gulf between Iran's elite and its people.

Read More

Podcasts

The Solid Ground of Mere Civility: A Conversation with Teresa Bejan

A discussion with Teresa M. Bejan

Teresa Bejan discusses with us how early modern debates over religious toleration are an example of how we can disagree well.

Read More

Leading a Worthy Life in a Scattered Time: A Conversation with Leon Kass

A discussion with Leon Kass

Leon Kass discusses Leading a Worthy Life.

Read More

Eric Voegelin Studies: A Conversation with Charles Embry

A discussion with Charles Embry

What did "Don't immanentize the eschaton!" really mean? An intro podcast on the formidable mind of Eric Voegelin.

Read More

Republican Virtue, Interrupted: A Conversation with Frank Buckley

A discussion with F.H. Buckley

The real conflict in our politics centers on reforming massive levels of public corruption.

Read More

About

Law and Liberty’s focus is on the content, status, and development of law in the context of republican and limited government and the ways that liberty and law and law and liberty mutually reinforce the other. This site brings together serious debate, commentary, essays, book reviews, interviews, and educational material in a commitment to the first principles of law in a free society. Law and Liberty considers a range of foundational and contemporary legal issues, legal philosophy, and pedagogy.

  • Home
  • About
  • Staff
  • Contact
  • Archive

Apple App Store
Google Play Store

© 2018 Liberty Fund, Inc.

Subscribe
Get Law and Liberty's latest content delivered to you daily
  • This field is for validation purposes and should be left unchanged.
No thanks