War Powers Act

[Sean Wilson]

Steve:
 
These are certainly well-taken points. But a couple of replies:
 
1. All I would ask is that whatever calculus one uses to say something is "unconstitutional," that it remain consistent down the line. If you take a result-oriented approach and say nuclear weapons and torture is different because it is morally catastrophic, then we could live with a separation of powers regime in the non-catastrophic decisions. These would be ordinary decisions of war -- miranda, a 60-day limitation, whether to use special forces, whether to use mercenaries, fight with a massive force structure or just counterfource, etc. Perhaps such a rule could be called the "catastrophic decision" rule. I might find this agreeable.
 
2. On the point of the framers, you are correct that policy expectations cannot have any meaningful correlation today whatsoever. But I do not believe that "icon theory" is a valid way to translate constitutional ideas. The fact of the matter is that most of what the framers created intellectually, they either borrowed or created by accident. There was no constitutional system of government before America birthed it. American constitutionalism in this sense is sort of like a "garage band" that made it (very) big. The correct way to understand the document is to understand its genre. It is not a parliamentary system (which is a different kind of music, if I were to continue with this ridiculous metaphor). The CIC power is a managerial power specifically delegated to the president. Congress does not possess the power to write laws for any subject it wishes. This is the engine that the framers built, no matter what policy expectations either they or their generation had.      
     
 
Regards.
 
Dr. Sean Wilson, Esq. 
Penn State University
Website: http://ludwig.squarespace.com/home/
Email discussion group:  http://groups.yahoo.com/group/TheLudwigGroup 
SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/


 
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