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1. The War Powers Act Cheney, Vice Presidential Power and the War on Terror Joel K. GoldsteinSaint Louis University - School of Law2009APSA 2009 Toronto Meeting Paper Abstract: It is generally conceded that Vice President Cheney has been our most influential vice president. During his two terms, the office assumed a significance which his predecessors, even those who themselves were quite significant, would not have thought possible. Whereas historically the vice presidency had been dismissed as too feeble, the Cheney vice presidency was attacked as too robust. The unprecedented power of Cheney as vice president had many sources. One of them was the war on terror. It, of course, assumed an unexpected prominence after 9/11, and the war on terror contributed to Cheney’s ascendance and provided the political theatre in which his unique vice presidential role was performed. The war on terror allowed for an expansion of executive power generally in a manner which extended presidential power beyond its normal sphere even while the vice presidency itself occupied a larger space in the executive branch. The Cheney vice presidency avoided many of the constraints which presidential leadership normally imposes as well as those forms of accountability which are rooted in the political system. Moreover, normal patterns of vice-presidential self-restraint often seemed absent, perhaps related to the other two developments. The patterns of the Cheney tenure are unlikely to become permanent, rooted as they were in a distinctive set of circumstances. It is hard to imagine another president allowing the vice president such latitude, another vice president flexing such muscle, or circumstances occurring which were so conducive to so expansive a vice-presidential role. Nonetheless, the Cheney tenure provides yet another model of vice-presidential conduct and furnishes a case study against which to test certain ideas about the vice presidency in particular and concepts about the institutional design of American government more generally. Going to War…. HOW WAR POWERS ACT WORKS The New York Times Published: March 29, 1984 WASHINGTON, March 28 The War Powers Act of 1973, passed in the aftermath of the Vietnam War, puts limits on the ability of the President to send American troops into combat areas without Congressional approval. Under the act, the President can only send combat troops into battle or into areas where ''imminent'' hostilities are likely, for 60 days without either a declaration of war by Congress or a specific Congressional mandate. The President can extend the time the troops are in the combat area for 30 extra days, without Congressional approval, for a total of 90 days. The act, however, does not specify what Congress can do if the President refuses to comply with the act. Congress could presumably suspend all funds for such troops and override a Presidential veto. http://www.nytimes.com/1984/03/29/world/how-war-powers-act-works.html America: The President and War Powers President Franklin D. Roosevelt delivers the 'Day of Infamy' speech to a joint session of Congress on December 8, 1941, the day after Japan attacked Pearl Harbor. [FDR Library, National Archives] War Powers of President The Constitution divides war powers between the Congress and the President.  This division was intended by the framers to ensure that wars would not be entered into easily: it takes two keys, not one, to start the engine of war.  The Constitution's division of powers leaves the President with some exclusive powers as Commander-in-Chief (such as decisions on the field of battle), Congress with certain other exclusive powers (such as the ability to declare war and appropriate dollars to support the war effort), and a sort of "twilight zone" of concurrent powers.  In the zone of concurrent powers, the Congress might effectively limit presidential power, but in the absence of express congressional limitations the President is free to act.  Although on paper it might appear that the powers of Congress with respect to war are more dominant, the reality is that Presidential power has been more important--in part due to the modern need for quick responses to foreign threats and in part due to the many-headed nature of Congress. The War Powers Act and the War on Terror The War Powers Act http://www.thecre.com/fedlaw/legal22/warpow.htm Author: Alton Frye, Presidential Senior Fellow Emeritus April 17, 2002 Congress’s stand on how our nation uses the mighty arsenal at its disposal also bears crucially on America’s standing in the world. Even among our closest allies, American power elicits mixed emotions: awe and fear, respect and anxiety. That should surprise no one. Military and economic capabilities of the magnitude America possesses cannot fail to cause alarm in other countries, however benign our intentions. That alarm is heightened to the degree that American force appears to be too easily deployed. In the eyes of others, no less than of our own citizens, American military action may be seen as most legitimate when it is demonstrably subject to democratic governance. This insight is akin to Justice Jackson’s memorable formulation that the President’s power is at its maximum only when he acts “pursuant to an explicit or implied authorization of Congress.” There is thus an enduring necessity to balance executive potency in military endeavors with the legislative review that provides democratic legitimacy. The challenge is not to enchain the presidency but to harness both branches to common purpose. On that insight the War Powers Resolution was founded, and in that insight may be found the germ of other innovations to guarantee that Congress will play its proper constitutional role in the war on terrorism. http://www.cfr.org/publication/4514/applying_the_war_powers_resolution_to_the_war_on_terrorism.html http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1450601 http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/warandtreaty.htm http://americanhistory.about.com/library/timelines/bltimelineuswars.htm http://www.animatedatlas.com/timeline.html

2. ARTICLE 1, SECTION 8 The Congress shall have Power: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;  To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;  To provide and maintain a Navy;  To make Rules for the Government and Regulation of the land and naval Forces;  To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;  To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.... ARTICLE 1, SECTION 9 The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it. ARTICLE II, SECTION 2 The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States.... He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.... President Bush Declares “War on Terror” September 20, 2009 02:00 AM Citation By: findingDulcinea Staff. "On This Day: President Bush Declares “War on Terror”.” September 20, 2009. On Sept. 20, 2001, President Bush delivered an inspirational speech to America that rallied support for the “War on Terror,” which would eventually lead to the wars in Iraq and Afghanistan. http://www.findingdulcinea.com/news/on-this-day/September-October-08/On-this-Day--President-Bush-Declares--War-on-Terror-.html The Supreme Court has had relatively little to say about the Constitution's war powers.  Many interesting legal questions--such as the constitutionality of the "police action" in Korea or the "undeclared war" in Viet Nam--were never decided by the Court.  (Although the Supreme Court had three opportunities to decide the constitutionality of the war in Viet Nam, it passed on each one.)