Latest in War Powers
Speaking at Brigham Young University, Defense Department General Counsel Paul Nye offered the most-detailed defense we have yet seen of the Soleimani airstrike, addressing both international and domestic law as well as the underlying facts.
Yesterday, Democratic Sen. Bob Menendez, the ranking member of the Senate Foreign Relations Committee, introduced a notable statement into the congressional record relating to S.J. Res. 68, the joint resolution on the use of military force against Iran that the Senate passed 55-45 on Feb. 13, 2020.
The outcome of the war—and the means necessary to achieve it—led to the war’s most noteworthy constitutional precedents.
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The Soleimani strike was likely within the president’s domestic legal authority to pursue. But in certain ways, it may push that authority’s limits.
The Millard Fillmore administration’s diplomatic machinations toward Hawaii are a curious example of the executive branch regarding itself as constitutionally empowered to threaten war but constrained from unilaterally carrying out that threat.
Tomorrow is an ignominious anniversary. On that date in 1961, about 1,400 American-trained Cuban exiles launched a secret invasion of Cuba in an effort to overthrow the Fidel Castro regime. After landing on the island’s southern coast at the Bay of Pigs, the invading guerrillas were routed by government forces. The humiliating disaster gave rise to a rare, publicly available Justice Department analysis of presidential power to wage covert war.
On this date in 1955, President Dwight Eisenhower signed a congressional joint resolution authorizing military force to protect Formosa, as Taiwan was then called by the U.S. government, and surrounding islands. It’s one of the most interesting force authorizations in American history: It reflected Eisenhower’s complicated ambivalence toward constitutional powers, it was open-ended, it contemplated the possible use of nuclear weapons, and it was never actually invoked.
Few people today have ever heard of the Ludlow Amendment—a radical proposal that would have required a popular referendum before Congress could declare war and which lost a critical House vote on this date in 1938. The proposal was the closest the United States ever came to formally amending the Constitution’s allocation of war powers, and it would have revised them in exactly the opposite direction in which their interpretation has evolved in practice since the amendment’s defeat.
In the spring of 2001, Bill Barr, the former attorney general under George H.W. Bush who has now been tapped to resume that role under Donald Trump, sat for an oral history interview sponsored by the University of Virginia’s Miller Center.