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.
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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.
As President Trump goes into this week’s NATO summit complaining about burden-sharing, amid inflamed anxieties at home about presidential powers over foreign relations, it is worth remembering the “Great Debate” of the early 1950s. That dispute pitted President Harry Truman and Secretary of State Dean Acheson against congressional NATO skeptics, and it concerned whether the president could unilaterally deploy four additional U.S. Army divisions to Western Europe.
The White House has released the following text of a letter sent to the speaker of the House and president pro tempore of the Senate to serve as notice of military engagement in Syria on April 13, consistent with Section 4(1) of the War Powers Resolution.
Dear Mr. Speaker: (Dear Mr. President:)
On Friday night, the United States, United Kingdom, and France launched a coordinated attack in Syria, reportedly aimed at sites related to Syria’s chemical weapons program.
The Senate Foreign Relations Committee is holding a hearing Wednesday morning at 9:30 a.m. on "Using Force: Strategic, Political, and Legal Considerations." The committee will hear testimony from the following witnesses:
Early Sunday evening, a US Navy F/A-18 Super Hornet shot down a Syrian Air Force Su-22 that had just completed a bombing run targeting US-backed Syrian Democratic Forces (SDF) in the Raqqa region. The episode raises important questions under the U.N. Charter (see Adil Ahmad Haque’s analysis here). But what about U.S. domestic law?
A White House’s responsibility to explain the legal basis for military actions such as the Syria missile strikes is dangerously undefined. This is not a problem unique to the Trump Administration. Nor do the differences between administrations in the choice, the structure, or timing of transparency fall out exclusively among party lines. What has emerged is a transparency regime shaped largely by broad discretion and perceived political necessity.
With six hours to spare before the 48-hour deadline in section 4 of the War Powers Resolution, the White House has sent the President's report to Congress on Thursday evening's missile attacks on Syria.
The text is here:
THE WHITE HOUSE
Last week, U.S. Army Captain Nathan Michael Smith sued the U.S. Government in federal court, seeking a declaration that Obama’s war against ISIS is illegal. Jack Goldsmith and Marty Lederman have put forward competing views over whether this lawsuit is a big deal.