Throughout history, presidents and congresses have jockeyed for control over war powers. Article I of the Constitution grants Congress the exclusive authority to declare war, while Article II names the President as “Commander in Chief” of the army, navy and militia. The jockeying reached a watershed moment of congressional assertiveness with the passage of the 1973 War Powers Act. Since then, however, presidential war-making power has been in a state of near-constant expansion—an expansion only accelerated by overseas counterterrorism actions and recent presidential military actions in Libya and Syria.
Latest in War Powers
The war powers report for calendar year 2022 clarifies a potential discrepancy in the U.S.’s perspective on the use of force in Afghanistan under international law.
An obscure counterterrorism authority has been used to create and control proxy forces throughout the war on terror—its use across Africa and Asia points to broader interpretations of the 2001 AUMF and the president’s inherent authority to use force than previously disclosed.
In Torres v. Texas Dep’t of Public Safety, the Court held that private suits against states are authorized under Congress’s war powers, carving out a new structural waiver exception to state sovereign immunity.
According to the report, the U.S. exercised military force in Afghanistan, Iraq, Syria and Somalia in 2021.
In the event of an armed attack, the United States “reserves the right to determine for itself what military action, if any, is appropriate.”
The Torres decision will not only determine if protections are available to hundreds of thousands of veterans against employment discrimination but also could have broader ramifications for the war powers doctrine and/or the state sovereign immunity doctrine.
On this day in 1918, the Supreme Court unanimously upheld the constitutionality of a national draft. That ruling illustrates how military powers in the Constitution have continuously adapted throughout American history to changes in warfare.
The memo provides the legal rationale behind the controversial January 2, 2020, drone strike that killed Major General Qassem Soleimani of Iran’s Islamic Revolutionary Guard Corps and several leaders of the militia Kata’ib Hezbollah while in Baghdad, Iraq.
Current congressional action related to the possible repeal of outdated force authorizations against Iraq will do little to affect the executive branch’s use of military force behavior in the region.
On April 4, the Biden administration released the