from Part IV - Separation of Powers (I)
Published online by Cambridge University Press: 22 May 2026
This chapter examines the Constitution’s allocation of war powers, arguing that the President’s commander-in-chief authority permits only defensive actions or congressionally authorized military engagements, not unilateral offensive actions. Congress holds extensive war-related powers, including declaring war, raising armies, and regulating the military, while the President’s role is limited to directing forces in existing wars or repelling sudden attacks. The chapter introduces the concept of “imperfect war” and analyzes early military conflicts. It critiques modern executive claims, used to justify the Obama and Trump administrations’ Libya and Syria bombings, that the President can initiate military actions short of “war” in the “national interest,” finding no textual basis for such authority. It argues that unilateral acts risking war, like bombing foreign forces, encroach on Congress’s war powers under the law of nations. Rejecting functionalist expansions of presidential power, the chapter advocates a formalist, originalist approach, emphasizing that the President is not above the law. Such a framework ensures a restrained presidency, preserving Congress’s primacy in war-making and maintaining the Constitution’s separation of powers.
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