What’s Wrong with the War Powers Debate (Part 2)

It has been difficult for participants in the war powers debate to describe accurately the legal status quo. Is the WPR’s constitutionality in dispute? If it is constitutional, does it play a meaningful role? Are AUMFs the constitutional equivalent of declarations of war? What does the Constitution require in the context of the national security state built after WWII? What is the legal position of the executive branch as represented in OLC opinions? And so on. To make progress in this fraught area, we need to think differently about the way the Constitution is enforced. It is not only enforced through the judiciary. The other institutions responsible for enforcing the Constitution, including political parties, do not enforce it all in the same way. The political branches deserve that name because they do not necessarily follow a juridical model. For example, they do not necessarily rely on or pay much attention to common law reasoning based on exemplar cases or historical practice.…