Analyzing War Powers: Ways Forward (Part 3)

Despite the lack of constitutional amendments with respect to war powers, there are two inescapable legal changes that must be kept in mind when analyzing questions of war powers in the present. Along the pathway pioneered by Bruce Ackerman, one might call them “amendment-level.” The first is that the United States has global responsibilities (along with the ability to project power) it did not have in the eighteenth and nineteenth centuries, not only because the foreign policy landscape is different but because of duly ratified treaties and other agreements that are their de facto equivalent. The second is that the War Powers Resolution (WPR) is, as a prominent scholar recently reminded us, “binding law,” and, by its terms and purpose, remains a cutoff point for the legal relevance of historical executive practice. In other words, although this has never been acknowledged by executive branch lawyers, it reset the table with respect not only to executive-legislative relations but with…