Restoring the Balance: War Powers in an Age of Terror

The United States' War on Terror lacks identifiable enemies and obvious front lines. It is fought on the battlefields of Iraq and Afghanistan by conventional military forces, in the deserts of Yemen and mountains of Pakistan by Special Operations forces, in the detention centers of Guanta?namo Bay by lawyers, and on the domestic front by intelligence agencies. The tools used in this amorphous war have raised questions concerning the nature and scope of executive power, as well as about broader constitutional issues regarding the balance of presidential and legislative war powers. Given the distinctive and potentially endless nature of the War on Terror, it is vitally important to clarify and resolve these issues. Restoring the Balance: War Powers in an Age of Terror advances a theory of war powers that provides a framework for the effective and efficient conduct of the War on Terror. It argues that the constitutional grant of the power to declare war accorded Congress should be understood as the power to give the president extraordinary domestic legislative authority in order to defend the nation. In the absence of a declaration of war, then, Congress's legislative power provides a meaningful check on the ability of the president to alter domestic laws. Restoring the Balance challenges the conventional arguments on both sides of the debate over war powers, using constitutional theory, case law, and political precedent to provide a pragmatic, policy-based theory on the question of war powers in the age of international terror. Casting the "declare war" clause in a new light, it develops an original constitutional interpretation of the appropriate balance between presidential and congressional war powers. Author Seth Weinberger advances a novel understanding of the power to declare war, arguing that the president has broad inherent constitutional powers to deploy U.S. armed forces abroad without specific authorization from Congress. However, without such authorization the president is limited when taking actions that affect the legal status of persons within the United States itself. In short, Restoring the Balance demands that Congress recognize its constitutionally endowed responsibility and take a more substantial role in protecting domestic civil liberties and the fragile balance created by the Constitution.

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