Draft:War Powers: The Politics of Constitutional Authority

War Powers: The Politics of Constitutional Authority

Author	Mariah Zeisberg
Language	English
Subject	Constitution of the United States, President of the United States, constitutional authority, war-making, war powers
Genre	Non-fiction
Publisher	Princeton University Press
Publication date	2013
Publication place	United States
Pages	276
Awards	Richard E. Neustadt Prize (2014)
ISBN	978-0-691-15722-1

War Powers: The Politics of Constitutional Authority is a 2013 book by Mariah Zeisberg that delves into the complex and often contentious issue of war powers in the United States. The book explores the constitutional distribution of war-making authority between the President and Congress, arguing against the simplistic notion that the Constitution provides a clear resolution to this debate. Zeisberg, a political scientist, introduces a novel framework called the "relational conception" to evaluate the constitutional authority of various military actions.

Overview

The book is a comprehensive examination of the ongoing debate over which branch of the U.S. government—the executive or the legislative—holds the constitutional authority to initiate armed conflict. Zeisberg contends that the Constitution does not offer a clear legal answer to this question but instead sets up a framework for constitutional politics, allowing each branch to assert its authority based on the context of the times.

Zeisberg argues that, especially since World War II, decisions on war powers have been shaped more by political considerations, historical precedents, and interbranch deliberations than by strict constitutional or judicial interpretations. She posits that both the president and Congress can provide reasonable constitutional arguments for their actions depending on the circumstances, which creates a dynamic and evolving understanding of war powers.

Throughout the book, Zeisberg highlights key historical moments and presidential decisions, such as Truman's engagement in the Korean War and subsequent actions by Clinton and Obama, to illustrate how executive decisions have shaped and been shaped by constitutional politics. She emphasizes that presidential military initiatives often gain constitutional legitimacy through congressional and public support, thereby reinforcing the president's authority.

Zeisberg also critiques existing scholarly approaches to the war powers debate, categorizing them into "pro-presidency insularism" and "pro-Congress insularism." She challenges these perspectives by proposing a relational conception of war authority, which considers the constitutional roles and deliberative processes of both branches.

The book includes detailed case studies of historical conflicts, such as the Mexican War and World War II, to demonstrate how the executive and legislative branches have interacted and negotiated their respective powers. Zeisberg concludes that these interbranch conflicts and negotiations contribute to a robust constitutional politics that does not rely on judicial intervention.

Relational conception

Zeisberg's relational conception includes:

• Substantive Standards: These focus on the effectiveness of the President in national defense and the exercise of Congress's war-related powers.
• Processual Standards: These emphasize independent judgment and interbranch deliberation.

The book applies these standards to various historical case studies, ranging from the Mexican War to the Iran-Contra investigation, to illustrate how the relational conception can be used to assess the constitutional authority of military actions.

Reviews and critical reception

In his review, Benjamin J. Keele stressed Zeisberg's argument against the settlement thesis, which claims the Constitution clearly dictates the distribution of war powers. Instead, Zeisberg proposed the relational conception, with substantive and processualist standards, to assess the constitutional authority of military actions. "Zeisberg makes a persuasive case that the Constitution does not precisely dictate each branch’s war powers and assigning these powers will inevitably be political" writes Keele. He also highlighted the book's valuable case studies, detailed historical descriptions, and extensive footnotes but mentioned the absence of a bibliography.

Bruce Peabody of Fairleigh Dickinson University praised its innovative thesis that challenges the traditional settlement approach to constitutional war powers. Peabody stressed the author's relational model for its fluency in engaging with a wide-ranging scholarly literature. Peabody found Zeisberg compelling in her critique of Congress's underappreciated role in shaping war policies and highlighted her view that the relational approach moves beyond "rule-bound decision-making" models. He noted, however, that some aspects, such as the notion of "constitutional authority," needed further clarification and elaboration, asking, "What is constitutional authority, exactly?"

Kimberley L. Fletcher praised the book for its thorough historical and contemporary analysis of the war powers debate between the executive and legislative branches. Fletcher highlighted Zeisberg's argument that the Constitution created a political framework rather than offering clear legal answers on war authority, and how interbranch deliberation shaped constitutional politics. Despite some criticisms regarding the omission of certain judicial decisions and the placement of settlement theory discussion, Fletcher considered the book an essential and ambitious contribution to understanding constitutional politics and the war powers debate.

In his review of the work, Joseph Margulies from Cornell University, discussed its exploration of the constitutional distribution of war powers between the executive and legislative branches. Margulies noted that Zeisberg scrutinized the Constitution's language and structure and assessed the branches' governance capacities through historical case studies. He acknowledged that Zeisberg aimed to provide "common terms for deliberation" rather than definitive answers, ultimately concluding that while the book offers a new perspective, it "does nothing to dislodge the conviction shared by so many scholars" that war powers are inherently political.

The Boston University Law Review's Symposium

The Boston University Law Review published a symposium on Stephen M. Griffin’s "Long Wars and the Constitution" and Mariah Zeisberg’s "War Powers: The Politics of Constitutional Authority." Held on October 30, 2014, the symposium featured essays by Griffin and Zeisberg critiquing each other's work, alongside contributions from Boston University faculty. The event focused on the historical debate over the division of war powers between the President and Congress.

Griffin's essay

Griffin introduced his essay on Mariah Zeisberg’s book on war powers by expressing admiration for her innovative approach, which departs from the standard debate. He outlined his essay's structure, which would discuss the convergences and divergences between their theories, including a critique of the Hamiltonian defensive war theory. Griffin emphasized his respect for Zeisberg’s work and its future influence on scholarship, despite differences in their perspectives on presidential war powers post-1945.

Convergences

In his discussion of convergences with Zeisberg's work, Griffin critiqued the standard war powers debate, which focused heavily on presidential authority and congressional approval without considering the broader constitutional and historical context. He highlighted President Obama's 2014 military actions against ISIL as a case study, showing how the debate often overlooked the importance of interbranch deliberation and the political reality of presidential decisions made within a "security order." Griffin argued that Zeisberg's approach, which emphasized relational authority and processual standards, offered a more nuanced and historically grounded understanding of war powers.

Griffin further explored the limitations of the defensive war theory, tracing its development from early interpretations by figures like Alexander Hamilton and its application in historical contexts such as the Civil War and subsequent conflicts. He critiqued the rigid distinction between offensive and defensive wars, arguing that this binary was inadequate for understanding the complex decision-making processes involved in going to war. Instead, Griffin advocated for an approach that considered the strategic, policy-driven nature of war decisions and the necessity of interbranch collaboration as envisioned by the Constitution.

Divergences

In discussing divergences between his approach and Zeisberg's relational theory, Griffin highlighted the problematic nature of presidential war powers post-1945, citing ambiguous outcomes in conflicts such as Korea, Vietnam, Iraq, and Afghanistan. He questioned why major war decisions received less legislative scrutiny compared to significant domestic policies and critiqued the standard war powers debate for focusing too narrowly on congressional approval. Griffin suggested that the lack of genuine deliberation and the pro forma nature of congressional authorizations undermined the decision-making process, emphasizing the need to understand war powers within the broader historical and constitutional context.

Griffin also critiqued Zeisberg’s reluctance to engage with the eighteenth-century context of the Constitution's war clauses and argued that the post-1945 constitutional order had shifted, diminishing Congress's role in war decisions. He asserted that the executive branch's expanded capacities had led to a dominance that challenged the processual standards proposed by Zeisberg. Griffin advocated for a historicist approach to constitutional change, distinguishing between wars requiring congressional authorization and those where the president had pre-existing military capacity, and stressed the importance of meaningful interbranch deliberation to address contemporary war powers issues effectively.

Conclusion

In his conclusion, Griffin cited Robert Gates's memoir, "Duty," to underscore the unpredictable nature of war and the difficulty of exiting conflicts once they begin. Gates noted that political leaders often lose control once war starts and highlighted the executive branch's tendency to dismiss questions about exit strategies. Griffin emphasized that this tendency leads to prolonged conflicts and suggested that the American people deserve better decision-making in matters of war.

Prizes

War Powers won the 2014 Richard E. Neustadt Prize for the best book on executive politics, awarded by the American Political Science Association. The award committee included Andrew Rudalevige, Bert Rockman, Mark Peterson, Karen Hult, and Rod Hart.

Footnotes

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