Cornell Law Review Volume 93 Issue 1

Making War

Presidents have long initiated military conflict without specific congressional authorization. For large wars this practice extends at least as far back as the Korean War if not further, and for smaller conflicts the practice can be traced to the very first administrations. During the Vietnam War, academic critics turned to the original intent of the Constitution’s Framers to argue that this form of war making was illegal. This view became the governing consensus through the 1970s and 1980s and reached its culmination in books by John Hart Ely, Louis Fisher, Michael Glennon, and Harold Koh, among others. Simply put, these authors conclude that Congress’s power to “declare war” gives it the full and plenary authority to decide whether to initiate military hostilities abroad, except in cases of self-defense.

 

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