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Symposium: Law and (Disciplinary) Order: A Dialogue about Louis Fisher, Constitutionalism, and Political Science
Lou Fisher's prolific writings on the war power--the constitutional repository of authority to initiate war and lesser military hostilities on behalf of the American people--have informed and, for the better part of four decades, shaped discussions and debates on the respective roles of Congress and the president, from the halls of academe to the corridors of power. Widely cited and invoked on hundreds of occasions by political scientists, historians, and legal academics, his work has opened doors for serious consideration of his views by representatives in all three branches of the federal government. It has, as well, established his place in the front-rank of constitutional scholars and, almost certainly, earned for his scholarship an enduring influence on discussions about the constitutional authority to order the use of military force.
Fisher's thesis is clear and convincing. The War Clause of the Constitution, which provides that "Congress shall have Power ... To declare War," vests in Congress the sole and exclusive authority to initiate all military hostilities on behalf of the American people (Art. I, Sec. 8). The president, in his capacity as commander in chief, has the authority to repel invasions of the United States, and the power to conduct war once declared or otherwise authorized by Congress, but possesses no constitutional power to authorize the use of force. Until 1950, no president had asserted a unilateral executive power to initiate war. Beginning, however, with Harry Truman's decision to deploy troops to Korea--without congressional authorization--every president except Dwight Eisenhower has laid claim to a presidential war power. As a result, Americans have witnessed, for the past half century, a string of presidential wars in direct violation of the War Clause of the Constitution. As Fisher has written, "[t]he drift of the war power from Congress to the President after World War II is unmistakable" (Fisher 2004, 261).
Fisher's penetrating analysis of the purported legal bases of executive war making, including his examination of textual assertions of a presidential power to initiate military hostilities, have thoroughly discredited executive branch efforts to circumvent congressional authorization--the sine qua non for the constitutional use of force. Thus, the president has...