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Dehn on the Commander-in-Chief Power & Authority to Wage War

By Lawrence Solum

John C. Dehn (United States Military Academy - Department of Law) has posted The Command-in-Chief and the Necessities of War: A Conceptual Framework on SSRN. Here is the abstract:

While claims of plenary presidential authority to wage war have been abandoned by the current administration, courts and scholars still debate the nature and scope of the powers conferred by the September 18, 2001 Authorization for the Use of Military Force. This article examines Supreme Court precedent to extract the general nature of the Executive?s powers to fight the nation?s international and non-international armed conflicts. This necessarily includes a brief review the separation of powers over the nation?s general and limited ?wars? and the armed forces fighting them. It concludes that the Supreme Court has expressly endorsed two concepts of necessity attributable to the Commander-in-Chief power. The first is military necessity; the power to employ all military measures not prohibited by applicable law and reasonably calculated to defeat a national enemy. Precedent is quite clear that applicable law in this context includes relevant domestic and international law. Military necessity also encompasses a second type of necessity, that of public necessity. The public necessity doctrine applicable in war is analogous to the common law tort doctrine. However, precedent reveals that in armed conflict public necessity permits the abrogation of private, general statutory and some constitutional rights under sufficiently exigent circumstances. A third necessity related to war that has been theorized but never clearly addressed by the courts is an alleged presidential power to take all actions necessary to counter an imminent threat to the nation?s existence. This is best understood as an extreme form of public necessity, something here termed ?governmental necessity.? This article distills and relates these three forms of necessity to explain how they inform the President?s constitutional powers to conduct the nation?s armed conflicts.

Full post as published by Legal Theory Blog on January 22, 2010 (boomark / email).