Four Wrongs Don't Make a Right: Framing, Ratifying, and Historical Evidence Shows Congressional Abdication under the War Powers Resolution to Be Unconstitutional
![handle is hein.journals/jlpma1 and id is 73 raw text is:
71 JOURNAL OF LAW, POLICY & MILITARYAFFAIRS Vol. ]
FOUR WRONGS DON'T MAKE A RIGHT: FRAMING,
RATIFYING, AND HISTORICAL EVIDENCE SHOWS
CONGRESSIONAL ABDICATION UNDER THE WAR
POWERS RESOLUTION TO BE UNCONSTITUTIONAL
Dane L. Stuh1satz, Esq.*
ABSTRACT: The War Powers Resolution (WPR) was motivated, at least in
part, by a desire to assert Congress' authority to check the president's ability to
commit the United States to war. But the WPR was as unnecessary as it has
been ineffectual. Instead, the WPR is an unconstitutional answer to a long
history of unconstitutional wars.
The framers and ratifiers intended the Declare War Clause of Article I
of the Constitution to be all Congress needed to check executive power when it
came to engaging the nation in war. However, due to perceived ambiguities in
the Declare War Clause, and a history of presidents pushing the constitutional
bounds of executive power related to war making, Congress passed the WPR to
reclaim its constitutional powers over war.
This paper argues that the framers and ratifiers of the founding
generation were clear that the Declare War Clause was intended to act as a
check on the executive branch against rushing the nation into war. And, to the
extent any ambiguity needs to be cleared up, especially in the face of a long
history of presidential usurpations of Congress' power to commence war, an
Article V amendment is the proper vehicle-not the WPR.
No nation could preserve its freedom in the
midst of continual warfare.
- James Madison
TABLE OF CONTENTS
I. Introduction
II. Background
A. History of Debate and Passage of the War Powers
Resolution
B. Supporters of Executive Authority over War-Making
Appeal to History
III. Analysis
A. Textual and Originalism
1. Declare War is Unclear Based on the Text Alone
Constitutional Law Fellow, Institute for Justice. A special thank you to my grandmother,
Carol Hrdlicka, and my mother, Denise Hrdlicka-Tarrant, whose unwavering love for their husband,
and father, Col. David L. Hrdlicka, has served as my example of the enduring power of love and the
human spirit. Their example has provided me the foundation of principled purpose on which I will
build my career. My grandfather was one of many victims of unconstitutional wars. By contributing
to this discussion I hope to honor his memory and prevent other U.S. service personnel and their
families from suffering a similar fate. I would also like to thank Professor Elizabeth Price Foley who
helped crystallize my understanding of, and commitment to defending, the original intent of the
Constitution and what the founding generation who ratified it understood it to mean.](ViewImageLocal?handle=hein.journals/jlpma1&div=6&collection=&method=preview&ext=.png&size=3)
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