President’s Authority to Conduct Military Operations Against Terrorists
191
William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re:
The President and the War Power: South Vietnam and the Cambodian Sanctuaries
(May 22, 1970) (the “Rehnquist Memo”). The President’s complete discretion in
exercising the Commander-in-Chief power has also been recognized by the courts.
In the Prize Cases, 67 U.S. (2 Black) 635, 670 (1862), for example, the Court
explained that, whether the President “in fulfilling his duties as Commander in-
Chief” had met with a situation justifying treating the southern States as belliger-
ents and instituting a blockade, was a question “to be decided by him”and which
the Court could not question, but must leave to “the political department of the
Government to which this power was entrusted.”
5
Some commentators have read the constitutional text differently. They argue
that the vesting of the power to declare war gives Congress the sole authority to
decide whether to make war.
6
5
See Prize Cases, 67 U.S. at 670 (“He must determine what degree of force the crisis demands.”);
see also Eisentrager, 339 U.S. at 789 (“Certainly it is not the function of the Judiciary to entertain
private litigation—even by a citizen—which challenges the legality, the wisdom, or the propriety of the
Commander-in-Chief in sending our armed forces abroad or to any particular region.”); Chicago &
Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103, 111 (1948) (“The President, both as
Commander-in-Chief and as the Nation’s organ for foreign affairs, has available intelligence services
whose reports are not and ought not to be published to the world. It would be intolerable that courts,
without the relevant information, should review and perhaps nullify actions of the Executive taken on
information properly held secret.”); Ramirez de Arellano v. Weinberger, 745 F.2d 1500, 1561 (D.C.
Cir. 1984) (Scalia, J., dissenting), vacated by 471 U.S. 1113 (1985); Ex parte Vallandigham,28 F. Cas.
874, 922 (C.C.S.D. Ohio 1863) (No. 16,816) (in acting “under this power where there is no express
legislative declaration, the president is guided solely by his own judgment and discretion”);
Hefleblower v. United States, 21 Ct. Cl. 228, 238 (Ct. Cl. 1886) (“The responsibility of declaring what
portions of the country were in insurrection and of declaring when the insurrection came to an end was
accorded to the President; when he declared a portion of the country to be in insurrection the judiciary
cannot try the issue and find the territory national; conversely, when the President declared the
insurrection at an end in any portion of the country, the judiciary cannot try the issue and find the
territory hostile.”);
cf. United States v. Chemical Found., Inc., 272 U.S. 1, 12 (1926) (“It was peculiarly
within the province of the Commander-in-Chief to know the facts and to determine what disposition
should be made of enemy properties in order effectively to carry on the war.”).
This view misreads the constitutional text and
6
See, e.g., Louis Fisher, Presidential War Power 185-206 (1995); John Hart Ely, War and Respon-
sibility: Constitutional Lessons of Vietnam and Its Aftermath 3-5 (1993); Michael J. Glennon,
Constitutional Diplomacy 80-84 (1990); Louis Henkin, Constitutionalism, Democracy, and Foreign
Affairs 109 (1990); Harold Hongju Koh, The National Security Constitution: Sharing Power After the
Iran-Contra Affair 158-61 (1990); Francis D. Wormuth & Edwin B. Firmage, To Chain the Dog of
War: The War Power of Congress in History and Law (2d ed. 1989).
Other scholars, however, have argued that the President has the constitutional authority to initiate
military hostilities without prior congressional authorization. See, e.g., Edward S. Corwin, The
President: Office and Powers 1787-1984 (5th ed. 1984); Philip Bobbitt, War Powers: An Essay on
John Hart Ely’s “War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath,” 92
Mich. L. Rev. 1364 (1994); Robert H. Bork, Erosion of the President’s Power in Foreign Affairs, 68
Wash. U.L.Q. 693 (1990); Henry P. Monaghan, Presidential War-Making, 50 B.U.L. Rev. 19 (1970);
W. Michael Reisman, Some Lessons from Iraq: International Law and Democratic Politics, 16 Yale J.
Int’l L. 203 (1991); Eugene V. Rostow, “Once More unto the Breach”: The War Powers Resolution
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