WAR AND RESPONSIBILITY: A SYMPOSIUM ON CONGRESS, THE PRESIDENT, AND THE AUTHORITY TO INITIATE HOSTILITIES: 'Little Wars' and the Constitution

I. Introduction It is an honor to be invited to this symposium to discuss John Hart Ely's great book, which focuses our attention on the central constitutional war powers issues. To speak after three distinguished speakers gives me both an opportunity and a problem. I've prepared a talk, yet the people who have spoken before waved what to me were red flags. I have many attributes of a bull and I can't resist the temptation to charge. My topic for today's panel is whether the Constitution permits the President to engage in "little wars" - small military interventions and quick strikes, such as the Libyan bombing, the Grenada and Panama invasions, and the recent bloodless invasion of Haiti - without first obtaining congressional approval. Professor Ely has given us a convincing framework for analyzing that question and has proposed a reasonable and sensible solution that would restrain the Executive's penchant for unilaterally initiating military actions: A Proposed Combat Authorization Act. 1 But as Professor Ely recognizes, such an Act is unlikely to become law anytime soon. The fundamental reason that Professor Ely's excellent suggestions will not be celebrated in Washington in the twentieth century has to do with the red flags that both Harold Koh and Abraham Sofaer waved at me, flagging the connection between legal process and the substance of our national security policy. John Ely, Harold Koh, and Michael Glennon have all provided excellent critiques of post-World War II unilateral warmaking by the Executive branch, and ...