Undeclared War: Twilight Zone of Constitutional Power, by Edward Keynes

Abstract

During 20th century, this book contends, aggressive Presidents and supine Congresses have transformed President's constitutional authority to defend nation against attack into a virtually unlimited power to initiate undeclared war and military hostilities. New theories therefore are needed to guide Congress, President, and courts in future struggles over distribution of war powers. White House spokesmen since Truman administration have reiterated a constitutional theory that confers inherent power on President to dispatch and commit armed forces without congressional approval or consultation. This tendency was not reversed by congressional attempts to limit presidential warmaking following Vietnam War; it was encouraged by Federal courts' position in Vietnam cases that only prolonged, irreconcilable legislative-executive conflict should serve as an invitation to judicial intervention in war-powers controversies. A major feature of book is a thorough analysis of all legal challenges to President's conduct of Vietnam War. The Vietnam cases are examined in light of British constitutional history, framing, of American Constitution, and judicial decisions from 1800 through Korean War. This analysis furnishes basis for author's contention that Supreme Court has led nation into twilight zone of concurrent power-encouraging the legislature and executive to fuse their separate powers of war and defense into a national war power whose only standard is extraconstitutional one of success on battlefield. In modern era of guerrilla wars, national liberation movements, and police actions, author recognizes inadequacy of traditional distinctions between defensive and offensive wars upon which Framers of American Constitution divided congressional war powers from office of commander in Chief. Keynes concludes that, although courts can play a limited role in restraining presidential power to conduct undeclared war, only Congress can effectively limit President's conduct by insisting on a prior consensus regarding military intervention.