Clear Statement Rules and Executive War Powers

Authors

Curtis A. Bradley, Duke Law SchoolFollow

Document Type

Article

Publication Date

2010

Keywords

executive war powers, Youngstown

Abstract

This article is based on a presentation at the Annual Federalist Society National Student Symposium on Law and Public Policy that explored the theme of separation of powers in American constitutionalism.

The scope of the President’s independent war powers is notoriously unclear, and courts are understandably reluctant to issue constitutional rulings that might deprive the federal government as a whole of the flexibility needed to respond to crises. As a result, courts often look for signs that Congress has either supported or opposed the President’s actions and rest their decisions on statutory grounds. There have been both liberal and conservative claims about the potential role of a clear statement requirement in the context of executive war powers. The author concludes that what this analysis ultimately suggests is that deciding issues of executive war powers requires contextual and pragmatic judgment rather than resort to abstract classifications, whether they are liberal or conservative in character, something that Justice Jackson recognized in his justifiably famous 'Youngstown' concurrence.

Citation

Curtis A. Bradley, Clear Statement Rules and Executive War Powers, 33 Harvard Journal of Law & Public Policy 139-148 (2010)