Catholic University Law Review


Brendan Flynn


The Constitution divides the war powers between Congress, which declares war, and the President, who serves as Commander-in-Chief of the Armed Forces. Since the Korean War, the President has claimed increased authority to send the military into harm’s way without Congressional authorization. ­This Comment surveys the war powers issue through U.S. history and asserts that the President’s claim of increased authority has been enabled by Congressional abdication of its role, leading to­­ wars fought in a legal­­ “zone of twilight” in which Congress has neither authorized nor forbidden Presidential action (drawing on Justice Jackson’s famous tripartite analysis in his Youngstown concurrence). The Comment argues that the approach taken by Congress to reassert its role in the War Powers Resolution of 1973 has largely failed. The Comment analyzes the War Powers Consultation Act, a new proposal to replace the War Powers Resolution, and concludes that the War Powers Consultation Act would do a better job of forcing Congress to have an up-or-down vote on military action, thus preventing wars fought in the “zone of twilight.” The Comment also points out two major loopholes through which clever executive branch lawyers could still assert executive primacy, and suggests amendments that might prevent such executive overreach.