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St. Mary's Law Journal

Authors

Adam Heder

Abstract

Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at the outset of a war either by refusing to authorize war or by limiting its authorization of war. Though some might argue this list is too short and limited, the text of the Constitution and subsequent case law simply do not give any other explicit powers to Congress. Declaring these issues nonjusticiable political questions would be the most practical means of balancing the textual and historical demands, the structural demands, and the practical demands that complex modern warfare brings. Adjudicating these matters, however, would only lead the courts to engage in impermissible line drawing that would both confuse the issue and add layers to the text of the Constitution, which the Framers themselves declined to do. If Congress does not want to go through the process of cutting off funds for the war, dissolving the army, or impeaching the President, it may resort only to politics to end a war.

Publisher

St. Mary's University School of Law

COinS