Unchecked presidential wars

University of Pennsylvania Law Review

Volumn 148, Issue 5, 2000, Pages 1637-1672

  Fisher, Louis ^a  

^a Library of Congress ^*  (United States)

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EID: 26644454629     PISSN: 00419907     EISSN: None     Source Type: Journal    
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References (198)

1. See Louis Fisher, The Korean War: On What Legal Basis Did Truman Act?, 89 AM. J. INT'L L. 21, 21-22 (1995) (discussing whether Truman acted contrary to the Constitution).
2. See generally LOUIS FISHER, CONGRESSIONAL ABDICATION ON WAR AND SPENDING (forthcoming 2000).
3. THE FEDERALIST NO. 51, at 356 (James Madison) (Benjamin Fletcher Wright ed., 1961).
4. Id. at 355.
5. Id. at 356.
6. WOODROW WILSON, CONSTITUTIONAL GOVERNMENT IN THE UNITED STATES 56 (1908).
7. 1 JAMES BRYCE, THE AMERICAN COMMONWEALTH 29-30 (MacMillan 3d ed. 1908) (1893).
8. THE FEDERALIST NO. 47, at 337 (James Madison) (Benjamin Fletcher Wright ed., 1961).
9. See LOUIS FISHER, PRESIDENT AND CONGRESS 243-51 (1972) (arguing that Montesquieu based his model for separated powers on the British Constitution but was heavily criticized because the branches of the British government have been consistently linked).
10. OLIVER WENDELL, HOLMES, COLLECTED LEGAL PAPERS 263 (1920).
11. 1 BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS 158 (Thomas Nugent trans., 1949).
12. See id. at 156 (arguing that members of the legislative body should only be allowed to reject, and not resolve, legislation so that the interests of the people are not forgotten).
13. See id. at 159-60 ("If the prince (executive) were to have a part in the legislature by the power of resolving, liberty would be lost.").
14. "It is necessary that, by the nature of things, power check power." The French is taken from Montesquieu's collected works, 2 MONTESQUIEU, OEUVRES COMPLÉTES 395 (1951).
15. See 3 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS 1893, 1897, 1902, 1904, 1905 (Francis Newton Thorpe ed., 1909) [hereinafter Thorpe] (citing clauses from the Massachusetts Constitution concerning the separation among the branches of state government).
16. 4 Thorpe, supra note 15, at 2457 (quoting Article XXXVII of the New Hampshire Bill of Rights).
17. See 2 THE WRITINGS OF JAMES MADISON 328 (Gaillard Hunt ed., 1901) ("The limited powers now vested in Congress are frequently mismanaged from the want of such a distribution of them. What would be the case under an enlargement not only of the powers, but the number of federal Representatives?").
18. 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 35 (Max Farrand ed., 1911) [hereinafter Farrand].
19. See THE FEDERALIST NO. 48, at 343 (James Madison) (Benjamin Fletcher Wright ed., 1961) (arguing that an "adequate defense" is necessary to protect less powerful members of the government because the securities in the state constitutions are "greatly overrated").
20. 5 THE WRITINGS OF JAMES MADISON 26 (Gaillard Hunt ed., 1904).
21. THE FEDERALIST NO. 47, at 336-37 (James Madison) (Benjamin Fletcher Wright ed., 1961).
22. See id. at 337.
23. Id. at 338.
24. M.J.C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 153 (1967).
25. 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS: ON THE ADOPTION OF THE FEDERAL CONSTITUTION 280 (Jonathan Elliot ed., Phila., Lippincott 1836) [hereinafter Elliot].
26. 4 id. at 116.
27. PENNSYLVANIA AND THE FEDERAL CONSTITUTION, 1787-1788, at 475 (John Bach McMaster & Federal D. Stone eds., Lancaster, Pa., Inquirer 1888).
28. See id. at 476-77 ("[T]here is no liberty, if the power of judging be not separated from the legislative and executive powers.... There would be an end of everything, were the same man, or the same body of the nobles, or of the people, to exercise those three powers ...."(internal quotations omitted)).
29. EDWARD DUMBAULD, THE BILL OF RIGHTS AND WHAT IT MEANS TODAY 183 (1957) (quoting Amendments Proposed by Virginia Convention, June 27, 1788).
30. See id. at 174-75, 199 (citing Pennsylvania's proposed amendments that "the legislative, executive and judicial powers be kept separate;" citing North Carolina's proposed amendments that "the legislative executive and judiciary powers of government should be separate and distinct").
31. 1 ANNALS OF CONG. 435-36 (Joseph Gales ed., 1789).
32. 1 SENATE JOURNALS, 1788-1794, at 64, 73-74 (1820).
33. KENNETH CULP DAVIS, ADMINISTRATIVE LAW AND GOVERNMENT 36 (2d ed. 1975).
34. See PAUL EINZIG, THE CONTROL OF THE PURSE 57-62, 100-06 (1959) (discussing the events leading to Charles I's execution and, more generally, the monarchy's insistence on its divine right to levy taxation and the use of extra-parliamentary revenues, often at the objection of the Parliament).
35. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 570, at 410-11-61 (Carolina Academic Press, 1987) (1833).
36. THE FEDERALIST NO. 69, at 446 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961).
37. Letter from Thomas Jefferson to James Madison (Sept 6, 1789), in 5 THE WRITINGS OF THOMAS JEFFERSON 123 (Paul Leicester Ford ed., 1895).
38. James Madison, Letters of Helvidius, No. 1, GAZETTE OF THE UNITED STATES, Aug. 24, 1793,
39. reprinted in 6 THE WRITINGS OF JAMES MADISON 138, 148 (Gaillard Hunt ed., 1906).
40. 1 Farrand, supra note 18, at 139-40 (statement of George Mason in the Committee of the Whole on June 6, 1787).
41. JOHN LOCKE, TWO TREATISES OF CIVIL GOVERNMENT §§ 146-47, at 190 (London, J.M. Dent & Sons 1962) (1690) (listing the three branches of commonwealth government).
42. Id. § 146, at 191.
43. Id.
44. See 1 WILLIAM BLACKSTONE, COMMENTARIES *245-46, *249-52, *254-55, *257-58, *261-62 (discussing each of the royal prerogatives).
45. 1 Farrand, supra note 18, at 64-65 (statement of Charles Pinckney in the Committee of the Whole on June 1, 1787).
46. Id. at 65-66 (statement of James Wilson in the Committee of the Whole on June 1, 1787).
47. Id. at 66 (statement of Edmund Randolph in the Committee of the Whole on June 1, 1787).
48. Id.
49. Id. (statement of James Wilson).
50. See 2 Farrand, supra note 18, at 594 (§ 8), 599 (§ 2(a)).
51. Id. at 143 (Draft for Committee of Detail, IV).
52. Id. at 318 (statement of Charles Pinckney in Convention on Aug. 17, 1787).
53. Id. (statement of James Madison and Elbridge Gerry in Convention on Aug. 17, 1787).
54. See id. at 319 (noting the passage of the motion to change "make" to "declare" war by a vote of seven to two with one abstention).
55. 5 THE COLLECTED PAPERS OF JOHN BASSETT MOORE 196 (1944).
56. 2 Farrand, supra note 18, at 319 (statement of George Mason in opposition to Pierce Butler made in Convention on Aug. 17, 1787).
57. Id. at 318-19 (statements of various named delegates in Proceedings in Committee of the Whole on Aug. 17, 1787).
58. 2 Elliot, supra note 25, at 528.
59. See 4 id. at 107, 287 (containing statements by James Iredell and Charles Pinckney echoing Wilson's reliance on checks and balances to guard against war).
60. U.S. CONST. art. I, § 8, cl. 11.
61. Thomas Jefferson, Opinion on "The Little Sarah" (May 16, 1793), in 6 THE WRITINGS OF THOMAS JEFFERSON, supra note 37, at 257, 259.
62. Thomas Jefferson, Opinion on "The Little Sarah" 1793, 6 THE WRITINGS OF THOMAS JEFFERSON, Id. 257.
63. Letter from Alexander Hamilton to James McHenry (May 17, 1798), in 21 THE PAPERS OF ALEXANDER HAMILTON 461-62 (Harold C. Syrett ed., 1974).
64. U.S. CONST. art. I, § 8, cl. 10.
65. 1 WILLIAM BLACKSTONE, COMMENTARIES *43.
66. 1 Farrand, supra note 18, at 316 (statement of James Madison in Committee of the Whole on the Propositions of Mr. Patterson on June 19, 1787).
67. See Act of Apr. 30, 1790, ch. 9, 1 Stat 112.
68. See id. §§ 25-26.
69. Id. §§ 26, 28.
70. 1 JAMES KENT, COMMENTARIES ON AMERICAN LAW 170 (1826).
71. Act of May 22, 1794, ch. 33, 1 Stat. 369.
72. Dellums v. Smith, 577 F. Supp. 1449, 1453 (N.D. Cal. 1984) (regarding a mandamus action brought by private plaintiffs to compel the Attorney General to investigate whether the President and other federal executive officers violated the Neutrality Act vis-à-vis Nicaragua).
73. See William Michael Treanor, Fame, the Founding, and the Power to Declare War, 82 CORNELL L. REV. 695, 695-701 (1997) (discussing the significance of vesting in Congress the power to declare war and grant letters of marque and reprisal).
74. THE FEDERALIST NO. 4, at 101 (John Jay) (Benjamin Fletcher Wright ed., 1961).
75. 6 THE WRITINGS OF JAMES MADISON 174 (Gaillard Hunt ed., 1906).
76. See JEFFREY A. SMITH, WAR AND PRESS FREEDOM: THE PROBLEM OF PREROGATIVE POWER 3, 5-6, 31 (1999) (explaining the Enlightenment aversion to warfare and preference for transparent and republican, versus monarchical, rule).
77. Id. at 4.
78. See Act of June 18, 1812, ch. 102, 2 Stat. 755; Act of May 13, 1846, ch. 16, 9 Stat. 9; Act of Apr. 25, 1898, ch. 189, 30 Stat. 364; Act of Apr. 6, 1917, ch. 1, 40 Stat. 1; Act of Dec. 8, 1941, ch. 561, 55 Stat. 795.
79. See Act of Apr. 6, 1917, ch. 1, 40 Stat. 1; Act of Dec. 17, 1917, ch. 1, 40 Stat. 429; Act of Dec. 8, 1941, ch. 561, 55 Stat. 795; Act of Dec. 11, 1941, ch. 564, 55 Stat. 796; Act of Dec. 11, 1941, ch. 564, 55 Stat. 797; Act of June 5, 1942, ch. 323-25, 56 Stat. 307.
80. See LOUIS FISHER, PRESIDENTIAL WAR POWER 17-18, 26 (1995) (discussing statutes enacted to authorize military operations against France and the Barbary powers).
81. See id. at 13-17 (discussing war power precedents from 1789 to 1800).
82. See Letter from George Washington to Governor William Moultrie (Aug. 28, 1793), in 33 THE WRITINGS OF GEORGE WASHINGTON 1745-1799, at 73 (John C. Fitzpatrick ed., 1940) ("The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure."). In one of his messages on Indian affairs, Washington referred to military operations "offensive or defensive," but the full text of his message is designed to avoid any initiative in warmaking and to limit military actions to defensive measures. The President approved military operations only in response to Indian attacks and pursuant to authorization by Congress to "call forth the militia ... for the protection of the frontiers from the incursions of the hostile Indians."
83. See Instructions from the President of the United States to the Governor of the Western Territory (Oct. 6, 1789), in 1 AMERICAN STATE PAPERS: INDIAN AFFAIRS, CLASS II, 96, 96-97 (Walter Lowrie & Matthew St. Clair Clarke eds., 1832).
84. Letter from Henry Knox to Governor Blount (Oct. 9, 1792), in 4 THE TERRITORIAL PAPERS OF THE UNITED STATES 195 (Clarence Edwin Carter ed., 1936) [hereinafter TERRITORIAL PAPERS].
85. Letter from Henry Knox, Secretary of War, to Governor Blount (Nov. 26, 1792), in TERRITORIAL PAPERS, supra note 82, at 221.
86. Letter from Henry Knox, Secretary of War, to Governor Blount (Mar. 23, 1795), in TERRITORIAL PAPERS, supra note 82, at 389.
87. See, e.g., Act of Mar. 27, 1798, ch. 23, 1 Stat. 547; Act of Apr. 27, 1798, ch. 31, 1 Stat 552; Act of May 3, 1798, ch. 37, 1 Stat. 554; Act of May 28, 1798, ch. 47-48, 1 Stat. 558; Act of July 11, 1798, ch. 72, 1 Stat. 594; Act of July 16, 1798, ch. 76, 1 Stat. 604 (establishing appropriations for armament; regiments of artillery; defense of ports and harbors; the raising of a provisional army; protection of the coasts of the country; the organizations of a Marine Corps; and augmentation of the Army).
88. Thomas Jefferson, First Annual Message (Dec. 8, 1801), in 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS 315 (James D. Richardson ed., Bureau of National Literature, Inc., New York 1897) [hereinafter RICHARDSON].
89. Thomas Jefferson, First Annual Message (Dec. 8, 1801), 1 A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS Id. 315, 1897.
90. See FISHER, supra note 79, at 26 (noting congressional authorization of military action during the presidencies of Jefferson and Madison).
91. See ABRAHAM D. SOFAER, WAR, FOREIGN AFFAIRS AND CONSTITUTIONAL POWER: THE ORIGINS 209-14 (1976) (detailing the events of the 1801 expedition to the Mediterranean).
92. 15 ANNALS OF CONG. 19 (1805).
93. FISHER, supra note 79, at 32.
94. Act of May 13, 1846, ch. 16, 9 Stat. 9; see also FISHER, supra note 79, at 29-34 (detailing Polk's actions in the disputed territory and the congressional reaction).
95. JOHN LOCKE, THE SECOND TREATISE ON CIVIL GOVERNMENT 89 (Prometheus Books 1986) (1690).
96. Abraham Lincoln, Special Session Message (July 4, 1861), in 7 RICHARDSON, supra note 86, at 3221, 3225.
97. Abraham Lincoln, Special Session Message Id. 1861, 3221.
98. See CONG. GLOBE, 37th Cong., 1st Sess. 393 (1861) (reporting Senator Howe's statement that he would vote to support the President's actions "upon the assumption that the different acts of the Administration ... were illegal").
99. Act of Aug. 6, 1861, ch. 63, 12 Stat. 326.
100. Edward S. Corwin, The President's Power, NEW REPUBLIC, Jan. 29, 1951, at 15, 16.
101. See RICHARD F. GRIMMETT, CONGRESSIONAL RESEARCH SERVICE, REPORT NO. RL 30172, INSTANCES OF USE OF UNITED STATES ARMED FORCES ABROAD, 1798-1999 (1999) (reviewing "hundreds of instances in which the United States has utilized military forces abroad in situations of military conflict or potential conflict to protect U.S. citizens or promote U.S. interests").
102. See id. at 2-12 (providing a brief description of various U.S. military actions abroad).
103. See id. at 1-12 ("In some instances a military officer acted without authorization ....")
104. See FISHER, supra note 79, at 35-37 (recounting the bombardment of Greytown and its effects).
105. Article 20 of the OAS provides that the territory of a nation is inviolable and it "may not be the object, even temporarily, of military occupation or of any other measures of force taken by another State, directly or indirectly, on any grounds whatever." CHARTER FOR THE ORGANIZATION OF AMERICAN STATES (as revised) art. 20.
106. U.N. CHARTER art. 2, para. 4.
107. W. TAYLOR REVELEY III, WAR POWERS OF THE PRESIDENT AND CONGRESS: WHO HOLDS THE ARROWS AND OLIVE BRANCH? 29 (1981).
108. CHARLES A. LOFGREN, War-Making Under the Constitution: The Original Understanding, in "GOVERNMENT FROM REFLECTION AND CHOICE": CONSTITUTIONAL ESSAYS ON WAR, FOREIGN RELATIONS, AND FEDERALISM 3, 36 (1986).
109. Id. at 38.
110. JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH 3 (1993).
111. JOHN HART ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH Id. 3 (1993).
112. David Gray Adler, Court, Constitution, and Foreign Affairs, in THE CONSTITUTION AND THE CONDUCT OF AMERICAN FOREIGN POLICY 19, 19 (David Gray Adler & Larry N. George eds., 1996).
113. MICHAEL J. GLENNON, CONSTITUTIONAL DIPLOMACY 72 (1990).
114. Id. at 81.
115. HAROLD HONGJU KOH, THE NATIONAL SECURITY CONSTITUTION: SHARING POWER AFTER THE IRAN-CONTRA AFFAIR 75 (1990).
116. Id. at 76.
117. John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CAL. L. REV. 167, 174 (1996).
118. Id. at 268, 295.
119. Id. at 264.
120. Id. at 266.
121. See id. at 174 (explaining instead that "[t]he Constitution establishe[d] a war-making process that can vary with the circumstances and with the relative political power of the President and Congress").
122. 67 U.S. (2 Black) 635, 668 (1863) (noting that "[i]f a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force").
123. Id. at 668.
124. Id. at 669.
125. Id. at 660.
126. 5 U.S. (1 Cranch) 1, 28 (1801).
127. 27 F. Cas. 1192, 1230 (C.C.N.Y. 1806) (No. 16,342).
128. KOH, supra note 113, at 83.
129. Yoo, supra note 115, at 288.
130. Id. at 295.
131. Id. at 286 n.547.
132. See id. (discussing Wilson's doubts about adopting a system in which war powers are vested in the executive, rather than the legislature).
133. Id.
134. Id.
135. Id.
136. Id.
137. Id. at 242.
138. Id. at 243.
139. Id. at 247.
140. Id. at 270.
141. Id. at 271.
142. Id. at 295.
143. Id. at 288.
144. See Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 1 (1801) (allowing salvage to a United States ship of war that captured a neutral owned ship from the French); Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800) (holding that the act of Congress of March 2, 1799, applied to an American ship captured by a French privateer because France and the United States were involved in a public war and, therefore, considered "enemies" for the purpose of the statute); United States v. Smith, 27 F. Cas. 1192, 1229-30 (C.C.D. N.Y. 1806) (No. 16,342) (noting that the President does not have the "authority to set on foot a military expedition against a nation with which the United States are [sic] at peace").
145. 6 U.S. (2 Cranch) 170, 179 (1804) (holding that Congress's act of February 9, 1799, did not authorize the seizure of ships sailing from French ports, and that the President's order to seize such ships can not exonerate an American commander where he seized such a ship).
146. Yoo, supra note 115, at 295 n.584.
147. Id.
148. See id.
149. Id. at 176.
150. See U.S. CONST. art. III, § 2 (describing the breadth of the judicial power).
151. Yoo, supra note 115, at 172.
152. Id. at 177.
153. Id. at 290-91 (quoting RICHARD H. KOHN, EAGLE AND SWORD: THE FEDERALISTS AND THE CREATION OF THE MILITARY ESTABLISHMENT IN AMERICA, 1783-1802, at 107 (1975)).
154. Act of Sept. 29, 1789, ch. 27, § 5, 1 Stat. 95; see also Act of Apr. 30, 1790, ch. 10, § 16, 1 Stat. 119, 121 (authorizing the President to call out the militia for "the purpose of aiding the troops now in service, or to be raised by this act, in protecting the inhabitants of the frontiers of the United States"); Act of Mar. 3, 1791, ch. 28, 1 Stat. 222 (raising and adding another regiment to the United States military and providing further protection of the frontiers).
155. Letter from George Washington to Governor William Moultrie, supra note 81, at 73.
156. Yoo, supra note 115, at 291 (noting the occurrence of raids on merchant commerce, full scale battles, and the creation of a regular army during the Quasi-War between the United States and France).
157. See FISHER, supra note 79, at 17-18 (discussing several ways in which Congress supported military action by the President, and noting that "Congress had acted to authorize war").
158. Yoo, supra note 115, at 292.
159. Id. at 174.
160. See supra text accompanying notes 72-76.
161. Yoo, supra note 115, at 197.
162. Id. at 242.
163. See supra text accompanying notes 44-48.
164. Yoo, supra note 115, at 198.
165. THE FEDERALIST NO. 75, at 477 (Alexander Hamilton) (Benjamin Fletcher Wright ed., 1961).
166. Yoo, supra note 115, at 174.
167. Id. at 197.
168. Id. at 197 n.158.
169. Id. at 241.
170. See 1973 PUBLIC PAPERS OF THE PRESIDENTS, 621-22 (vetoing the bill and noting that the veto was not overriden by the House); 119 CONG. REC. 21778 (1973) (sustaining the veto).
171. See Second Supplemental Appropriations Act of 1973, § 307, 87 Stat 129 (prohibiting use of any appropriated funds "to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam and South Vietnam" after the expiration of 45 days).
172. See Holtzman v. Schlesinger, 361 F. Supp. 553, 565 (E.D.N.Y. 1973).
173. Id.
174. See Holtzman v. Schlesinger, 414 U.S. 1304, 1310, 1316, 1321 (1973) (granting an application for a stay of the district court order); Holtzman v. Schlesinger, 484 F.2d 1307, 1313-14 (2d Cir. 1973) (finding the argument that the President only required a vote of "one-third plus one" unpersuasive in light of the compromise language).
175. Yoo, supra note 115, at 297.
176. See LOUIS FISHER, PRESIDENTIAL SPENDING POWER 110-18, 238-47 (1975) (discussing Nixon's use of transfer authority to fund the war in Cambodia, and the open-ended authority of the Department of Defense to commit funds under the Feed and Forage Act).
177. Yoo, supra note 115, at 298.
178. See Louis Fisher, The Bosnia Commitment, LEGAL TIMES, Mar. 11, 1996, at 22 (noting that some legislators deferred to Clinton's decision to send troops but asserting that there was not adequate process because there was no action or authorization by the entire Congress).
179. 145 CONG. REC. H1249-50 (daily ed. Mar. 11, 1999).
180. See 145 CONG. REC. S3118 (daily ed. Mar. 23, 1999).
181. Id. at S3110.
182. James A. Leach, A War Vote, WASH. POST, Apr. 15, 1999, at A31.
183. James A. Leach, A War Vote, WASH. POST, Id. 1999, A31.
184. See 145 CONG. REC. H2376-452 (daily ed. Apr. 28, 1999).
185. See, e.g., Julie Malone, Mixed Signals for the House Gel Tangled Interpretations, TIMES-PICAYUNE (New Orleans), Apr. 30, 1999, at A12;
186. Editorial, No-confidence Vote for a Waffling House, BALTIMORE SUN, Apr. 30, 1999, at 26A;
187. Editorial, War Waffling in House, L.A. TIMES, Apr. 30, 1999, at B6.
188. 145 CONG. REC. H2419 (daily ed. Apr. 28, 1999).
189. See FISHER, supra note 79, at 92-97 (arguing that mutual security treaties "do not empower the President to use armed force abroad without congressional consent").
190. See Michael J. Glennon, United States Mutual Security Treaties: The Commitment Myth, 24 COLUM. J. TRANSNAT'L L. 509 (1986) (arguing that without legislative approval presidential action predicated upon a mutual security treaty is constitutionally unauthorized).
191. 101 CONG. REC. 1051 (1955).
192. See FISHER, supra note 79, at 84-86, 148-51 (noting the reliance by both Truman and Bush on U.N. resolutions as authorization for their actions).
193. See id. at 72-84 (arguing that the U.N. Charter and the U.N. Participation Act of 1945 did not alter the constitutional framework by allowing the President to take military action without obtaining congressional approval).
194. 140 CONG. REG. 19324 (1994).
195. See id.
196. Yoo, supra note 115, at 304 (quoting THE FEDERALIST NO. 70, at 475 (Alexander Hamilton) (Jacob E. Cooke ed., 1982)).
197. Id.
198. 2 Elliot, supra note 25, at 528.