Co-Parenting War Powers: Congress's Authority to Escalate Conflicts

Authors

Russell A. Spivak

Document Type

Article

Abstract

This article argues that Congress has the ability to force a President to escalate military intervention when he is otherwise unwilling to do so. The article begins by exploring the constitutional powers at Congress's disposal-the Declare War Clause, the Taxing and Spending Clause, and the Commander-in-Chief Clause-and their historical application. It then establishes that, under Justice Jackson's Youngstown framework, the Executive would be acting in Category Three, meaning that the President may "rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter." Citing multiple Article I clauses, this article argues that Executive action in contravention of Congressional efforts to increase military intervention would unconstitutionally encroach on Congress's prerogative. Finally, it buttresses these conclusions by drawing on historical precedent.

Recommended Citation

Russell A. Spivak, Co-Parenting War Powers: Congress's Authority to Escalate Conflicts, 121 W. Va. L. Rev. (2018).
Available at: https://researchrepository.wvu.edu/wvlr/vol121/iss1/7