War, Responsibility, And the Age of Terrorism‪.‬

Just as John Hart Ely made a defining and singular contribution to the problem of judicial review with Democracy and Distrust, (1 so too he contributed to the study of war powers with War and Responsibility. (2) Like Democracy and Distrust, War and Responsibility crystallized a generation's thinking about a problem, wrought consensus out of myriad views, and accomplished these tasks while firmly grounding its argument and analysis in constitutional structure. (3) Also like Democracy and Distrust, War and Responsibility found its answer in process rather than substance. Ely believed that deliberation by multiple institutions, and ultimately the electorate, would produce good public policy. Finally, both books called on the federal judiciary to play a central role in maintaining the functioning of that process. Process itself is important, and monitoring process is a job that judges can largely perform without injecting their personal views into the controversies before them. Ely's framework for war powers can be clearly and simply stated. Not only did the Constitution vest in Congress the power to declare war, he concluded, but "the [Framing] debates, and early practice, establish that this meant that all wars, big or small, 'declared' in so many words or not--most weren't, even then--had to be legislatively authorized." (4) Once Congress had given ex ante approval for military hostilities, the Commander-in-Chief Clause allowed the President to conduct military hostilities. The only exception allowed unilateral presidential action in response to a direct attack on the United States. According to Ely, the Constitution imposed a duty on the federal courts to intervene if Presidents waged wars without congressional approval. "[T]he court would ask whether Congress had authorized [the war], and if it hadn't, rule the war unconstitutional unless and until such authorization was forthcoming." (5) This process, Ely concluded, was designed with the substantive goal in mind of making it difficult for the United States to enter into war. It is fair to say that Ely's view represents the majority view among academics and has a certain intuitive attraction because it appeals to the standard working model of the separation of powers that prevails in domestic affairs.