At Lawfare, Matthew Waxman (Columbia): May Congress Delegate Its War Power? From the introduction:
War powers reform is a hotly debated topic these days, and so are the constitutional limits of legislative delegation. Recently, Michael Ramsey, of the University of San Diego, and I set out to study the intersection of the two issues: Now that—since World War II—Congress no longer formally declares war but instead, in the case of all major U.S. ground wars since Korea, sometimes authorizes the president to use military force, what can we learn by considering force authorizations as legislative delegations—essentially, delegating vast policy discretion to the president as to whether and when to go to war, or perhaps not to use any force at all? Among other issues, we were interested in when and how this practice became so well accepted that even most critics of presidential unilateralism see it as constitutionally satisfactory.
To the extent that congressional force authorizations are thought about as delegations of some exclusive congressional war power (and reasonable lawyers may disagree on where the boundary of that exclusive power lies), there are two common approaches that pull in completely opposite directions.
One takes the—now more common—view that broad legislative delegations are especially permissible with regard to foreign affairs (per Justice George Sutherland’s opinion in United States v. Curtiss-Wright), and going to war is a quintessential foreign affairs issue. Therefore, whatever exclusive power Congress may have to initiate war, it is exceptionally delegable. The other, with a long pedigree throughout American history, takes the view that there are grave and particular stakes and risks associated with war and presidential decisions to wage it. For that reason, this specific congressional power is exceptionally, maybe uniquely, nondelegable. Both approaches see war power as special, but in antithetical ways.
In a recent article, we trace the history of constitutional debates and practices of war power delegation, and we discuss implications for contemporary conversations about nondelegation in “foreign affairs,” as well as for war power reform. We show that the history of war power delegation does not provide strong support for either of the two common but opposite positions mentioned above. …
This has been a fun multi-year project with a great co-author, and I'm still not sure what I think about the question posed in the post's title.
Posted at 6:26 AM