国会能让总统挑起战争吗

Q4 Social Sciences Louisiana Law Review Pub Date : 2011-01-01 DOI:10.2139/SSRN.2293151
Charles Tiefer
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An elected \"hawkish\" majority in Congress may want to use tougher measures in the theatre of war than the President. It would enact measures past the bounds of policy set by the President as its way to step up the war.This Article does not look at such hypotheticals, of course, to discuss their policy implications. Rather, the discussion seeks to develop the analytical structure about whether a \"hawkish\" Congress may constitutionally enact various kinds of provisions. The provisions at issue have been chosen so as not to aim at restricting war, rather, these make a reluctant Commander in Chief step up a war.Accordingly, Part II of this Article provides the constitutional history of Congress's war appropriation riders. It develops the key background events, shedding a special light on the Framers' intent in wording the potent \"No Appropriation\" provision in the negative so that Congress would have a great power to limit, not to force, action. Proper appropriation riders derive great support from the plenary nature, venerable history, and contemporary significance of Congress's power of the purse.Part III of this Article uses the just-summarized constitutional history to set up and to apply a basic structure to categorize congressional appropriation riders. Although the main focus is to contextualize provisions for stepping up a war, the approach also yields insight regarding all war-related appropriation riders. In light of history, whether provisions are presumptively unconstitutional depends on whether the provision goes to the very core of the Commander in Chiefs more \"central\" concerns in the war zone: command, disposition of forces, and militarycampaigns.Part IV proceeds to apply the analysis to three hypothetical measures, one in each of these categories that Congress might enact years from now in the Afghan conflict. First, Congress may enact a provision that directs the President to make an armed incursion into \"border sanctuaries\" within Pakistan. Such congressional action would collide with the core of the Commander in Chief's central issue of Campaigning.The next Section of Part IV studies a congressional mechanism for intrusively overseeing command- a special oversight committee. This Section delves into the under-appreciated history of congressional wartime inquiries. It compares the infamous joint committee that oversaw the conduct of the Civil War with the praiseworthy major oversight inquiry at the start of the KoreanWar.The third Section of Part IV analyzes a hypothetical provision as to \"shared\" issues of Congress and the President, in contrast to the prior examples that affect the \"central\" Commander in Chiefissues. Namely, this Part considers a congressional provision mandating a poppy eradication program. 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引用次数: 0

摘要

国会可以动用拨款权来指示总统加紧战争吗?当国会利用其支出能力来强化战争——加快战争步伐,更积极地推动战争——对抗“不那么鹰派”的总司令的抵抗时,谁会赢?本文将2010年代对阿富汗战争的不同看法作为一种回顾历史的方式,一般来说,关于战争相关拨款附加条款的宪法争议。用非常简单的术语来描述这种差异,国会中的“鹰派”反对派可能会在任何时候获得政治力量,比如在2010年或2014年,不一定是因为战争问题,而是可能是因为在一个政治平台上竞选,在这个政治平台上,对战争的“鹰派”观点是该平台明确或隐含的内容之一。国会中当选的“鹰派”多数派可能希望在战场上采取比总统更强硬的措施。它将颁布超越总统制定的政策范围的措施,作为加强战争的方式。当然,本文并不着眼于这些假设,来讨论它们的政策含义。相反,讨论旨在建立一个分析结构,即“鹰派”国会是否可以在宪法上颁布各种条款。选择这些有争议的条款不是为了限制战争,而是为了使不情愿的总司令加强战争。因此,本文第二部分提供了国会战争拨款附加条款的宪法历史。它发展了关键的背景事件,特别揭示了制宪者将强有力的“禁止拨款”条款措辞为否定的意图,以便国会拥有限制而不是强制行动的强大权力。适当的拨款条款从国会财政权力的全体性质、可敬的历史和当代意义中得到极大的支持。本文的第三部分利用刚刚总结的宪法历史,建立并应用了一个对国会拨款附加条款进行分类的基本结构。虽然主要的焦点是将加速战争的条款置于背景下,但这种方法也可以洞察所有与战争有关的拨款附加条款。从历史的角度来看,条款是否被推定为违宪取决于该条款是否涉及最高统帅在战区更“核心”的问题:指挥、部队部署和军事行动。第四部分继续将分析应用于三种假设措施,国会可能在几年后的阿富汗冲突中制定这些类别中的一种措施。首先,国会可以颁布一项规定,指示总统武装入侵巴基斯坦境内的“边境庇护所”。这样的国会行动将与总司令的核心问题——竞选活动相冲突。第四部分的下一节研究了国会介入监督指挥的机制——一个特别监督委员会。本节将深入探讨国会战时调查的历史。它将监督南北战争行为的臭名昭著的联合委员会与朝鲜战争开始时值得称赞的主要监督调查进行了比较。第四部分的第三部分分析了一个关于国会和总统“共同”问题的假设条款,与之前影响“中央”总司令问题的例子形成对比。也就是说,本部分考虑的是一项国会规定的罂粟根除计划。此外,这一部分回顾了军事扣押的复杂历史。第五部分是本文的结论,讨论了对围绕“更鹰派”国会行动的问题的考虑如何动摇了习惯性的思维方式。这种方法促使观察人士重新思考他们既定的假设。不言而喻的假设是,强大的总司令权力必然会导致不受欢迎的战争扩张。相反的观点为研究战争力量开辟了新的领域。
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Can Congress Make a President Step Up a War
May Congress use its appropriation power to direct the President to step up a war? When Congress uses its spending power for intensifying a war-stepping it up, pressing it more aggressively-against the resistance of a "less hawkish" Commander in Chief, who wins?This Article posits differences of view in the 2010s toward the Afghanistan war as a way to revisit, generally, the history of constitutional disputes over war-related appropriation riders. Describing the differences in very simplistic terms, a "hawkish" opposition in Congress may gain political strength at any time, such as in 2010 or 2014, not necessarily because of the war issues but perhaps from running on a political platform in which a "hawkish" view of the war is one of the platform's explicit or implicit planks. An elected "hawkish" majority in Congress may want to use tougher measures in the theatre of war than the President. It would enact measures past the bounds of policy set by the President as its way to step up the war.This Article does not look at such hypotheticals, of course, to discuss their policy implications. Rather, the discussion seeks to develop the analytical structure about whether a "hawkish" Congress may constitutionally enact various kinds of provisions. The provisions at issue have been chosen so as not to aim at restricting war, rather, these make a reluctant Commander in Chief step up a war.Accordingly, Part II of this Article provides the constitutional history of Congress's war appropriation riders. It develops the key background events, shedding a special light on the Framers' intent in wording the potent "No Appropriation" provision in the negative so that Congress would have a great power to limit, not to force, action. Proper appropriation riders derive great support from the plenary nature, venerable history, and contemporary significance of Congress's power of the purse.Part III of this Article uses the just-summarized constitutional history to set up and to apply a basic structure to categorize congressional appropriation riders. Although the main focus is to contextualize provisions for stepping up a war, the approach also yields insight regarding all war-related appropriation riders. In light of history, whether provisions are presumptively unconstitutional depends on whether the provision goes to the very core of the Commander in Chiefs more "central" concerns in the war zone: command, disposition of forces, and militarycampaigns.Part IV proceeds to apply the analysis to three hypothetical measures, one in each of these categories that Congress might enact years from now in the Afghan conflict. First, Congress may enact a provision that directs the President to make an armed incursion into "border sanctuaries" within Pakistan. Such congressional action would collide with the core of the Commander in Chief's central issue of Campaigning.The next Section of Part IV studies a congressional mechanism for intrusively overseeing command- a special oversight committee. This Section delves into the under-appreciated history of congressional wartime inquiries. It compares the infamous joint committee that oversaw the conduct of the Civil War with the praiseworthy major oversight inquiry at the start of the KoreanWar.The third Section of Part IV analyzes a hypothetical provision as to "shared" issues of Congress and the President, in contrast to the prior examples that affect the "central" Commander in Chiefissues. Namely, this Part considers a congressional provision mandating a poppy eradication program. Also, this Part reviews the complex history of military impoundments.Part V, this Article's conclusion, discusses how consideration of the issues surrounding "more hawkish" congressional action shakes up habitual ways of thinking. This approach invites observers to rethink their settled presumptions. The unspoken assumption has been that a strong Commander in Chief power invariably drives an unwelcome expansion of war. To think otherwise opens new frontiers for study of the war power.
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Louisiana Law Review
Louisiana Law Review Social Sciences-Law
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期刊介绍: The first issue of the Louisiana Law Review went into print in November of 1938. Since then the Review has served as Louisiana"s flagship legal journal and has become a vibrant forum for scholarship in comparative and civil law topics. The article below is taken from the first issue of the Law Review. The piece was meant to commemorate the founding of the Law Review and to foreshadow the lasting impact that the Louisiana Law Review would have on state jurisprudence and legislation and on the legal landscape of Louisiana for years to come.
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Towards a New Archimedean Point for Maternal vs. Fetal Rights? A Louisiana Theory of Juridical Acts States’ Rights to Protect Gun-Owning Patients from Politicized Physician Speech Custom as a Source of Law in Louisiana A Tribute to Thanassi: The Influence of Justinian on American Common Law Property
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