Louis Fisher

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Publications

“Deciding on War Against Iraq: Institutional Failures,”
118 Pol. Sci. Q. 389 (2003). This article analyzes the performance of U.S. political institutions in authorizing the war against Iraq in October 2002. It concludes that the Bush administration failed to provide reliable information to Congress to justify the war and relied on tenuous, unsubstantiated claims that were regularly discredited. Also, Congress failed in its institutional duties, both by voting on the Iraq Resolution without sufficient evidence and by drafting the resolution in such a way that it left the power to initiate war in the hands of the President, exactly what the framers had tried to prevent.
“Judicial Review of the War Power,”
35 Pres. Stud. Q. 590 (2005). It is often said that federal courts regard themselves as without authority or competence to adjudicate matters of the war power, preferring to defer to actions taken by the elected branches. However, ever since the Supreme Court in 1800 first accepted and decided a case involving the use of military force, federal courts have been active in monitoring the war power, at times upholding the judgments of the President and on other occasions striking them down. Of special interest are cases where the President acts contrary to statutory authority.
“Scholarly Support for Presidential Wars,”
35 Pres. Stud. Q. 590 (2005). For the past half-century, political scientists, law professors, and historians have promoted a greatly strengthened presidency, including authority to take the country to war without a declaration of authorization from Congress. In justifying this shift of power, scholars have given little thought to legal boundaries and constitutional principles, including checks and balances and the system of separate powers. Students in high school, college, and law schools need a more balanced and constitutional instruction on the presidency. Those who speak to the public have a duty to explain (and understand) basic principles and the rule of law.
“Lost Constitutional Moorings: Recovering the War Power,”
81 Ind. L. Rev. 1199 (2006). For the past half century, Presidents have claimed constitutional authority to take the country from a state of peace to a state of war against another nation. That was precisely the power the framers denied to the President and vested exclusively in Congress. That allocation of power was understood by all three branches until President Harry Truman went to war against North Korea in 1950. He never came to Congress for authority before he acted or at any time thereafter. The persistence of presidential wars does severe damage to the U.S. constitutional system, separation of powers, checks and balances, and the principle of self-government.
“Domestic Commander in Chief: Early Checks by Other Branches,”
29 Cardozo L. Rev. 961 (2008). This article looks to the early years of the republic to understand the scope, purpose, and boundaries of the Commander in Chief Clause. The framers viewed the Clause within the context of republican government where ultimate power is placed not in a single executive but with the people and their elected representatives. Covered within this article is the distinction between offensive and defensive wars, military actions against Indians, the militia act of 1792, the Neutrality Proclamation of 1793, the Whiskey Rebellion of 1794, the Alien and Sedition Acts of 1798, and judicial rulings from 1800 to 1806.
“John Yoo and the Republic”
41 Pres. Stud. Q. 177 (2011). In his private writings and legal memos for the Justice Department, John Yoo is well known for promoting broad and even exclusive presidential power over national security. Less understood is his dependence on the British model that extended to the king plenary power over war and external affairs. Yoo devotes little attention to the framers' rejection of British executive prerogatives and to their commitment to checks and balances and to a republic that vests sovereign power not in an executive but in the people and their elected representatives.
Statement before the Senate Committee on the Judiciary, “Exercising Congress’s Constitutional Power to End a War,”
January 30, 2007. This testimony explains the democratic principles that guided the framers, their rejection of monarchical power, the distinction between offensive and defensive military actions, separation of purse and sword, scope of the Commander in Chief Clause, the Constitution in practice, and contemporary statutory restrictions, including the cutoff of funds in 1973 to end the Vietnam War, prohibitions on CIA paramilitary activities in Angola, limitations imposed on assistance to the Contras in Nicaragua leading to the Iran-Contra scandal in 1987, authority for the Gulf War in 1991, and statutory requirements to withdraw U.S. troops from Somalia by March 31, 1994.
“To War or Not to War: That is Still the Question for Congress, not the President,”
Legal Times, March 10, 2008, pp. 44-45. During the 2008 presidential election, candidates spoke deferentially about popular control. They said the election was not about them but about the voters, and that change had to come from the bottom rather than the top. Yet when the subject turned to the President’s power as commander in chief they switched course and claimed unilateral power to make military commitments. The record is clear that the framers placed in Congress (the people’s representatives) the decision to send the nation to war and deliberately rejected the available monarchical models that vested all powers of war and foreign relations in the Executive.
“The State Secrets Privilege: Relying on Reynolds,”
122 Pol. Sci. Q. 385 (2007). The George W. Bush administration invoked the state secrets privilege as an absolute bar to litigation whenever the administration determined that the disclosure of agency documents would harm national security. The cases involved such areas of law as NSA surveillance and extraordinary rendition. This article analyzes the Supreme Court case relied on primarily by the administration, United States v. Reynolds (1953), which for the first time recognized the state secrets privilege. The Court’s decision did great damage to the integrity of the judiciary, the rights of private litigants, and the constitutional system of checks and balances.
“State Your Secrets: When the government cloaks itself in privilege, judges must rule.”
Legal Times, June 26, 2006, pp. 68-69. When the executive branch claims that a pending case is covered by the state secrets privilege, federal judges must exercise an independent role in examining documents to determine whether the case can continue to discovery. Without that independence, the executive branch gains too much control over the courtroom and denies private litigants an opportunity to pursue their case. If the executive branch invokes the state secrets privilege, it should be understood that the branch that decides questions of privilege and evidence is the judiciary, not the executive.
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