Haviland on Misreading the History of Presidential War Power, 1789-1860

Aaron Haviland is publishing Misreading the History of Presidential War Power, 1789-1860 in volume 24 of the Texas Review of Law & Politics (2020). Here is the abstract.

The Office of Legal Counsel (OLC) justifies its expansive view of presidential war power by citing long lists of American military conflicts. But OLC misinterprets these events. This article surveys every U.S. conflict between 1789 and 1860 and evaluates whether the conflict was authorized by Congress, a limited defensive measure under Article II, or possibly unconstitutional. Viewed in its entirety, early American history does not support the OLC position. This article calls for a more restrained approach to war power that is based on the original meaning of the Declare War Clause, informed by a more accurate interpretation of history.

Download the article from SSRN at the link.