Volume 16
Issue 2
Summer '18

The Constitutional Objector: How Servicemembers Can Restore the Constitutional Separation of War Powers

Written By: John Maniscalco

Abstract

The Constitution entrusts Congress with the power to declare war and renders the President the Commander in Chief of the Armed Forces. The Founders designed the separation of war powers to prevent the President from obtaining monarchical powers by ensuring congressional deliberation before engaging in hostilities, while simultaneously empowering the President to repel attacks against the United States. In the modern era, declarations of war became archaic and were replaced with congressional authorizations that serve the same function. Since World War II, Presidents successfully aggrandized the executive branch’s ability to make war at the expense of Congress. By enacting broad Authorizations of Military Force that described rather than identified the enemy in response to the September 11 terrorist attacks, which permitted the President to claim the power to take the country to war against enemies that did not exist in 2001, Congress contributed to the distortion of the Founders’ design. The questionable legality of the war against the Islamic State led Army Captain Nathan Smith to take President Obama and President Trump to court to resolve the legality of that conflict. The doctrines of standing and political question have thus far prevented judicial adjudication of the merits of the case. This Note argues that Congress should grant to servicemembers the ability to claim “constitutional objector” status, which would permit members of the Armed Services to voluntarily refrain from conflicts of dubious legality and that, if a critical mass of soldiers took advantage of this offer, the political branches would be forced to restore the separation of war powers as designed by the Founders.

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