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Abstract
The United States is, by many accounts, facing a renewed risk of major power conflict. This Article considers what the reemergence of this risk may mean for the executive branch's operational understanding of constitutional war powers, specifically as they relate to the use of military force. After outlining the relationship between U.S. strategic concerns and executive branch legal interpretations and reviewing the most recent historical parallel the Truman administration's reconsideration of war powers in the early Cold War it examines three aspects of the executive branch's current understanding for tensions with the strategic demands of major power conflict: the anticipated nature, scope, and duration test used to identify possible Declare War Clause limitations; the President's exclusive authority to engage in national self-defense; and the domestic legal effects of collective defense treaties.
Finding that the anticipated nature, scope, and duration test is likely to prove more constraining in the context of major power conflict than it has for past asymmetric conflicts, this Article then surveys executive branch practice to identify ways it may adapt its understanding, from a return to broad claims of inherent and exclusive presidential authority to use force to more targeted adaptations relating to treaties, self-defense, and even prerogative. From there, it puts the executive branch's decision in the broader context of inter-branch relations and considers alternatives, including the pursuit of statutory authorization. Ultimately, it argues that the political branches must acknowledge and begin dialogue on how to approach the new strategic challenges the United States is facing. Otherwise, they risk compounding the political crisis of a major power conflict with a constitutional crisis over how the President may respond.
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Recommended Citation
Anderson, Scott R.
(2025)
"War Powers and the Return of Major Power Conflict,"
University of Chicago Legal Forum: Vol. 2024, Article 1.
Available at:
https://chicagounbound.uchicago.edu/uclf/vol2024/iss1/1