The late twentieth century and early twenty-first century bore witness to a flurry of small-scale conflicts, many of which were initiated by the President of the United States without a formal declaration of war from Congress. A host of legal scholars have decried these hostilities and harshly admonished presidential initiative in warmaking. However, this state of affairs is not a modern phenomenon, but rather a fate entirely anticipated by the Framers of the US Constitution. By exploring a plethora of historical authorities and framing-era sources, this Note distills an original understanding of the President’s defensive war powers: the executive’s limited prerogative to unilaterally repel an imminent foreign threat.
Jonathan G. D’Errico