Declaring war no more: the use of international legal frameworks and the expansion of the presidential war power

Thesis

The struggle between the President and the Congress over the power to control the use of military force is an enduring dimension of U.S. foreign policy. In the 20th century Arthur Schlesinger labeled the growth of Presidential war power the “Imperial Presidency.” While some scholars have attempted to explain the expansion of Presidential power based on the Cold War or nuclear weapons, there has been little work studying the link between America’s ascending role in international legal frameworks and this domestic legal transformation.

In this dissertation, I argue that America’s participation in international legal frameworks, such as the United Nations and NATO, has been a central factor in enabling the growth of Presidential war power. These international frameworks allow the President to circumvent Congress and to assert that the use of military force was something other than a ‘war’ that would need Congressional authorization. In case studies of pre-WWII aid to Great Britain, the Korean War, the Vietnam War and the Gulf War, I demonstrate how the rise of executive war power relied on America’s growing participation in international legal frameworks.

The dissertation contributes to the nexus of International Relations and Constitutional scholarship. It offers a unique interpretation of Presidential war power while also offering new insights on the nature of the United States’ relationship with international legal frameworks. I argue that participation in international legal frameworks has been ‘democracy-undermining’ as the President utilizes those frameworks to circumvent the Constitution’s restrictions on Presidential war power.

Authors: Kleiner, S; Samuel Kleiner

• Alternative title: US presidential utilization of international legal frameworks to expand the president's constitutional power to use military force
• Publication date: 2012
• DOI: 10.5287/ora-avmdenzy8
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: Oxford University, UK
• Language: English
• Keywords: presidency; war powers; Gulf War; constitution; Vietnam War; Korean War; Congress
• Subjects: Law; History of War; History of North America