# War Powers: The Politics of Constitutional Authority

War Powers: The Politics of Constitutional Authority is a 2013 book by Mariah Zeisberg that studies war powers in the United States. The book explores the constitutional distribution of war-making authority between the President and Congress, arguing while the Constitution does not provide a clear legal resolution to this debate, it does advance implicit standards for assessing the branches’ claims in politics. Zeisberg, a political scientist, introduces a novel framework called the "relational conception" to evaluate the constitutional authority of various military actions.

## Overview

The book is a comprehensive examination of the ongoing debate over which branch of the U.S. government—the executive or the legislative—holds the constitutional authority to initiate armed conflict. In the tradition of the “Constitution Outside the Court” literatures, Zeisberg contends that the Constitution does not offer a clear legal answer to this question but does sets up a meaningful framework for constitutional politics in both its settled, and its contestatory aspects.
Zeisberg critiques existing scholarly approaches to the war powers debate, categorizing them into "pro-presidency insularism" and "pro-Congress insularism." She challenges these perspectives by proposing a relational conception of war authority, which considers the constitutional roles and deliberative processes of each branch and both of them together.
The book includes detailed explorations of historical conflicts, including the Mexican War, Cuban Missile Crisis, World War I, and World War II, to demonstrate how the relational conception confirms many common intuitions about legislative and executive power in war that cannot be accounted for under insularist models. The book also explores legislative powers like investigations and appointments as vehicles for Congress’ war politics, and defends partisanship in the branches’ interpretive practices.

### Relational conception

Zeisberg's relational conception includes:
* Substantive Standards: These focus on the real security and public policy stakes of the military dilemmas that the president and Congress encounter.
* Processual Standards: These emphasize appropriate processes within and between each branch.
The book applies these standards to various historical case studies, ranging from the Mexican War to the Iran-Contra investigation, to illustrate how the relational conception can be used to appraise the constitutional authority of military actions. Zeisberg’s analysis yields claims that are more deferential to presidential power than many scholars in her field (arguing for the constitutional authority of Congress’ policy work during the early Cold War) , but also vigorously defending Congress (arguing for instance that the Nye Commission’s investigations of the Wilson administration represented a significant constitutional precedent worthy of emulation). Her analysis is also notable for emphasizing the role of interbranch conflict in generating constitutional authority for military action.

## Reviews and critical reception

In his review, Benjamin J. Keele stressed Zeisberg's argument against the settlement thesis, which claims the Constitution clearly dictates the distribution of war powers. "Zeisberg makes a persuasive case that the Constitution does not precisely dictate each branch’s war powers and assigning these powers will inevitably be political" writes Keele. He also highlighted the book's valuable case studies, detailed historical descriptions, and extensive footnotes but mentioned the absence of a bibliography.
Bruce Peabody of Fairleigh Dickinson University also praised its innovative thesis that challenges the traditional settlement approach to constitutional war powers. Peabody stressed the author's relational model for its fluency in engaging with a wide-ranging scholarly literature. Peabody found Zeisberg compelling in her critique of Congress's underappreciated role in shaping war policies and highlighted her view that the relational approach moves beyond "rule-bound decision-making" models. He noted, however, that some aspects, such as the notion of "constitutional authority," needed further clarification and elaboration, asking, "What is constitutional authority, exactly?"
Kimberley L. Fletcher praised the book for its thorough historical and contemporary analysis of the war powers debate between the executive and legislative branches. Fletcher highlighted Zeisberg's argument that the Constitution created a political framework rather than offering clear legal answers on war authority, and how interbranch deliberation shaped constitutional politics. Despite some criticisms regarding the omission of certain judicial decisions and the placement of settlement theory discussion, Fletcher considered the book an essential and ambitious contribution to understanding constitutional politics and the war powers debate.
In his review of the work, Joseph Margulies from Cornell University, discussed its exploration of the constitutional distribution of war powers between the executive and legislative branches. Margulies noted that Zeisberg scrutinized the Constitution's language and structure and assessed the branches' governance capacities through historical case studies. He acknowledged that Zeisberg aimed to provide "common terms for deliberation" rather than definitive answers, ultimately concluding that while the book offers a new perspective, it "does nothing to dislodge the conviction shared by so many scholars" that war powers are inherently political.

### The Boston University Law Review's Symposium

The Boston University Law Review published a symposium on Stephen M. Griffin’s "Long Wars and the Constitution" and Mariah Zeisberg’s "War Powers: The Politics of Constitutional Authority." Held on October 30, 2014, the symposium featured essays by Griffin and Zeisberg critiquing each other's work, alongside contributions from Boston University faculty. The event focused on the historical debate over the division of war powers between the President and Congress.

#### Griffin's essay

Griffin introduced his essay on Mariah Zeisberg’s book on war powers by expressing admiration for her innovative approach and emphasized his respect for Zeisberg’s work and its future influence on scholarship, despite differences in their perspectives on presidential war powers post-1945.

##### Convergences

In his discussion of convergences with Zeisberg's work, Griffin critiqued the standard war powers debate, which focused heavily on presidential authority and congressional approval without considering the broader constitutional and historical context. He highlighted President Obama's 2014 military actions against ISIL as a case study, showing how the debate often overlooked the importance of interbranch deliberation and the political reality of presidential decisions made within a "security order." Griffin argued that Zeisberg's approach, which emphasized relational authority and processual standards, offered a more nuanced and historically grounded understanding of war powers.
Griffin further explored the limitations of the defensive war theory, tracing its development from early interpretations by figures like Alexander Hamilton and its application in historical contexts such as the Civil War and subsequent conflicts. He critiqued the rigid distinction between offensive and defensive wars, arguing that this binary was inadequate for understanding the complex decision-making processes involved in going to war. Instead, Griffin advocated for an approach that considered the strategic, policy-driven nature of war decisions and the necessity of interbranch collaboration as envisioned by the Constitution.

##### Divergences

Griffin highlighted the problematic nature of presidential war powers post-1945, citing ambiguous outcomes in conflicts such as Korea, Vietnam, Iraq, and Afghanistan, and questioned why major war decisions received less legislative scrutiny compared to significant domestic policies and critiqued the standard war powers debate for focusing too narrowly on congressional approval. Griffin suggested that the lack of genuine deliberation and the pro forma nature of congressional authorizations undermined the decision-making process, emphasizing the need to understand war powers within the broader historical and constitutional context.
Griffin also critiqued Zeisberg’s reluctance to engage with the eighteenth-century context of the Constitution's war clauses and argued that the post-1945 constitutional order had shifted, diminishing Congress's role in war decisions. He asserted that the executive branch's expanded capacities had led to a dominance that challenged the processual standards proposed by Zeisberg. Griffin advocated for a historicist approach to constitutional change, distinguishing between wars requiring congressional authorization and those where the president had pre-existing military capacity, and stressed the importance of meaningful interbranch deliberation to address contemporary war powers issues effectively.

##### Conclusion

In his conclusion, Griffin cited Robert Gates's memoir, "Duty," to underscore the unpredictable nature of war and the difficulty of exiting conflicts once they begin. Gates noted that political leaders often lose control once war starts and highlighted the executive branch's tendency to dismiss questions about exit strategies. Griffin emphasized that this tendency leads to prolonged conflicts and suggested that the American people deserve better decision-making in matters of war.

## Prizes

War Powers won the 2014 Richard E. Neustadt Prize for the best book on executive politics, awarded by the American Political Science Association. The award committee included Andrew Rudalevige, Bert Rockman, Mark Peterson, Karen Hult, and Rod Hart.

## Footnotes

* ↑ From the School of Law: Pnina Lahav, Gary Lawson, and Robert Sloane; From Department of Political Science: Douglas Kriner; and from Pardee School of Global Studies: Kaija Schilde.