文章基本信息

标题：Ending Perpetual War? Constitutional War Termination Powers and the Conflict Against Al Qaeda
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作者：Simon, David A.
期刊名称：Pepperdine Law Review
印刷版ISSN：0092-430X
电子版ISSN：2327-0268
出版年度：2013
卷号：41
期号：4
页码：1
出版社：Pepperdine University
摘要：This Article presents a framework for interpreting the constitutional war termination powers of Congress and the President and applies this framework to questions involving how and when the war against Al Qaeda and associated forces could end. Although constitutional theory and practice suggest the validity of congressional actions to initiate war, the issue of Congress’s constitutional role in ending war has received little attention in scholarly debates. Theoretically, this Article contends that terminating war without meaningful cooperation between the President and Congress generates tension with the principle of the separation of powers underpinning the U.S. constitutional system, with the Framers’ division of the treaty-making authority, and with the values they enshrine. Practically, this Article suggests that although the participation of both Congress and the President in the war termination process may make it more difficult to end a war, such cooperative political branch action ensures greater transparency and accountability in this constitutional process. This Article also examines normative questions about the role of the President and Congress in exercising their respective war termination powers, and argues that the treaty-making process represents an approach to war termination that best reflects the constitutional values of the interdependence of the political branches, while checking interbranch rivalry and preserving the constitutional and foreign relations prerogatives of Congress and the President.
关键词：War; congressional authorization; presidential authority; Authorization to Use Military Force; AUMF; Perpetual War; Constitutional Law; War Termination Powers; Al Qaeda