The Unwritten Rules of Constitutional War Powers: Presidential Norm Setting Since the Korean War

Despite the Constitution's delegation of the "power… to declare war" to the legislative branch, presidents fight unauthorized wars, conduct operations, and otherwise use armed forces to execute the policies of the United Sates. These patterns cannot be understood without reference to norms, the unwritten rules that govern presidential behavior. However, very few studies directly address or analyze the role that these norms play in presidential war-making. This thesis argues that presidential war powers have, at best, only loosely been regulated by laws and legal rules. Rather, presidential war powers have been governed by norms. Since the 1950s, presidents engaged in norm setting, the process in which an actor establishes new practices that are then accepted as justifiable by a substantial portion of society, even if such practices were previously unjustifiable. This thesis begins by examining norms prior to the Korean War, when presidents tended to exercise their war powers according to the original constitutional interpretation of the Declare War Clause. This thesis identifies the Korean War as a major turning point in which presidents broke away from previously established constitutional constraints to set new norms that allowed for more unilateral uses of war powers. I use evidence from reports made under the War Powers Resolution, legal memorandums, speeches, and other primary sources to illustrate that presidents (1) executed operations in a similar manner to the Korean War, and (2) cited the Korean War as legal precedent for their actions. Afterward, this thesis examines the behavior of presidents between 1973 and 2016. By coding and analyzing reports made by presidents under the War Powers Resolution, this thesis introduces quantitative evidence to show that presidents expanded their war powers while citing congressional authorizations less during that period. Paired with short narrative case studies, this evidence illustrates how presidents incrementally set new norms during that period. The thesis briefly addresses some questions about the implications and consequences of presidential norm setting. What options for legal course are available to check presidents? Why has Congress not defined legal rules and what can they do to restrain presidents? Why are we not in more conflicts if presidents have such broad authority to make norms? There are few avenues for legal recourse since the Supreme Court has generally avoided hearing cases about war powers. Congress most likely abdicated their constitutional responsibilities to check presidential war powers because they do not want to be liable for any negative consequences. Finally, while presidents may set new norms, those norms still adhere to limitations set by voters. They cannot do anything they want because their actions still need to be justifiab