When America attacked Iraq in 2002, it was the first preemptive war in the history of our nation. While there is daily debate over the wisdom and consequences of that action, the question whether the federal government even possessed the power under the Constitution to wage preemptive war does not seem to have been raised. Although the legal literature abounds with discussion about whether the President may authorize significant military operations without the explicit authorization of Congress, the author could not find a single work written in legal cases or commentary about preemptive war. This article considers this heretofore unanswered question of whether the federal government possesses the power to engage in preemptory war. Looking at a variety of sources, including America's use of military force throughout its history, the framer's view of war, and the political philosophy and religious views of the framers, the author concludes that such power is beyond that given the federal government in the Constitution. Thus, even were both the President and Congress to concur in such a war, with Congress making a formal declaration of war, the action would be unconstitutional. The article also explains why the Political Question Doctrine does not bar judicial review of whether or not a proposed use of military force is preemptive.
John B. Mitchell,
Preemptive War: Is It Constitutional, 44 SANTA CLARA L. REV. 497