Separation of Powers and the Commander in Chief: Congress’s Authority to Override Presidential Decisions in Crisis Situations


Reid Skibell


This paper represents an in-depth examination of Separation of Power issues raised in the context of the Legislative and Executive Branch’s exercise of their War Powers. Specifically, the paper considers the argument raised by the Bush Administration that Congress cannot constitutionally infringe on the President’s exercise of his Commander in Chief Power in the fight against terrorism. Such an argument would effectively insulate most Presidential decisions related to terrorism from Congressional oversight. The implication being that even if Congress wanted to accomplish something like ending the detainment of detainees at Guatanamo Bay it would be outside their Constitutional authority. The paper considers whether this argument is valid under either a formalist or more contextual view of Separation of Powers, and ultimately concludes that in any Branch conflict Congress should ultimately prevail.


Constitutional Law

Date of this Version

June 2004