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Great Cases Make Bad Law: The War Powers Act, 50 Texas Law Review 833 (1972)


Responding to the bitterness and tragedy of Vietnam, a group of Senators led by Jacob K. Javits of New York proposes fundamentally to change the constitutional relationship between President and Congress in the field of foreign affairs. They assert that the underlying cause of the Vietnam tragedy is a modem and most unconstitutional excess of presidential power—a shift in the rightful balance of authority between the two branches caused by presidential "usurpations" at least since the time of McKinley, and especially those they claim Lyndon B. Johnson made with regard to Vietnam.

Ignoring their own repeated votes for Vietnam, these Senators say, "We live in an age of undeclared war, which has meant Presidential war. Prolonged engagement in undeclared, Presidential war has created a most dangerous imbalance in our Constitutional system of checks and balances." Although Senator John Sherman Cooper has rightly criticized their theory as a rewriting of history, without factual foundation, these men have offered a Bill which in their view would correct nearly two hundred years of error, strip the Presidency of many of its most essential powers, and restore what they fondly imagine was the constitutional model of 1789.

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