Limited War and the Constitution

Oona A. Hathaway, Yale Law School
Bruce Ackerman, Yale Law School


We live in an age of limited war. Since World War II, the wars waged by the United States have been of limited duration and purpose, but far from momentary. Yet the legal structure for authorizing and overseeing war has failed to address this modern reality. Nowhere is this failure more clear than in the recent U.S. conflict in Iraq. There, Congress self-consciously restricted the war’s aims to narrow purposes—expressly authorizing a limited war. But the Bush Administration evaded these constitutional limits and transformed what was a well-defined and limited war into an unlimited war operating beyond constitutional boundaries. The blame for this constitutional failure cannot be laid at the feet of the President alone. It was, instead, the result of a long-term erosion in Congress’s central power over the use of military force—the power of the purse. We offer a proposal that would allow Congress to reclaim some of the constitutional authority that it has allowed to slip away. We suggest a simple change in the House or Senate Rules to require that any authorization of military force specify the time period during which the war may lawfully continue before triggering further congressional review. The limit would be enforced by a prohibition on future war appropriations after the deadline, except the money necessary to wind down the mission. Since the President cannot veto changes in the rules of the House and Senate, our proposal provides a practical way in which Congress may effectively reassert its constitutional power over the use of military force.