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The terrorist attacks on the United States on September 11, 2001 raised important questions concerning the President's authority to take military action in response. Although Congress acted promptly to pass legislation authorizing the President to take military action against the terrorists and those linked to them, we argue that the President has broad constitutional power, even without such legislation, to deploy military force to retaliate against those implicated in the September 11 attacks. Congress acknowledged this inherent executive power in its recent legislation, as it had earlier in the War Powers Resolution. Further, the President has the inherent power not only to retaliate against any person, organization, or state suspected of involvement in terrorist attacks on the United States, but also against foreign states suspected of harboring or supporting such organizations. Finally, we argue that the President's constitutional authority to deploy military force against terrorists and the states that harbor or support them includes both the power to respond to past attacks and the power to act preemptively against future ones. Our analysis falls into four parts. First, we examine the constitutional text and structure We conclude that the Constitution vests the President with the plenary authority, as Commander in Chief and the sole organ of the nation in its foreign relations, to use military force abroad, especially in response to grave national emergencies created by sudden, unforeseen attacks on the people and territory of the United States. Second, we confirm that conclusion by reviewing executive and judicial statements and decisions interpreting the President's constitutional powers. Third, we analyze the relevant historical precedent, which supports the argument for Presidential authority in these matters. Finally, we discuss congressional enactments that acknowledge the President's full authority to use force both to respond to the September 11 attacks on the United States and to deter future strikes of that nature.

This essay, a contribution to a fall symposium at the Oklahoma City University law school, examines the Supreme Court's Commerce Clause jurisprudence in light of the Supreme Court's decision last Term in United States v. Morrison. Morrison found unconstitutional the Violence Against Women Act because its reach exceeded that permitted to the federal government under Article I, Section 8 of the Constitution. We argue that the Court's restrictions on the commerce power, while certainly a departure from previous directions in the federalism area, alone present no drastic or revolutionary limitations on the federal government's ability to achieve its policies. Some might fear that Morrison will prevent Congress from using the Commerce Clause to reach noncommercial, intrastate activity. Other powers, however, such as the Spending and Taxing Clauses, provide Congress with alternative opportunities to reach beyond the new restrictions on the Commerce Clause. Even the Court's current pronouncements on the Commerce Clause provide Congress with ample power to reach a great deal of conduct. Due to the national integration of the economy and society, the channels and instrumentalities prongs of the Commerce Clause provide substantial authority to establish uniform federal rules over a vast amount of noncommercial conduct. Even if Congress wishes to intrude even further into intrastate activity, the Court's effort to impose the barrier at economic activity may prove sufficiently permeable to allow federal jurisdiction over most things that Congress would want to regulate. If the Court intends to impose serious restraints on Congress, its recent efforts in the Commerce Clause area can only be the early steps.

In the wake of the 2000 Election, the relationship between the Supreme Court and the American states has become more important. Once derided by the Supreme Court as a 'truism,' the Tenth Amendment has in recent years been transformed from a neglected provision into a vital 'first principle.' As such, it has provided the foundation for a series of decisions in which the Supreme Court has elevated the status of the states, often at the expense of federal power and in the face of previously settled assumptions. In this important volume, four prominent scholars--two historians and two law professors--examine carefully one of the central tenets in the Supreme Court's recent Tenth Amendment jurisprudence: the assumption that the results fashioned by a narrow majority are compelled by history and consistent with the intentions of the framers. They shed important new light on a series of decisions that mark a major change in our thinking about the nature of a constitutional system within which both the federal government and the states properly regard themselves as sovereign entities.

Frontmatter -- Contents -- Acknowledgments -- Introduction -- Prolegomena for a Sampler: Extrajudicial Interpretation of the Constitution, 1789–1861 -- Congressional Attitudes toward Constitutional Interpretation -- Constitutional Analysis by Congressional Staff Agencies -- Hearing about the Constitution in Congressional Committees -- The Federal Appointments Process as Constitutional Interpretation -- Lawyers in Congress -- Congressional Responses to Judicial Review -- Court, Congress, and Civil Rights -- Quasi-Constitutional Law: The Rise of Super-Statutes -- Congressional Fact Finding and the Scope of Judicial Review -- Institutional Design of a Thayerian Congress -- Evaluating Congressional Constitutional Interpretation: Some Criteria and Two Informal Case Studies -- Can Congress Be Trusted with the Constitution? The Effects of Incentives and Procedures -- About the Contributors -- Index