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The Bush administration claims to have sweeping, inherent, and unchecked war powers to conduct its war against terror. These claims are inconsistent with the text of the Constitution, the Framers' intent, and the practice of the early leaders of the Republic. Judicial decisions in the first few decades after the Constitution's adoption affirmed the Framers' narrow view of executive war powers. This article will address the extent of the president's inherent powers to prosecute a war, whether Congress can regulate and limit the president's commander‐in‐chief power, and the role of the courts in deciding whether the president has overstepped his power in conducting warfare.

In September 2002, as the Bush administration was gearing up for a showdown with Iraq, the White House released its National Security Strategy, which announced a radical shift in American military policy. The United States had previously adhered doctrinally, if not always in practice, to the international rule that a nation may unilaterally launch a military attack against another nation only in strict self-defense, that is, in response to an armed attack or an imminent threat of an armed attack.Any other use of military force requires approval of the United Nations ("U.N.") Security Council, which must first find that a "threat to the peace, breach of peace, or act of aggression" exists, and then must authorize the use of force to remove that threat. The 2002 National Security Strategy maintained that the threat of catastrophic attacks with weapons of mass destruction by rogue states and/or terrorists demands a new, preemptive approach. The new doctrine insisted that unilateral recourse to war is justified not only to forestall imminent attacks, but to preempt non-imminent threats where the threats are large enough. The United States led invasion of Iraq was widely viewed as the first test of this preemptive war doctrine.

In recent years federal courts have faced a growing number of challenges to United States actions abroad. Citizens living abroad have brought claims alleging that their property was unlawfully taken or that their lives were threatened by United States governmental action. Aliens living in foreign countries have also invoked constitutional protections—Nicaraguans have alleged torture and assassination attributed to CIA activities in Central America; a Mexican alleged that his home in Mexico was searched by Drug Enforcement Agency officials without a search warrant; a Lebanese citizen claimed that he was unlawfully arrested and interrogated in international waters by U.S. agents; a Polish refugee tried for hijacking in a special United States court convened in Berlin sought the right to a jury trial. These cases test the extent to which the Constitution limits U.S. conduct abroad.