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On September 5, 1917, at the height of American participation in the Great War, Charles Evans Hughes famously argued that "the power to wage war is the power to wage war successfully." This moment and those words were a collision between the onset of "total war," Lochner-era jurisprudence, and cautious Progressive-era administrative development. This article tells the story of Hughes's statement – including what he meant at the time and how he wrestled with some difficult questions that flowed from it. The article then concludes with some reasons why the story remains important today.

The U.S. Constitution's allocation of military authority has adapted over time to major shifts in American power and grand strategy. This paper explains, with a focus on U.S. military actions in East Asia and possible scenarios of special joint concern to the United States and Japan, that the president in practice wields tremendous power and discretion in using military force. Although formal, legal checks on the president's use of force rarely come into play, Congress nevertheless retains some political power to influence presidential decision-making. The president's powers are also constrained by interagency processes within the executive branch, and alliance relations often feed into those processes.

Contrary to popular view, cyberattacks alone are rarely exercises of constitutional war powers – and they might never be. They are often instead best understood as exercises of other powers pertaining to nonwar military, foreign affairs, intelligence, and foreign commerce, for example. Although this more fine-grained, fact-specific conception of cyberattacks leaves room for broad executive leeway in some contexts, it also contains a strong constitutional basis for legislative regulation of cyber operations.

I have long believed two things about constitutional war powers, which my reading of Noah Feldman's "The Three Lives of James Madison" largely confirmed. First, James Madison was brilliant and prescient about many things, but the strategy and politics of war were not among them. Second, modern constitutional critics of an imperial presidency place too much weight on the declare war clause – and especially Madison's statements about it. Madison, indeed, worried deeply about unchecked presidential war powers. But Feldman's book shows that Madison did not emphasize the same risks and checks so often ascribed to him today, especially by congressionalists who invoke Madison's statements about war-initiation.

The U.S. Constitution vests the president with "executive power" and provides that "The President shall be Commander in Chief of the Army and Navy," while it endows Congress with the power "To declare War." These provisions have given rise to two major questions about presidential war powers: first, what should be the president's role in taking the country to war, and, second, what are the president's powers to direct its conduct. Historian Michael Beschloss's new book, "Presidents of War," examines how presidents have responded to each of these questions across two hundred years of U.S. history. The major argument of this book is that presidents have gradually assumed greater power over decisions to go to war – contrary, in his view, to the constitutional founders' vision. Although the book does succeed in offering some new insights into how that accretion of that power occurred, its more original contribution lies in its depictions of how presidents have handled and managed the tasks of waging war. Those responsibilities for the management and supervision in the conduct of America's wars have grown more complex as warfare has evolved – and they, too, look nothing like what the founders expected or might even have imagined. The book also puts an important focus on the continually shifting relationship between war-initiation powers and war-waging powers throughout the course of American history.

The "Caroline" incident – an 1837 raid by British Canadian militia across the Niagara River border to sink an American steamboat being used by Canadian insurgents – is well-known to many international lawyers. United States Secretary of State Daniel Webster's resulting correspondence with British representative Lord Ashburton is often cited today as a key authority on customary international self-defense standards. University of Ottawa professor Craig Forcese has produced a valuable new history and analysis of that event, its legal context, and its continuing influence: "Destroying the Caroline: The Frontier Raid that Reshaped the Right to War." As explained in this review, the book corrects some misunderstandings about the incident and shows its continuing relevance to contemporary international legal debates about military force. It also helps in understanding this period of U.S. foreign relations law, especially with regard to powers of war and peace.

A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. In it he uttered his famous axiom that "the power to wage war is the power to wage war successfully." That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes's own research notes, this Article examines his 1917 formulation and shows how Hughes presciently applied it to the most pressing war powers issues of its day – namely, a national draft and intrusive federal economic regulation. Though critical to supporting American military operations in Europe, these were primarily questions about Congress's domestic authority – not the sorts of interbranch issues that naturally come to mind today in thinking about "waging war." This Article also shows, however, how Hughes struggled unsuccessfully to define when war powers should turn off or revert to peacetime powers. The story of Hughes's defense of (and later worry about) expansive wartime powers in World War I sheds much light on present constitutional war powers and debates about them, including in the context of indefinite and sweeping wars against transnational terrorist groups.

Important international law questions for formulating cyber strategy and policy include whether and when a cyber-attack amounts to an "act of war," or, more precisely, an "armed attack" triggering a right of self-defense, and how the international legal principle of "sovereignty" could apply to cyber activities. International law in this area is not settled. There is, however, ample room within existing international law to support a strong cyber strategy, including a powerful deterrent. The answers to many international law questions discussed below depend on specific, case-by-case facts, and are likely to be highly contested for a long time to come. This means that the United States should continue to exercise leadership in advancing interpretations that support its strategic interests, including its own operational needs, bearing in mind that we also seek rules that will effectively constrain the behaviors of others.

A century ago and in the midst of American involvement in World War I, future Chief Justice Charles Evans Hughes delivered one of the most influential lectures on the Constitution in wartime. It was in that address that he uttered his famous axiom that "the power to wage war is the power to wage war successfully." That statement continues to echo in modern jurisprudence, though the background and details of the lecture have not previously been explored in detail. Drawing on Hughes's own research notes, this Article examines his 1917 formulation and shows how Hughes presciently applied it to the most pressing war powers issues of its day – namely a national draft and intrusive federal economic regulation. It also shows, however, how he struggled unsuccessfully to define when war powers should turn off, or revert to peacetime powers. The story of Hughes's defense of (and later worry about) expansive wartime powers in World War I sheds much light on present constitutional war powers and debates about them, including in the context of wars against transnational terrorist groups.

Existing war powers scholarship focuses overwhelmingly on the President's power to initiate military operations abroad and the extent to which that power is constrained by Congress. It ignores the allocation of legal power to threaten military force or war, even though threats – to coerce or deter enemies and to reassure allies – are one of the most important ways in which the United States government wields its military might. This paper fills that scholarly void, and draws on recent political science and historical scholarship to construct a richer and more accurate account of the modern presidency's powers to shape American security policy. The swelling scope of the President's practice in wielding threatened force largely tracks the standard historical narrative of war powers shifting from Congress to the President. Indeed, adding threats of force to that story might suggest that this shift in powers of war and peace has been even more dramatic than usually supposed. This Article shows, however, that congressional influence operates more robustly – and in different ways – than usually supposed in legal debates about war powers to shape strategic decision-making. In turn, these mechanisms of congressional influence can enhance the potency of threatened force. By refocusing the debate on threatened force and its credibility requirements, this Article also calls into question many orthodoxies of the policy advantages and risks attendant to various allocations of legal war powers. Instead of proposing a policy-optimal solution, the Article concludes that the allocation of constitutional war powers is – and should be – geopolitically and strategically contingent. The actual and effective balance between presidential and congressional powers over war and peace in practice necessarily depends on shifting assumptions and policy choices about how best to secure U.S. interests against potential threats.