Constitution Neg

This case
 Outlines presidential powers – contextual under Constitution
 Use what the AUMF grants – not what it’s been used for
 Explains that AUMF grants president powers that were under Constitutional authority
 Key cards:
o https://www.yalelawjournal.org/article/the-executive-power-over-foreign-affairs (VERY
IMPORTANT)
 Just change the name of the contention every time – the vested powers, the Constitutional
context, the inherent authority,

Case:

Supreme Court Justice Robert Jackson explains that actual governing can’t be based
on parts of the Constitution ripped from context. Since the powers granted by the
Authorization for Use of Military Force meets these Constitutional powers when
they’re interpreted in context, Nathaniel and I negate: “Resolved: On balance, current
Authorization for Use of Military Force gives too much power to the president.”
Justia Law, 6-2-1952, "Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)," https://supreme.justia.com/cases/federal/us/343/579/case.html

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the
Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence,
autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress. We may well begin by a somewhat over-simplified grouping of practical
situations in which a President may doubt, or others may challenge, his powers, and by distinguishing roughly the legal consequences of this factor of relativity. 1. When the President acts pursuant to an express or implied
authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be
worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed [execution] by
the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might
attack it. Action absent congressional grant or denial causes self-reliance on independent power – this creates power-concurrent zone of twilight. Concurrent authority distribution causes congressional inertia to enable action –
shaky situation – destroys any test of power. 2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which
he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures
on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 3. When the President
takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter
Into which of these classifications does this executive seizure of the steel industry fit? It is eliminated from the first by admission, for it is conceded that no congressional authorization exists for this seizure. That takes away also
the support of the many precedents and declarations which were made in relation, and must be confined, to this category. Can it then be defended under flexible tests available to the second category? It seems clearly
eliminated from that class because Congress has not left seizure of private property an open field but has covered it by three statutory policies inconsistent with this seizure.... In choosing a different and inconsistent way of his
own, the President cannot claim that it is necessitated or invited by failure of Congress to legislate upon the occasions, grounds and methods for seizure of industrial properties. This leaves the current seizure to be justified only by
the severe tests under the third grouping, where it can be supported only by any remainder of executive power after subtraction of such powers as Congress may have over the subject. In short, we can sustain the President only by
holding that seizure of such strike-bound industries is within his domain and beyond control by Congress. Thus, this Court's first review of such seizures occurs under circumstances which leave presidential power most vulnerable
to attack and in the least favorable of possible constitutional postures.... The essence of our free Government is "leave to live by no man's leave, underneath the law" - to be governed by those impersonal forces which we call law.
Our Government is fashioned to fulfill this concept so far as humanly possible. The Executive, except for recommendation and veto, has no legislative power. The executive action we have here originates in the individual will of the
President and represents an exercise of authority without law. No one, perhaps not even the President, knows the limits of the power he may seek to exert in this instance and the parties affected cannot learn the limit of their
rights. We do not know today what powers over labor or property would be claimed to flow from Government possession if we should legalize it, what rights to compensation would be claimed or recognized, or on what
contingency it would end. With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law, and that the law be made by
parliamentary deliberations.
Framework
 Definition
The Authorization for Use of Military Force, or the AUMF, is a 2001 law granting the
President the ability to use necessary force against terrorist groups that carried out
the 9/11 attack. We should look to this policy specifically, since in the 2001 AUMF’s
text, it explicitly says to refer to it as the “Authorization for Use of Military Force.”
 Our framework is the Constitution in context.
Saikrishna Prakash of the Yale Law Journal writes that many scholars and judges
falsely assume that the Constitution is inapplicable to foreign affairs powers.
However, he continues that this only works if the Constitution is interpreted outside
of its historical context.
Saikrishna B. Prakash, Michael D. Ramsey, 10-16-2001, "The Executive Power over Foreign Affairs," Yale Law Journal, https://www.yalelawjournal.org/article/the-executive-power-over-foreign-affairs

No foreign affairs scholar writes on a clean slate. Many eminent scholars and judges have labored to make sense of the Constitution’s allocation of foreign affairs powers. Although these attempts often have little in common,
they share one trait: They have given up on the Constitution. The received wisdom would have us believe that the foreign affairs Constitution contains enormous gaps that must be filled by reference to extratextual sources:
practice, convenience, necessity, national security, international relations law and theory, inherent rights of sovereignty, and so forth. Yet reaching for these extratextual sources casts doubt on the entire enterprise, for one would
think that the Constitution’s text ought to play the preeminent role in discerning the Constitution’s allocation of foreign affairs powers. Perhaps due to the array of extratextual sources brought to bear, modern scholarship
remains without a coherent and complete theory of the constitutional division of foreign affairs powers. First, there is no adequate explanation of the source and scope of the foreign affairs powers of the President. It is
conventional wisdom that the President is, at minimum, the “sole organ” of communication with foreign nations and is empowered to direct and recall U.S. diplomats. Many scholars would go further, asserting that the President is
the primary locus of foreign affairs power. Yet the President’s enumerated powers do not seem to convey anything approaching even the minimum powers everyone assumes the President to enjoy. Second, there is no adequate
explanation of the foreign affairs powers of Congress. Most scholars assume that Congress has a general power to legislate in foreign affairs matters, and many argue that Congress, rather than the President, should be the
dominant decisionmaker. But the enumerated foreign affairs powers of Congress, while seemingly broader than the President’s, also do not apparently encompass the full extent of the foreign affairs powers Congress is thought
properly to exercise. Third, and most importantly, modern scholarship has achieved no consensus on even the most basic framework for resolving disputes over the allocation of particular foreign affairs powers not specifically
mentioned in the Constitution’s text. To pick a few examples, the power to terminate treaties, to enter into executive agreements, and to establish and enforce U.S. foreign policy are heatedly and inconclusively debated with no
apparent hope of converging upon a common approach. We need to wipe the foreign affairs slate clean and start over. In our view, modern scholarship should stop assuming that the Constitution’s text says little about foreign
affairs and stop treating foreign affairs powers as “up for grabs,” to be resolved by hasty resort to extratextual sources. Outside the foreign affairs field, constitutional scholars agree that the text is the appropriate starting
point . That should be true of foreign affairs scholarship as well. In this Article, we hope to show that the Constitution’s text, properly construed, answers the supposedly perplexing foreign affairs questions posed above. We argue
that the text supplies four basic principles that provide a framework for resolving controversies over the source and allocation of foreign affairs powers.1 First, and most importantly, the President enjoys a “residual” foreign
affairs power under Article II, Section 1’s grant of “the executive Power.”2 As we seek to establish in this Article, the ordinary eighteenth-century meaning of executive power—as reflected, for example, in the works of leading
political writers known to the constitutional generation, such as Locke, Montesquieu, and Blackstone—included foreign affairs powers. By using a common phrase infused with that meaning, the Constitution establishes a
presumption that the President will enjoy those foreign affairs powers that were traditionally part of the executive power.3 Second, the President’s executive power over foreign affairs is limited by specific allocations of foreign
affairs power to other entities—such as the allocation of the power to declare war to Congress. Thus, the President has a circumscribed version of the traditional executive power over foreign affairs. Notwithstanding the common
understanding of executive power, the President cannot regulate international commerce or grant letters of marque and reprisal. Third, Congress, in addition to its specific foreign affairs powers, has a derivative power to
legislate in support of the President’s executive power over foreign affairs and its own foreign affairs powers. But contrary to the conventional view, Congress does not have a general and independent authority over all foreign
affairs matters. In particular, Congress cannot establish relations with a foreign country or establish foreign policy. Fourth, the President’s executive power over foreign affairs does not extend to matters that were not part of the
traditional executive power, even where they touch upon foreign affairs. In particular, the President cannot claim power over appropriations and lawmaking, even in the foreign affairs arena, by virtue of the executive power. That
is to say, the President is not a lawmaker, even in foreign affairs.

He continues that without using the Constitution’s text, there’s no real way to resolve
disputes about Presidential power, since there’s no foundation to justify different
solutions. That’s why he concludes that the Constitution is the only real guide that we
can use to decide Presidential power.
I. THE SHORTCOMINGS OF MODERN FOREIGN AFFAIRS SCHOLARSHIP Modern discussion of the Constitution’s allocation of foreign affairs powers suffers from two acute embarrassments. First, beyond the powers to declare war
and enter into treaties, the discourse largely ignores the Constitution’s text. A common tenet of scholars who agree on little else is that once one moves beyond the war and treaty-making powers, the Constitution itself has little
to say about the relative roles of the President and Congress, but rather contains substantial gaps that compel resort to other considerations. Accordingly, a host of nontextual factors—practice, convenience, necessity, national
security concerns, international relations theory, international law, inherent rights of sovereignty, and so forth— drives “constitutional” scholarship in this area. Second, modern foreign affairs scholarship has failed to provide a
satisfactory account of the source and allocation of presidential and congressional foreign affairs powers. Scholars heatedly and inconclusively debate whether the President or Congress should have the supreme role in foreign
affairs, and have sharp and seemingly insoluble disagreements over the allocation of particular foreign affairs powers, such as the power to terminate treaties, the power to set foreign policy, and the power to enter into executive
agreements. Each branch has its able academic advocates, but there seems little prospect of resolution, or even agreement upon what the relevant considerations should be. And even when foreign affairs scholars agree upon
an appropriate allocation in a particular area, they cannot explain why the conventional allocation is the correct one. Most everyone agrees, for example, that the President speaks for the United States in the international sphere
and can instruct and recall ambassadors, and most agree that Congress can legislate with respect to a wide range of foreign affairs and national security matters. Yet there is little attempt to explain how these allocations cohere
with the Constitution’s text or to construct from these allocations a comprehensive theory of foreign affairs powers.5 The second difficulty is closely related to the first. Foreign affairs scholars have too quickly assumed that the
Constitution’s text does not adequately allocate foreign affairs powers. By discarding the textual moorings of constitutional law, however, they have been left adrift with no satisfactory guide in resolving these matters. A few
examples illustrate why modern foreign affairs scholarship is lost.

Prakash explains that to view the power of the president over foreign affairs
specifically, we must start with the text of the Constitution. However, he continues
that we can’t stop at the text – we must look to the context in which the text was
written. He continues that looking to Presidential power specifically, we’ll look to
Article II, where the President is granted his executive power. In our case, we’ll
interpret this power in its context.
In our view, a textual theory of foreign affairs begins with the Constitution’s text . In particular, it must be based upon a reading of actual words in the Constitution, not deduced from some broader theory of government
(whether one’s own or one purportedly held by the Framers). It does not, however, end with the text. Words have no meaning in a vacuum, shorn of their context. To discern that context, one must look outside the text. Indeed,
even when legal texts contain definitions, the definitions themselves are composed of words that must be understood by reference to meanings “external” to the text. Not surprisingly, our textual theory is not just an extended
citation to the Constitution’s text. Further, we think the appropriate context from which to discern the meaning of the words in a legal document is the context in which they were written. Hence, our goal is to try to make sense
of the Constitution’s text as it would have been understood in the Founding era. Finally, we think the best evidence of the meaning of a text is to see how intelligent and engaged people at the time it was written commonly
understood the words it employs. Accordingly, in seeking a textual theory of constitutional foreign affairs power, we look first to the actual words of the Constitution—specifically, to the grant of “the executive Power” in
Article II, Section 1. But to understand the meaning of the phrase “the executive Power,” we must look to its context, and in particular to the way those words were commonly used. Hence the bulk of our discussion is directed
toward establishing an eighteenth-century meaning of executive power.
Prakash furthers that interpreting the Constitution in context allows for us to
understand the President’s foreign affairs powers, continuing that this is the most firm
way to interpret Article II, where the President receives his power. That’s why he
concludes that when the Constitution is interpreted in context, we get a sound,
comprehensive framework, with no gaps for measuring the Presidential powers given
by the Constitution.
Below we begin the task of wiping the foreign affairs slate clean and writing anew. Part I highlights the difficulties of modern foreign affairs scholarship, including its repeated denial that the Constitution’s text can provide much
meaningful guidance in allocating foreign affairs powers. Part II details the four fundamental principles that we derive from the Constitution’s text and that provide a comprehensive framework for addressing foreign affairs
disputes. This Part further illustrates how these principles are consistent with the Constitution’s text read as a whole and how they provide guidance in the resolution of key dilemmas of foreign affairs law. Part III begins the task of
establishing the common eighteenth-century understanding of executive power by discussing the usage of that phrase in eighteenth-century political thought. In this Part we show that eighteenth-century political theory
included foreign affairs powers as part of the executive power , thus providing a firm foundation for our reading of Article II, Section 1. In Part IV we discuss foreign affairs powers under the Articles of Confederation, illustrating
first that the Continental Congress’s exercise of foreign affairs powers was commonly called “executive” power, and second that serious practical problems arose from a multimember body’s exercise of the executive foreign affairs
powers. In Part V we consider the Philadelphia Convention, in which delegates shifted portions of the executive power of the Continental Congress to a single President. We show how both background understandings of the
phrase “executive power” and specific discussion by the delegates confirm a reading of executive power to include foreign affairs powers. We also show how dissatisfaction with the breadth of the traditional executive power over
foreign affairs led the delegates to allocate certain foreign affairs powers elsewhere, laying the foundation for our interpretation of these allocations as exceptions carved out of the President’s executive power. Part VI addresses
the ratifying conventions, and shows that their discussions of foreign affairs are consistent with our view of unallocated foreign affairs powers as presidential executive powers. Finally, Part VII examines the Washington
Administration and finds a usage and practice that closely conform to our theory of executive power over foreign affairs. Our framework reveals that there are no gaps in the Constitution’s allocation of foreign affairs powers .
The Constitution’s text supplies a sound, comprehensive framework of foreign affairs powers without appeal to amorphous and disputed extratextual sources. Moreover, there is substantial evidence that this textual
framework is the correct interpretation of the Constitution, as it comports with usage and practice before, during, and after the Constitution’s ratification. Finally, other theories or frameworks have a rather difficult time of
accounting for the evidence supporting our framework. To slight the foreign affairs meaning of executive power is to downplay Locke, Montesquieu, Blackstone, Washington, Jay, Jefferson, Hamilton, and even Madison.

Given this, this debate will be judged under whether the AUMF grants the president
more power than is Constitutionally appropriate. This means that rather than looking
to how random Presidents have used the AUMF to justify action, which can vary from
President to President, we need to look to what power the AUMF explicitly grants. If
we’re able to prove that the power the AUMF grants does not go past the President’s
constitutional powers, we’ll win the debate.
 Our sole contention is the context.
When interpreting the Constitution in context, we see that the power the AUMF
grants is fully Constitutional. We’ll look to the context of the time when the
Constitution was written.
Michael Ramsey of the Yale Law Journal writes that the Constitution’s foreign affairs
framework grants the president residual power. This is because of the context in
which the Constitution was written. He explains that Article II vests executive power
in the President. This is crucial, since “executive power” at the time had a very specific
meaning. Given political writers and understandings at the time, Ramsey explains that
at the time the Constitution was written, executive power was understood to mean
both power to execute laws, and power over foreign affairs.
In our view, the Constitution’s text reflects a foreign affairs framework that can be described with four basic principles.

First, the President’s executive power includes a general power over foreign affairs. By the first sentence of Article II, “the executive Power shall be vested” in the President.88 Executive power, as commonly understood in the
eighteenth century, included foreign affairs powers. As we elaborate below, Locke, Montesquieu, and Blackstone, the great political philosophers most familiar to the Framers, said that foreign affairs powers were part of the
executive power.89 Under the English system, as these writers described it, the Crown’s powers over foreign affairs arose from its executive power. This was also the terminology of American writers and political leaders
immediately before, during, and after the Constitution’s ratification. Hence, in 1787, when the Constitution provided that the President would have “the executive Power,” that would have been understood to mean not only
that the President would have the power to execute the laws (the primary and essential meaning of “executive power” 90), but also that the President would have foreign affairs powers. As a result, the starting point is that
foreign affairs powers are presidential, not from some shadowy implication of national sovereignty, per Curtiss-Wright, but from the ordinary eighteenth-century meaning of executive power.91

That power is limited, however, since he explains that while these traditionally
executive foreign affairs powers were presidential, the Constitution limited these
powers by giving some of them to other branches.
Second, the President’s executive foreign affairs power is residual, encompassing only those executive foreign affairs powers not allocated elsewhere by the Constitution’s text. The Constitution’s allocation of specific foreign
affairs powers or roles to Congress or the Senate are properly read as assignments away from the President. Absent these specific allocations, by Article II, Section 1, all traditionally executive foreign affairs powers would be
presidential. Perhaps, one could say from the text alone, some of the specific allocations might only grant Congress a shared power and not deny it to the President. The War Power Clause, for example, says only that Congress can
declare war, not (in so many words) that the President cannot. But, as we describe below, it is clear from context that everyone at the time understood the War Power Clause (and others like it) as giving the power to Congress
and denying it to the President. The Constitution’s drafters believed that the English system afforded too much foreign affairs power to the monarch through the undivided possession of the executive power, and that some
aspects of the traditional executive power over foreign affairs had legislative overtones (including the war and treaty-making powers).92 Accordingly, they divided the traditional executive power over foreign affairs by creating
specific (but very substantial) exceptions to the general grant of executive power to the President. In the document they created, many key foreign affairs powers were either shared—such as the power to appoint ambassadors
or make treaties—or allocated elsewhere—such as the power to declare war and issue letters of marque. As a result, once the drafting was complete, the President had a greatly diminished foreign affairs power as compared to
the English monarchy.93 But the President retained a residual power—that is, the President, as the possessor of “the executive Power,” had those executive foreign affairs powers not allocated elsewhere by the text. In short,
far from suffering from huge gaps, the Constitution has a simple default rule that we call the “residual principle”: Foreign affairs powers not assigned elsewhere belong to the President, by virtue of the President’s executive
power; while foreign affairs powers specifically allocated elsewhere are not presidential powers, in spite of the President’s executive power.

However, Ramsey concludes that all other foreign affairs powers that aren’t
enumerated for other branches are given to the president. Since the context of the
time was that executive powers were both the power to execute laws and power over
foreign affairs, the Constitution grants the President sole power over the majority of
foreign affairs.
Third, the President’s executive power over foreign affairs does not exceed the powers of the eighteenth-century English monarch over foreign affairs. This is a necessary corollary to the first principle, by which the President
derives residual foreign affairs authority from the ordinary eighteenth-century understanding of “executive power.” If the English monarch, the executive most immediately described by Locke, Montesquieu, and Blackstone, lacked
a certain power, one would not think that the ordinary understanding of executive power could encompass it. Although the Crown had great power over foreign affairs, two powers that it generally lacked were the powers of
legislation and finance. With limited exceptions, the Crown relied on Parliament to enact legislation and appropriate money in support of foreign policy goals. Because executive power did not include these powers, they were not
granted to the U.S. President as a residual element of the executive power over foreign affairs. Congress has the appropriations power, unconstrained by any constitutional obligation to support presidential foreign affairs
initiatives (since that obligation never existed in the English Parliament),94 and Congress (and not the President) has the power to make law in support of foreign policy goals because the traditional executive power did not include
the power to enact foreign affairs legislation.95

Fourth, Congress has only its specifically enumerated powers in foreign affairs, but these include a power to legislate in support of the President. A textual approach compels the conclusion that Congress has only the powers
granted to it by the text.96 No provisions in Article I, Section 8 (the relevant text), either considered individually or taken together, amount to a comprehensive congressional authority over foreign affairs. But Congress has two
important sources of lawmaking authority that, taken together, almost add up to a general power.97 Congress, of course, enjoys explicit legislative powers in particular areas of foreign affairs, such as the power to regulate foreign
commerce, declare war, etc., plus the power to make laws “necessary and proper” to effectuate these powers.98 From our second and third principles, it should be clear that these are independent powers of Congress, which can
be exercised despite presidential opposition.99 In addition, Congress also may invoke the Necessary and Proper Clause to carry into execution the powers granted to the President by the Constitution. From our first principle, this
includes the power to carry into execution the President’s residual foreign affairs powers. Thus Congress has the general power to legislate in support of the President’s foreign policy goals. But this general power—unlike
Congress’s specifically enumerated powers—is subject to a key limitation. Since it is derivative of the President’s power, it must be exercised in coordination with, and not in opposition to, the President.100

As a result the Constitution achieves a complex series of interbranch checks in foreign affairs. The President has a residual executive power, which means that only the President can speak for the United States on the
international stage and can formulate foreign policy (narrowly understood).101 At the same time, the President must rely on Congress (or two-thirds of the Senate) to give foreign policy any domestic legal effect. Congress can
pursue foreign affairs goals independently from the President through legislation in areas where it has a specifically enumerated power, such as foreign commerce. In other areas, where Congress has only derivative power, it can
act to support the President (or it can refuse to act), but it cannot pursue independent objectives. No single branch, acting alone, has complete control over the course of U.S. foreign affairs.
This includes the AUMF. To explain this foreign affairs power, Ramsey points to the
influential political writers of the time – Locke, Blackstone, and Montesquieu.
It goes without saying that the phrase “executive power” encompassed different types of powers through the ages. William Gwyn, the preeminent historian of the separation of powers of the 1650 to 1750 era, writes that during
that period, the executive power consisted of the present-day categories of executive power and judicial power.136 Both of these subcategories involved law execution, the quintessential executive function.137 Of course, we wish
to reveal an alternative sense of executive power—a foreign affairs sense. The writings of John Locke, Baron de Montesquieu, and William Blackstone, among others, reveal this secondary meaning of executive power and also
disclose the gradual enlargement of executive power beyond its traditional law enforcement sphere.

John Locke, a writer who laid much of the basis for the Constitution, explained that
federative powers, specifically authority over war, are held by whoever has executive
power.
Penned in the late seventeenth century, John Locke’s Second Treatise of Government hastened the process by which executive power took on its foreign affairs component.138 By confirming the close and necessary
relationship between the executive and “federative” powers—i.e., the law execution power and the foreign affairs power—Locke laid the groundwork for Montesquieu, Blackstone, and others who confirmed that the
federative power was an integral branch of the executive power. Just as he did with the law-execution power, Locke traced the federative power to his celebrated state of nature. According to Locke, in the state of nature each
individual had the “natural” power of interacting with other individuals. When individuals created civil society, however, things stood differently. Individuals still arranged their relationships within a particular civil society. The
government, however, assumed the federative power. Locke defined that power as including authority over “ war and peace, leagues, and alliances, and all the Transactions with all Persons and Communities” outside of the
state.139 Because the state enjoyed the federative power, it acted on behalf of civil society in international affairs, and any injury done to a member of the society by outsiders was regarded as an injury to the society as a
whole.140 Where did the federative power rest? With whoever wielded the executive power. Although the two powers were distinct in Locke’s treatment—the executive power consisted of executing the municipal laws within
society and the federative power related to the management of the security and interests of the public outside the society—the two powers, he said, “are always almost united.” 141 Indeed, they “are hardly to be separated, and
placed . . . in the hands of distinct Persons” because both require the command of the “force of the Society.” 142 To vest these distinct but related authorities in independent hands would be impracticable and would invite
“disorder and ruine” because the “Force of the Publick” would be divided.143 Although the executive and federative powers were inevitably joined, Locke argued that they were subject to different constraints. For instance, the
executive power’s execution of the law could be restrained by standing law. In contrast, successful exercises of the federative power necessarily required discretion. As Locke put it, although the federative power was of great
consequence, it should not be restrained by “antecedent, standing, positive Laws.” 144 After all, what should be done in relation to foreigners depends “upon their actions, and the variations of designs and interests” and thus
cannot be delineated in advance.145 Hence, those who enjoyed the federative power must prudently and wisely employ their discretion for the benefit of society.146 Nonetheless, although Locke distinguished the two powers
(and their constraints), they were always lodged together. As M.J.C. Vile put it, Locke’s federative/executive distinction was “one of function only.” 147 Indeed, perhaps in recognition of the extremely close relationship between
the powers, Locke sometimes used executive power interchangeably with the federative power. For instance, at one point he observed that the executive power determines “how far Injuries from without [society] are to be
vindicated.” 148 Although the powers were distinct as a theoretical matter, Locke could cite the powers interchangeably, because he had stated that they were inseparable.

William Blackstone, the Vinerian Professor of Law at Oxford at the time, explained
that the foreign affairs powers were vested within the executive, concluding that the
executive has the sole prerogative of making war.
William Blackstone’s treatment of separation of powers owed an unmistakable debt to Montesquieu.154 Not surprisingly, the Vinerian Professor of Law at Oxford also described the foreign affairs authority as an executive
endowment. Early in his influential Commentaries on the Laws of England, Blackstone noted that “[t]he supreme executive power of these kingdoms is vested by our laws in a single person.” 155 He began his enumeration of those
prerogatives, “the exertion whereof consists the executive part of government,” 156 with a discussion of “foreign concerns.” 157 Blackstone proceeded to enumerate the King’s foreign affairs authority: He “has the sole power of
sending embassadors to foreign states, and receiving embassadors at home”;158 he may “make treaties, leagues, and alliances with foreign states and princes”;159 he has “the sole prerogative of making war and peace”;160 and
he has the power of issuing letters of marque and reprisal when his subjects have suffered some depredation at the hands of a foreign country and have not received satisfaction.161 According to Blackstone, the executive power
“is the delegate or representative of his people” who transacts with “another community” because it is impossible for individuals of one community to transact directly “the affairs of that state” with another.162 Had there not
been a foreign relations monopoly in the hands of the Crown, foreign relations would suffer a debilitating disunity. Many people means many wills; many wills means inconsistency, feebleness, and paralysis. Hence “[w]hat is done
by the royal authority, with regard to foreign powers, is the act of the whole nation: what is done without the king’s concurrence is the act only of private men.” 163

Charles Montesquieu, another influential writer who explored executive power in the
years leading up to the Constitution, explained that the executive power over foreign
affairs encompasses war, establishing security, and protection against invasions.
The influential Charles Louis de Secondat, Baron de Montesquieu, confirmed that Locke’s federative power had become a branch of the executive power by the mid-eighteenth century. Unlike his predecessor, Montesquieu
unequivocally classified both functions as branches of the executive power. Indeed, the federative power did not make its way into his taxonomy: “In every government there are three sorts of power: the legislative, the
executive, in respect to things dependent on the law of nations; and the executive, in regard to things that depend on the civil law.” 149 Montesquieu immediately provided a more precise definition of the executive power over
foreign affairs: making war and peace, sending or receiving embassies, establishing public security, and protecting against invasions.150 Although Montesquieu subsequently paid far more attention to the domestic law-execution
component of the executive power, he returned to the external executive power when considering the Roman Republic.151 Montesquieu thus helped usher in the late eighteenth-century view that the executive power had
domestic and foreign affairs components.152 Gwyn goes so far as to claim that in Montesquieu’s time, the “executive branch of government [was considered] as being concerned nearly entirely with foreign affairs.” 153

That’s why we see, when looking to the historical context in which the Constitution
was originally written and interpreted, the executive power vested in the president
gives him this power over foreign affairs. The AUMF only embodies these Presidential
powers, vested in the President by Article II.
 Conclude
The AUMF is just a representation of the inherent powers of the President’s office.
That’s why Ken Gude of the Center for American Progress explains in 2017 that
blaming the AUMF for different conflicts is a misguided assumption, since the conflicts
are a representation of the President’s inherent authority. He concludes that Congress
has just used the AUMF as a scapegoat, ignoring the inherent power the President has
independently of the AUMF.
Ken Gude, 10-30-2017, "It’s About the Wars and Trump—Not the AUMF," Center for American Progress, https://www.americanprogress.org/issues/security/news/2017/10/30/441797/its-about-the-wars-and-trump-not-the-aumf/

The tragic loss of four U.S. Army Green Berets* in an ambush in Niger has sparked renewed attention on the scope of the multiple ongoing wars against terrorist groups. Debate has centered on the source of legal authority for
those wars, the 2001 Authorization for the Use of Military Force (AUMF). This Monday, the Senate Foreign Relations Committee will hold a hearing on this authorization. However, as strange as it is to say, Congressional focus on
this 16-year-old law is premature at this stage in the Trump administration. Instead, what is urgently needed is a strategic assessment of the wars themselves and clear-eyed consideration of President Donald Trump’s
recklessness and unsuitability to be entrusted with broad war powers. As Congress re-engages this debate, its focus must be on the actual wars—not just the legal authority. For too long, any discussion about the fight against
terrorist groups has been confined to a narrow discussion of the legal authorities that support those conflicts. Bizarrely, many have used skepticism about the AUMF as a substitute for a more politically risky path of questioning
the actual wars, leaving any Congressional action to focus on obtaining a new vote on a new or renewed authorization for those wars. However well-intentioned, that dynamic only further entrenches the fight against terrorist
groups a “forever war.” Before acting on any new war authority, Congress must examine the major strategic shifts occurring in the fight against terrorist groups in multiple theaters. The Trump administration has announced that it
is sending more troops to Afghanistan, returning to a war footing against the Taliban. Additionally, the administration is, reportedly, putting CIA paramilitary teams on the ground in kill-or-capture operations against Taliban
militants. The fall of Raqqa marks a turning point in the fight against the Islamic State, as the group has lost most of its territory in Iraq and Syria. Big questions now must be answered about the direction of U.S. military operations
against IS. Yemen remains a debilitating quagmire, as the Saudi-led and U.S.-backed war against Houthi rebels there continues to falter. Leaked emails show even the Saudis admit its military campaign has been a “strategic failure”
and that al Qaeda in the Arabian Peninsula has capitalized on the fighting as a means to gain territory and strength. Additionally, U.S. officials have not adequately addressed disturbing reports of torture and abuse of Yemeni
detainees by forces of the United Arab Emirates, sometimes with U.S. personnel present at the same military base. U.S. military engagements are either escalating or beginning across Africa and Asia as well. A U.S. airstrike
reportedly killed 150 al-Shabab militants in March of this year, part of a renewed U.S. push against the group. Violence in Somalia is also escalating following the mid-October truck bombing in Mogadishu that killed more than 300
people. And the Trump administration is reportedly considering changing Obama-era rules governing the use of deadly force outside of traditional war zones that “would ease the way to expanding such gray-zone acts of sporadic
warfare to elsewhere in Africa, Asia, and the Middle East.” Congress must assess critical questions about the conflicts, including whether U.S. military engagement is still necessary, and, if so, at what level. Congress must also
examine the Trump administration’s strategy for fighting and winning these conflicts. Layered onto any consideration of providing President Trump with renewed war powers is the growing bipartisan recognition that Trump is unfit
to be commander in chief. The Republican chairman of the committee holding Monday’s hearing, Sen. Bob Corker (R-TN), said this week that President Trump must be “contained” by his senior staff or else he could “move our
country into a binary choice which could lead to a world war.” Corker added that Trump has “a lack of desire to be competent.” Republican Sen. Jeff Flake (R-AZ), also on the Foreign Relations Committee, warned of the “senseless
danger” of Trump hurling “childish insults” at “a hostile foreign power.” It is simply unheard of to witness senior members of the sitting president’s party deliver such strong verdicts on his obvious unfitness for office. It is even
more remarkable in this era of intense partisan polarization to see this kind of criticism of the commander in chief by members of his own party. This goes beyond “not normal” and into truly uncharted territory. Given this growing
sense of alarm regarding the danger President Trump poses to the security of Americans and the world, it would be fundamentally irresponsible for Congress to provide him with broad war powers that gives him discretion about
when, where, and against whom the United States initiates military action. Congress must tackle these challenges head on. It must debate the actual wars, not just the legal authority that supports them. And it must deal with
the extremely dangerous elephant in the room; that Trump is reckless, incompetent, and so unfit to be commander in chief that he must be contained to limit the threat he poses to the security of the United States and the world.
That is the debate the American people deserve and need before any consideration by Congress of new or renewed authorization for the use of military force and what measures it can take to put meaningful limits on the war
powers of this president.

Since the AUMF represents the Presidential power the Constitution grants, Nathaniel
and I are proud to negate.
 Cards
Article II of the Constitution
John O. Mcginnis George C. Dix, 9-17-1787, "The 2nd Article of the U.S. Constitution," National Constitution Center – The 2nd Article of the U.S. Constitution, https://constitutioncenter.org/interactive-constitution/articles/article-ii

SECTION 1

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator
or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least
shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the
Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be
counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal
Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse
the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this Purpose shall consist of a Member or Members from two thirds of the States,
and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain
two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President. The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be
the same throughout the United States. No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person
be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States. In Case of the Removal of the President from Office, or of his Death, Resignation, or
Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and
Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected. The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my
Ability, preserve, protect and defend the Constitution of the United States."

SECTION 2

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of
the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offenses against the United States, except
in Cases of Impeachment. He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and
Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and
which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. The President shall
have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

SECTION 3

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene
both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public
Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

SECTION 4

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

AT: WPR
Brian Hughes, 2-28-2018, "Presidents historically have ignored War Powers Resolution," Washington Examiner, http://www.washingtonexaminer.com/interactive-presidents-historically-have-ignored-war-powers-
resolution/article/2535123

President Obama’s decision to consult Congress about striking Syria brought him in line with the War Powers Resolution, a 1970s statute that both he and his White House predecessors have defied, epitomizing a broader
constitutional clash about executive authority and the definition of combat. Since World War II, presidents including Obama have seized a greater amount of control over military engagements, initiating foreign conflicts without
even trying to obtain approval from Capitol Hill. Obama’s appeal to Congress will hardly quell a raging debate about the scope of executive reach. Codified in 1973, the War Powers Resolution says the president can initiate an
armed conflict only after a declaration of war, with a specific authorization, or during an attack on the U.S. or its territories. As stated in the Constitution, Congress alone has the authority to declare war. Presidents have paid a
heavy political price for entering military conflicts without a clear congressional stamp of approval, a reality certainly not lost on Obama as he calls for strikes that lack broad public support. President Harry Truman never received a
declaration of war to invade Korea — even though the measure had widespread congressional support — and his approval ratings tumbled because of the extended intervention. Truman’s method for circumventing Congress was
to call the military response a “police action” rather than an act of war. After the Gulf of Tonkin incident, Democratic President Lyndon Johnson launched the Vietnam War, initiating a clash that killed more than 58,000 Americans
— without explicit approval from lawmakers for such open-ended warfare. Troops were sent in under the auspices of “military advisers.” Looking to correct what they viewed as executive overreach in the Vietnam War, lawmakers
in 1973 believed the War Powers Resolution would slow the growing tendency by the White House to launch military conflicts without engaging Congress. The law did little, however, to lessen presidential pursuits of wartime
powers. “I think the text is pretty clear, but it’s also clear that presidents have chafed at its constraints,” George Mason University law professor Ilya Somin said of the War Powers Resolution. “They argue that it’s unconstitutional.
But they only have that authority with an operation so small that it doesn’t qualify as a war.” Recent presidents have argued the resolution undermines their responsibility as commander-in-chief to protect the homeland. Then-
candidate Obama ripped such presidential interpretations of the law. “History has shown us time and again, however, that military action is most successful when it is authorized and supported by the legislative branch,” Obama
said in 2007. "It is always preferable to have the informed consent of Congress prior to any military action.” He sang a different tune after becoming commander-in-chief. He launched an air strike in Libya two years ago, despite
never receiving congressional approval. The president said that because NATO took control of the operations and that U.S. troops were not on the ground, he was within his authority to pursue unilateral action. Similarly, President
Bill Clinton in 1999 initiated bombings in Kosovo, never consulting Congress. The White House argued it didn’t need to reach out to lawmakers since the operation was completed within the 90-day timeline outlined by the War
Powers Resolution. President Ronald Reagan in 1983 invaded Grenada in an effort to push aside the Cuban-supported government there. He never sought permission from Congress.

Power increasing
William Marshall, 2-2008, "ELEVEN REASONS WHY PRESIDENTIAL POWER INEVITABLY EXPANDS AND WHY IT MATTERS," Boston University Law Review, https://www.bu.edu/law/journals-archive/bulr/documents/marshall.pdf

It would be a mistake, however, to assume that the expansion of presidential power vis-à-vis the other branches is only a recent development. Justice Jackson recognized this trend over fifty years ago when he wrote in
Youngstown Sheet & Tube Co. v. Sawyer: [I]t is relevant to note the gap that exists between the President’s paper powers and his real powers. The Constitution does not disclose the measure of the actual controls wielded by
the modern presidential office. That instrument must be understood as an Eighteenth-Century sketch of a government hoped for, not as a blueprint of the Government that is. Vast accretions of federal power, eroded from
that reserved by the States, have magnified the scope of presidential activity. Subtle shifts take place in the centers of real power that do not show on the face of the Constitution. Executive power has the advantage of
concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he
fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public
opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.
Framework OV
 Vs Power, not Constitutional basis
You’re going to prefer our framework of the Constitution in context for x reasons.
1. Only foundation – Ramsey : Yale Law Journal : advocates for different kinds of
presidential power can only have weak theories – theory can only be as strong as its
foundation, without the foundation of the Constitution, we can’t resolve issues such
as Presidential communication or ambassadors. Without textual foundation,
Presidential powers are unfounded.
Even the most committed advocate of congressional primacy usually admits that the President is the “sole organ of official communication” in foreign affairs.45 Indeed, many scholars argue that the President is only a
spokesperson, with only the few limited substantive powers set forth in Article II, Sections 2 and 3. But how do they know the President speaks for the United States? If the Constitution says little about substantive presidential
power over foreign affairs, it also says little about the President’s supposed role as international spokesperson. If the President can claim only the powers of Article II, Sections 2 and 3, much of the President’s role as sole
communicative organ seems inexplicable.47 Yet if the communicative role is found (by implication or some other means), why not also find further powers? We are not aware of anyone who has addressed this serious difficulty.48
On the other hand, advocates of presidential primacy generally assume the President has the role of spokesperson, and use this common ground as a foundation for implying even greater presidential foreign affairs powers. But
their theory can be no stronger than its foundation, and they have not built their foundation on anything in the Constitution’s text .49 In sum, no one on either side of the debate can explain textually what everyone assumes:
that the President is the sole organ of communication in external affairs. To take another issue, most everyone supposes that the President has the power to recall U.S. ambassadors.50 This power has been exercised without
question, even with respect to controversial ambassadors in times of political partisanship.51 But what is the source of the President’s power? The only remotely relevant provision in Article II, Sections 2 and 3 is the President’s
power, with the consent of the Senate, to appoint ambassadors52—which surely cannot convey to the President alone the power to recall them. One might argue that ambassadors are analogous to executive officers, who are
appointed by the President with the consent of the Senate but can be removed by the President alone; on this theory, ambassadors also could be removed (recalled) by the President alone. But this assumes the President has
plenary authority over ambassadors comparable to the President’s authority over executive officers, and that is not at all obvious from the text. Because the President is constitutionally charged with enforcing the laws, the
President has an evident constitutional source of power over executive officers who assist in the enforcement of the laws. Of course, one similarly could argue that because the President is ultimately in charge of foreign affairs (or
at least in charge of communicating foreign policy) and ambassadors are involved in foreign affairs (or at least in voicing foreign policy), the President has power over them. But this argument assumes a point not yet demonstrated:
that the President controls foreign affairs, or at least is empowered to communicate foreign policy. As indicated, in modern foreign affairs scholarship the latter point is assumed while the former is vigorously disputed. As a result,
the President’s supposed power to recall ambassadors remains without textual foundation.

2. Evaluating Congressional vs Presidential powers – Prakash : Yale Law Journal :

dividing powers between President and Congress cannot be resolved without
constitution – creates endless debates with no satisfactory resolution.
Congress’s power over foreign affairs similarly suffers from assumptions unsubstantiated by text. The conventional view is that Congress has broad power to legislate with respect to foreign affairs and national security matters,
although (perhaps) limited by the President’s foreign affairs powers. But just as Article II, Sections 2 and 3 do not appear to give the President a general foreign affairs power, Article I, Section 8 does not grant Congress such a
power. To pick an example from early constitutional history, in 1799 Congress passed the Logan Act, prohibiting private parties from communicating with foreign governments on behalf of the United States.53 But where is
Congress’s enumerated power to do this? Lacking a general foreign affairs power, Congress would have had to rely on one of its specific powers, yet none seems sufficient. Modern foreign affairs scholarship simply cannot
resolve this and similar questions in a satisfactory manner. Professor Henkin, for example, feels compelled to invent an extra-constitutional “Foreign Affairs Power” of Congress to defend that body’s foreign affairs activities—a
power that he says is “inherent” in the “sovereignty and nationhood” of the United States and is unencumbered by any need to locate it within Congress’s enumerated powers.54 While some allocations of foreign affairs power are
comfortably assumed in modern scholarship, others are heatedly debated. But again, few scholars make arguments based on the Constitution’s text. Rather, most everyone assumes that the Constitution’s text does not directly
speak to these debated matters. The result is essentially a series of policy debates that shows no sign of satisfactory resolution. Consider the determination of the content of the United States’s international communications. As
noted, it is widely agreed that the President is the organ of communication in foreign affairs (although the constitutional basis of this power remains obscure). Who, however, determines the substance of the communications? This
inquiry is critical when the President is stating the policy position of the United States on a particular international matter, that is, whether the United States wishes to pursue a particular goal or support a particular position. This
power has long been one exercised by the President—reflected, for example, in President Monroe’s 1823 Doctrine (that the United States was opposed to any attempts by European powers to interfere with the independence of
the new South American republics) and President Washington’s 1793 declaration of neutrality in the Anglo-French war.55 But modern scholarship is closely divided on whether the power to formulate “foreign policy” in this
sense is appropriately presidential, and neither side has a convincing explanation of its view.56
VS Power, Constitutional basis
Vs CBA
Modern context
 First is the modern context.
Andrew McCarthy of the National Review explains in 2017 that the Constitution’s war
powers specifically are often misinterpreted. He continues that Congress’s war powers
are specifically aimed towards a context of peacetime. However, he continues that
our current period of conflict means that the Constitution gears responsibility more
towards the President. He continues that during this time, under the Constitution, the
President is authorized to take whatever military action is necessary against different
threats.
Andrew C. McCarthy, 7-8-2017, "War Powers and the Constitution in Our Body Politic," National Review, https://www.nationalreview.com/2017/07/war-powers-congress-commander-in-chief-constitution-iraq-libya-syria-aumf-
federalist-society/

That is to say, in Libya, we initiated an unnecessary war without any debate among the people’s representatives, much less any congressional authorization, and the result was a catastrophe: the undoing of a counterterrorism ally
in a dangerous neighborhood, the empowerment of our jihadist enemies, a failed state, and an administration reduced to absurd rationalizations about how its aerial bombing raids on regime targets were somehow not acts of
war. It is tempting on this record to draw the conclusion that modern practice has superseded the Constitution’s separation of war powers and division of war-making authorities between the commander-in-chief and the Congress.
But when we get down to brass tacks, this simply is not true. It is not true for a reason that is often forgotten in our debates about war powers, which are dominated by lawyers. They tend to take place under the auspices of legal
academic institutions or organizations like our host today, my good friends and colleagues of the Federalist Society. The Constitution is basically a political document, not a legal one. The reason is this: We are a body politic, not a
legal community — at least, not in the main. For any free society to flourish, it must of course be undergirded by the rule of law. But the Constitution is basically a political document, not a legal one. It is the assignment and
division of political authority among actors who compete and collude based on the attendant circumstances. This is critical because war is a political exercise — “politics by other means,” as Carl von Clausewitz memorably put it.
There are legal elements to it, but it is basically a political endeavor — the use of government power, in this instance force, against a foreign enemy in order to break the enemy’s will. Though you wouldn’t know it to listen to most
war-powers discussions, there is a limit to how much war can be “judicialized” or subjected to antecedent legal rules and procedures. A state of war, after all, is the antithesis of our domestic peacetime footing. It is the proud boast
of our legal system that we would rather see the guilty go free than have a single person wrongly convicted. Thus, we presume against the government. The accused is presumed to be innocent and has no burden to prove
anything. The government must meet weighty standards of proof to conduct a search, obtain a wiretap, make an arrest, or secure a conviction. Our bottom line, as former Bush-41 attorney general William Barr has observed, is
that we would rather see the government lose — i.e., justice is not the conviction of the guilty; it is a government forced to meet its burden under strict due-process rules. War is entirely different. In war, we don’t want the
government to lose, and we cannot give the enemy the presumption of innocence. In war, it is in the national interest that the government prevail. Yes, our troops are the world’s best trained and most disciplined, and we demand
of them adherence to the laws and customs of civilized warfare. But the highest national interest is to defeat the enemy and to achieve the objective so vital that it was worth going to war over. War is thus a very different
paradigm. Far more than legal niceties, it is driven by the public’s perception of threats to the homeland and to vital American interests. Our division of war powers is a reflection of this political reality. As we discovered painfully
in Vietnam, and to a lesser extent in Iraq, a war effort needs strong political support to be successful in a democracy. If there is not public consensus that our security is at risk, or that high-order American interests are at stake,
support for war at home and in Congress will flag. At that point, we can debate until the end of time whether the use of force was lawful and authorized. The only salient point will be that the public does not regard the war
effort as a necessary sacrifice of blood and treasure — that will be the practical and dispositive test of legitimacy. Our Constitution’s war powers are geared in just this way. The Constitution vests in Congress the power to declare
war. The executive, however, is chiefly tasked with our national defense against foreign threats, and it is for the commander-in-chief to prosecute war. This means that when the United States is under attack, or the real threat
of attack, no authorization from Congress is needed. The president may take whatever military action is necessary to quell the threat. Even under these circumstances, however, congressional authorization is desirable. It
becomes not only desirable but increasingly essential as the immediacy of the threat fades. For congressional endorsement of combat operations not only reflects public support for the war; it further defines the parameters of the
conflict — including, critically, who the enemy is. This is necessary because it delineates the operation of the laws of war, determining who may be regarded as an enemy combatant, subject to lethal force, capture, detention
without trial, and potentially even military commission if provable war crimes have been committed. A congressional authorization controls where and against whom military operations may be conducted. Here is the main point:
The further removed the use of force is from an identifiable threat to vital American interests, the more imperative it is that Congress weighs in, endorses or withholds authorization for combat operations, and use its other
constitutional authorities — particularly, the power of the purse — to ensure that military force is employed only for political ends that are worth fighting for, and that the public will perceive as worth fighting for. Now, it is fair
enough to say that our contemporary practice has not conformed to these constitutional guidelines. As a practical matter, we have permanent military forces and there is no stopping a president from ordering them into battle. As
we’ve noted, President Obama did not seek congressional authorization for the Libya campaign, just as President Clinton did not seek it for the bombings in the Balkans, and President Reagan did not seek it prior to the
invasion of Grenada. After insisting as candidate Trump that Obama needed Congress’s assent to attack regime targets in Syria, President Trump has attacked regime targets in Syria without Congress’s assent. Congress’s war
powers seem not to be much of a hindrance on the executive. Nor does Congress’s power of the purse seem to have much bite. It is simply a political reality — it is common sense — that the American people have a deep
attachment to their sons and daughters in harm’s way, regardless of their commitment, or lack of commitment, to a war and its objectives. Congress may disapprove of a unilateral presidential use of force; but unless the public is
not merely indifferent but deeply opposed to American participation in a conflict, lawmakers will be very leery of being seen as cutting off support for the troops. So here is the dynamic: The president has a relatively free hand,
and Congress abdicates its responsibilities — content to wave the pom-poms when things go well, and to excoriate the incumbent administration, but not cut off funding, when the going gets tough.

That’s why Bradley of the Harvard Law Review explains that in instances where there
were foreign threats and issues, the President was fully authorized to take military
action, regardless of any AUMF.
Curtis A. Bradley and Jack L. Goldsmith, 5-2005, " CONGRESSIONAL AUTHORIZATION AND THE WAR ON TERRORISM," Harvard Law Review,
https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=5902&context=faculty_scholarship

First, even in more traditional military conflicts, presidential actions have often lacked such a congressional authorization. Indeed, most uses of military force in U.S. history, including significant military engagements such as the
Korean War and the Kosovo bombing campaign, have been initiated without express congressional authorization. Here, by contrast, Congress specifically authorized the use of force against the nations, organizations, and
individuals responsible for the September 11 attacks. This important exercise of congressional authority warrants close examination because it may provide guidance on the validity of presidential action and, more broadly, help
define and limit the war on terrorism.

In the context of our current day, the President’s authority is highest, and the powers
the AUMF grants him are simply manifestations of his presidential duties.