Even the War Power’s Resolution of 1973, which was enacted to control presidential war-making, suggests that the President of the United States can unilaterally initiate military action to repel actual attacks on American territory. More controversially, presidential apologists, lawyers, and aggrandizers contrive to turn the so-called Vesting (of “executive power”) Clause in Article II into a grant of vast plenary power for the president to act unilaterally in foreign affairs, albeit such strong-executive theorists concede that some enumerated powers over war and foreign policy were given to Congress in Article I. Nevertheless, since the president is of course commander-in-chief (of the armed forces of the United States, but not of the country, the people, etc.), there is an apparent contemporary consensus that he (or she) is supposed to “repel.” If he failed to do so when an actual attack occurred, he could probably be impeached. Since, however, actual attacks are vanishingly infrequent, the president will often not have much to do in this area of his executive powers, that is, if the notion of “repel” is strictly construed.
Presumably, if unruly Seminoles raid Georgia and Georgians ask for help, a president could order troops to chase the Seminoles out. President Monroe’s letting Andrew Jackson conquer Florida (1819) and execute two British subjects after a funny “trial” would seem to go beyond repelling; albeit, Monroe skillfully maintained deniability here. (Although U.S. military prosecutors cited the “case” in March 2011 as precedent for prosecuting persons who “aid” al-Qaeda, with the Seminoles billed as al-Qaeda. At this rate, they will soon be citing as precedent for something the near-fatal beating of Light-horse Harry Lee in Baltimore in June 1812 by a war-crazed mob.) Although John Yoo would disagree, it might have been useful if the Framers had drawn some lines. Instead, with the exception of rare confluent moments of presidential weakness and public reaction to presidential adventurism (e.g., Nixon’s resignation and the unpopular Vietnam War), we have preferred (increasingly so in the twentieth century and beyond) to adhere to the neo-Hamiltonian school that wants Presidents to draw their own lines—and rather large ones at that. Now, the lines cover the world.
And so, the American presidency has become very repellent indeed, as Professors Eric Posner and Adrian Vermeule inadvertently demonstrate in a recent book, The Executive Unbound (2010), meant to prove how lucky Americans are to live under an elective monarchy, because Chicago-style social science and Carl Schmitt say so.