미국 헌법상 전쟁권에서 행정부와 의회의 권력분립과 충돌, 그리고 대법원의 판결 — 테러와 전쟁 사례 —

This paper attempts to analyse how the separation of war powers between President and Congress was interpreted and applied when the US prosecuted the war against terror since 911. The executive department of the US government interpreted the US Constitution, particularly, the Commander in Chief clause, gave the power to wage war. Therefore, when and if Congress passes a law restricting President's power to wage war, it would be an infringement of President's power under the Constitution. The US Supreme Court, however, held in Hamdan v. Rumsfeld that because the Constitution gave war power to both President and Congress, the legislation by Congress, as long as it is within the area allowed by the Constitution, legimatedly limits President. Based on the analyses of the US Supreme Court's decision from early 19th century, this paper concludes that when Congress tries to regulate President's power to wage war in matters of pure military operations closer to combat field, the Court is likely to find the legislation unconstitutional while President's uses the war power to regulate domestic affair in order to help himself to wage war in foreign territories, the Court is likely find the President infringing either the power of Congress or civil rights of individual.