Contemporary Authors

• City Bound: How States Stifle Urban Innovation Cornell University Press (Ithaca, NY), 2008
• Local Government Law: Cases and Materials 6th edition, West Academic Publishing (St. Paul, MN), 2015
• Waging War: The Clash Between Presidents and Congress, 1776 to ISIS Simon & Schuster (New York, NY), 2016

1. Waging war : the clash between presidents and Congress, 1776 to ISIS LCCN 2016025789 Type of material Book Personal name Barron, David J., author. Main title Waging war : the clash between presidents and Congress, 1776 to ISIS / David J. Barron. Edition First Simon & Schuster hardcover edition. Published/Produced New York : Simon & Schuster, 2016. Description xiv, 560 pages : illustrations, portraits ; 25 cm ISBN 9781451681970 (hardback) 9781451681987 (paperback) CALL NUMBER KF5060 .B37 2016 Copy 1 Request in Law Library Reading Room (Madison, LM242) 2. City bound : how states stifle urban innovation LCCN 2008024375 Type of material Book Personal name Frug, Gerald E., 1939- Main title City bound : how states stifle urban innovation / Gerald E. Frug and David J. Barron. Published/Created Ithaca : Cornell University Press, 2008. Description xvii, 260 p. ; 25 cm. ISBN 0801445140 (cloth : alk. paper) 9780801445149 (cloth : alk. paper) Links Table of contents only http://www.loc.gov/catdir/toc/fy0904/2008024375.html CALL NUMBER JS348 .F78 2008 CABIN BRANCH Copy 1 Request in Jefferson or Adams Building Reading Rooms - STORED OFFSITE 5. Local government law : cases and materials LCCN 2015372471 Type of material Book Personal name Frug, Gerald E., 1939- author. Main title Local government law : cases and materials / by Gerald E. Frug, Louis D. Brandeis Professor of Law, Harvard University; Richard T. Ford, George E. Osborne Professor of Law, Stanford University; David J. Barron, Judge, U.S. Court of Appeals for the First Circuit, Visiting Professor, Harvard Law School. Edition Sixth edition. Published/Produced St. Paul, MN : West Academic Publishing, [2015] Description xlix, 972 pages ; 26 cm. Teacher's manual: 158 pages ; 26 cm ISBN 9781628100280 (hbk.) 1628100281 (hbk.) 9781628104417 (pbk. : teacher's manual) CALL NUMBER KF5305 .F78 2015 Copy 1 Request in Law Library Reading Room (Madison, LM242) CALL NUMBER KF5305 .F78 2015 Copy 2 Request in Law Library Reading Room (Madison, LM242)

• Wikipedia -

  David Jeremiah Barron
  From Wikipedia, the free encyclopedia
  David Jeremiah Barron
  Judge of the United States Court of Appeals for the First Circuit
  Incumbent
  Assumed office
  May 23, 2014
  Appointed by Barack Obama
  Preceded by Michael Boudin
  Personal details
  Born David Jeremiah Barron
  July 7, 1967 (age 49)
  Washington, D.C.
  Spouse(s) Juliette Kayyem
  Education Harvard University B.A.
  Harvard Law School J.D.
  External image David J. Barron, an image from the newyorker.com web site.

  David Jeremiah Barron (born July 7, 1967) is a United States Circuit Judge of the United States Court of Appeals for the First Circuit and former S. William Green Professor of Public Law at Harvard Law School. He previously served as the Acting Assistant Attorney General of the Office of Legal Counsel at the United States Department of Justice.

  Barron is a controversial figure because he wrote a legal memo justifying the use of lethal drone strikes against U.S. citizens without judicial process.[1]

  Contents

  1 Biography
  1.1 Early life, education and service
  1.2 Academic career and later service
  2 Federal judicial service
  3 Publications
  4 See also
  5 References
  6 External links

  Biography
  Early life, education and service

  Barron was born on July 7, 1967, in Washington, D.C. and is the son of George Washington University Law School professor and former dean Jerome A. Barron.[2][3][not specific enough to verify] He received a Bachelor of Arts degree, magna cum laude, in 1989, from Harvard College, serving as president of the Harvard Crimson. After graduation, he worked as a reporter for the The News & Observer in Raleigh, North Carolina, from 1989 to 1991. Returning to school, he received a Juris Doctor, magna cum laude, in 1994, from Harvard Law School, serving on the Harvard Law Review. He worked as a law clerk for Judge Stephen R. Reinhardt of the United States Court of Appeals for the Ninth Circuit, from 1994 to 1995, and for Justice John Paul Stevens of the United States Supreme Court from 1995 to 1996. He worked as an attorney-advisor in the Justice Department's Office of Legal Counsel, from 1996 to 1999.[4]
  Academic career and later service

  Barron joined the Harvard Law School faculty as an assistant professor in 1999 and became a professor in 2004. He left the faculty upon his confirmation to the Court of Appeals in 2014.[5][6]

  In 2009, while on leave from his faculty position, Barron rejoined the Office of Legal Counsel as Acting Assistant Attorney General. In 2010, he authored a secret memo which provided the legal foundation for President Obama's unprecedented decision to order a drone strike on Anwar al-Awlaki, an American citizen who was a radical Islamic militant living in Yemen.[7] Barron's memo was described by The New York Times Editorial Board as "a slapdash pastiche of legal theories — some based on obscure interpretations of British and Israeli law — that was clearly tailored to the desired result."[8] A lawyer for the ACLU described the memo as "disturbing" and "ultimately an argument that the president can order targeted killings of Americans without ever having to account to anyone outside the executive branch."[9]

  For Barron's service, he received the National Intelligence Exceptional Achievement Medal from the Office of the Director of National Intelligence, as well as the Secretary of Defense Medal for Outstanding Public Service.[6]

  Barron returned to the Harvard Law School faculty in 2010 and was named the S. William Green Professor of Public Law in 2011. In 2012, he was appointed by Massachusetts Governor Deval Patrick to the Massachusetts Board of Higher Education.[10] and the Massachusetts State College Building Authority.[4] He left academia in 2014 after his confirmation as a federal judge.[5]
  Federal judicial service

  On September 24, 2013, President Obama nominated Barron to serve as a United States Circuit Judge of the United States Court of Appeals for the First Circuit, to the seat vacated by Judge Michael Boudin, who took senior status on June 1, 2013.[11] On January 16, 2014, his nomination was reported out of committee.[12] On Thursday, May 15, 2014 Senate Majority Leader Harry Reid filed a motion to invoke cloture on the nomination. On Wednesday, May 21, 2014, the Senate agreed to the motion to invoke cloture by a vote of 52-43.[13] Several senators, including Mark Udall (D) and Rand Paul (R), pledged to oppose Barron's nomination unless the administration publishes the secret memos Barron authored on the legality of killing American citizens with drone strikes.[14] Until senators began raising concerns about Barron's nomination, only those on the Judiciary and Intelligence committees had seen any of the classified memos.[15] On May 22, 2014, the Senate voted 53–45 for final confirmation to the United States Court of Appeals for the First Circuit.[16] He received his judicial commission on May 23, 2014.[5]
  Publications

  Barron is known for coauthoring with Martin S. Lederman a Harvard Law Review article titled "The Commander in Chief at the Lowest Ebb - Framing the Problem, Doctrine and Original Understanding," Harvard Law Review, Vol. 121, Pg. 689, January 2008, which was an attack of the advice given by the Office of Legal Counsel to President George W. Bush justifying Bush's use of executive power during the War on Terror.[17]

  In 2016, Simon & Schuster published his book Waging War: The Clash Between Presidents and Congress, 1776 to ISIS.[18][19] Barron was named as the 2017 recipient of the Colby Award for Waging War: The Clash Between Presidents and Congress, 1776 to ISIS.[20]

• Ballotpedia - https://ballotpedia.org/David_Barron

  David Barron

  David Barron
  DavidBarron.jpg
  Judge
  United States Court of Appeals for the First Circuit
  Tenure
  May 22, 2014 - present
  Predecessor Michael Boudin
  Elections and appointments
  Appointed by Barack Obama
  Approval vote 53-45
  Education
  Bachelor's Harvard College, A.B., 1989
  J.D. Harvard Law School, J.D., 1994
  Personal
  Born 1967
  Hometown Washington, D.C.
  Have you heard of The Tap?
  Click here to read the latest edition of Ballotpedia's weekly newsletter.

  David Jeremiah Barron is a federal judge on the United States Court of Appeals for the First Circuit. Prior to joining the court, he was Harvard Law School's S. William Green Professor of Public Law. On September 24, 2013, President Barack Obama nominated Barron to the United States Court of Appeals for the First Circuit.[1] The United States Senate confirmed Barron on May 22, 2014, on a vote of 53-45.[2][3]
  Early life and education

  A native of Washington, D.C., Barron earned his bachelor's (1989) and J.D. (1994), both magna cum laude, from Harvard University.[1]
  Professional career

  2014-present: Judge, United States Court of Appeals for the First Circuit
  1999-2014: Harvard Law School

  2004-2014: Professor
  1999-2004: Assistant professor

  2009-2010: Acting assistant attorney general, Office of Legal Counsel, U.S. Department of Justice
  1996-1999: Attorney-Adviser, Office of Legal Counsel
  1995-1996: Law Clerk, Hon. John Paul Stevens, Supreme Court of the United States
  1994-1995: Law Clerk, Hon. Stephen Reinhardt, United States Court of Appeals for the Ninth Circuit
  1989-1991: Reporter, Raleigh News and Observer, Raleigh, North Carolina[3][1]

  Judicial career
  First Circuit Court of Appeals
  Nomination Tracker
  Candidate: David Barron
  Court: United States Court of Appeals for the First Circuit
  Progress: Confirmed 240 days after nomination.
  Approved Nominated: September 24, 2013
  Approved ABA Rating: Substantial Majority Well Qualified, Minority Qualified
  Approved Questionnaire: Questionnaire
  Approved Hearing: November 30, 2013
  Approved QFRs: QFRs
  Approved Reported: January 16, 2014
  Approved Confirmed: May 22, 2014
  Vote: 53-45

  On September 24, 2013, Barron was nominated to the United States Court of Appeals for the First Circuit by President Barack Obama. The seat was vacated by Michael Boudin on June 1, 2013. The President had this to say about the nomination,
  “ David Jeremiah Barron has displayed exceptional dedication to the legal profession through his work, and I am honored to nominate him to serve the American people as a judge on the United States Court of Appeals... He will be a diligent, judicious and esteemed addition to the First Circuit bench.[1][4] ”

  The American Bar Association rated Barron Substantial Majority Well Qualified, Minority Qualified for the nomination.[5]

  Barron's nomination was returned by the Senate on January 3, 2014, and he was renominated on January 6th by President Obama.[6]

  Barron's nomination advanced to the full Senate on January 16, 2014, when the Senate Judiciary Committee voted 10 - 8 to report the nomination.[7] The Senate confirmed Barron to the United States Court of Appeals for the First Circuit on May 22, 2014, by a vote of 53-45.[2]

  Reactions to the nomination

  Martha Minow, dean of the Harvard Law School, said regarding Barron's nomination,
  “ David Barron is a superb lawyer with deep experiences in federal, state, and local government. He will be an outstanding judge as he has great judgment as well as wide expertise. He is such a valued member of our community, but for the greater good, I hope the Senate promptly confirms his nomination.[8][4] ”

  Opposition to nomination

  The American Civil Liberties Union (ACLU) expressed issues with Barron's nomination in a letter sent to each member of the United States Senate. The issue with Barron's nomination comes from his time at the Office of Legal Counsel Department of Justice where he wrote two legal opinions that authorized the killing of an American overseas with an armed drone.[9] The full letter to the Senators can be found here.

  In the days leading up to the confirmation of David Barron, Senators Ted Cruz and Rand Paul spoke out against his nomination:

  Awards

  2012: Scholar-in-Residence, Columbia Law School
  2010: The Office of the Secretary of Defense Medal for Exceptional Public Service
  2009: National Intelligence Exceptional Achievement Medal, from the Acting Director of National Intelligence
  1991: Walter Spearman Award, North Carolina Press Association[10]

• United States Court of Appeals Web site - http://www.ca1.uscourts.gov/david-j-barron

  David J. Barron

  Judge Barron was appointed to the First Circuit Court of Appeals in May 2014. He graduated from Harvard College in 1989 and Harvard Law School in 1994. From 1989 to 1991, he worked as a newspaper reporter. After graduating from law school, he clerked for Judge Stephen R. Reinhardt of the United States Court of Appeals for the Ninth Circuit, from 1994 to 1995, and for Justice John Paul Stevens of the United States Supreme Court, from 1995 to 1996. He then worked as an attorney advisor for the Office of Legal Counsel of the United States Department of Justice, from 1996 to 1999. In 1999, Judge Barron became an Assistant Professor at Harvard Law School. He became a full Professor at Harvard Law School in 2004, where he worked until he rejoined the Justice Department as Acting Assistant Attorney General from 2009 to 2010. He then returned to the Harvard Law School faculty in 2010, where he was named the S. William Green Professor of Public Law in 2011, and worked until his appointment to the federal bench in 2014. Chambers phone number: (617) 748-9008.

• Harvard Law School Web site - http://hls.harvard.edu/faculty/directory/10046/Barron/

  David J. Barron
  The Honorable S. William Green Visiting Professor of Public Law

  2016-2017

  About
  Publications
  Courses
  Background

  Biography

  David Barron is a Circuit Judge on the United States Court of Appeals for the First Circuit, and is The Honorable S. William Green Visiting Professor of Public Law at Harvard Law School. He graduated from Harvard College in 1989 and Harvard Law School in 1994. From 1989 to 1991, he worked as a newspaper reporter. After graduating from law school, he clerked for Judge Stephen R. Reinhardt of the United States Court of Appeals for the Ninth Circuit from 1994 to 1995, and for Justice John Paul Stevens of the United States Supreme Court from 1995 to 1996. He then worked as an attorney advisor for the Office of Legal Counsel of the United States Department of Justice from 1996 to 1999. In 1999, Judge Barron became an Assistant Professor at Harvard Law School. He was promoted to Professor in 2004. He rejoined the Justice Department as Acting Assistant Attorney General from 2009 to 2010. He then returned to the Harvard Law School faculty in 2010 and was named The Honorable S. William Green Professor of Public Law, and served until his appointment to the federal bench in 2014.

  Areas of Interest

  Administrative Law
  Local Government Law: Urban Sprawl
  Constitutional Law
  Local Government Law
  Property

• From Publisher -

  David Barron is a United States Circuit Judge for the United States Court of Appeals for the First Circuit and former S. William Green Professor of Public Law at Harvard Law School. He previously served as the Acting Assistant Attorney General of the Office of Legal Counsel at the United States Department of Justice. He is coauthor, with Martin Lederman, of the article “The Commander in Chief at the Lowest Ebb” and the author of Waging War.

• VTDigger - https://vtdigger.org/2017/02/15/david-j-barron-wins-norwich-university-award-best-military-book/

  David J. Barron Wins Norwich University Award for Best Military Book
  Feb. 15, 2017, 11:29 am by Press Release 0 Comments

  News Release — Norwich University
  Feb. 14, 2017

  Contact:
  Scott Manning
  646-517-2825
  603-491-0995 (C)
  scott@scottmanningpr.com

  Daphne Larkin
  802-485-2886
  dlarkin@norwich.edu
  Follow us on Twitter @NorwichNews

  Norwich University has awarded its annual book prize to David J. Barron for his history of the clash between presidents and Congress over the power to wage war.

  NORTHFIELD, Vt. – David J. Barron has won the 2017 William E. Colby Award for his book, “Waging War: The Clash Between Presidents and Congress, 1776 to ISIS.” Now in its 18th year, the Colby prize is awarded annually by Norwich University in Northfield, Vt., to a first solo work of fiction or non-fiction that has made a major contribution to the understanding of military history, intelligence operations or international affairs.

  Barron is a United States Circuit Judge for the United States Court of Appeals for the First Circuit and former S. William Green Professor of Public Law at Harvard Law School. He previously served as the Acting Assistant Attorney General of the Office of Legal Counsel at the United States Department of Justice. He is co-author, with Martin Lederman, of the article “The Commander in Chief at the Lowest Ebb.” “Waging War,” is his first solo book.

  Barron’s professional and legal expertise and perspective make his book on executive power vs. Congress and the nation’s constitutional system compelling and timely.

  The Washington Post described “Waging War” as such: “Ambitious…a deep history and a thoughtful inquiry into how the constitutional system of checks and balances has functioned when it comes to waging war and making peace.”

  “I am so pleased to receive the Colby award,” Barron said. “William Colby’s own life exemplifies what I hope ‘Waging War’ shows — that the executive branch honors our constitutional tradition not only by challenging Congress but also by respecting it.”

  “Waging War” details the history of the ongoing struggle between U.S. presidents and Congress over who has the power to declare and wage war, beginning with George Washington and the Continental Congress and continuing through current-day conflicts described as the Global War on Terror.

  “David Barron is a distinguished jurist, “says Carlo D’Este, Colby Symposium executive director. “His superbly researched and wonderfully told history of the clash between presidents and Congress throughout the history of our nation is an outstanding literary achievement and a worthy winner of the 2017 Colby Award.”

  Winners of the Colby Award receive a $5,000 author honorarium provided through the generosity of the Chicago-based TAWANI Foundation. The award and honorarium will be presented to Barron at Norwich University during the 2017 William E. Colby Military Writers’ Symposium at the “Meet the Authors” Dinner on April 13, 2017. The 2017 Symposium will take place April 12-13, and includes a panel discussion and book signing. The symposium is open to the public, but some events require tickets. Visit Colby.norwich.edu for information.

  Finalists for the 2017 Colby Award included “The Brave Ones: A Memoir of Hope, Pride, and Military Service” by Michael MacLeod; “The Great War of Our Time” by Michael Morell; and “This Brave New World” by Anja Manuel.

  Named for the late ambassador and former CIA director William E. Colby, the Colby Award recognizes a first solo work of fiction or non-fiction that has made a significant contribution to the public’s understanding of intelligence operations, military history or international affairs. The William E. Colby Award began at Norwich University in 1999.

  Previous recipients of the Colby Award include Nisid Hajari, Thomas McKenna, James Bradley, Nathaniel Fick, Jack Jacobs, Dexter Filkins, Marcus Luttrell, John Glusman, Karl Marlantes, and Logan Beirne.

  Colby Award Selection Committee:

  · William E. Butterworth, III is the author of more than 150 books, most notably the W. E. B. Griffin novels, and more than 50 New York Times bestsellers. He is the co-founder of the William E. Colby Military Writers’ Symposium.

  · Karl Marlantes is the author of “Matterhorn: A Novel of the Vietnam War,” a New York Times Top 10 Bestseller, and “What It Is Like To Go To War.” He is a 2011 Colby Award recipient.

  · Jerry Morelock is a prize-winning military historian whose numerous publications include his latest book, “Generals of the Bulge: Leadership in the U.S. Army’s Greatest Battle.”

  · John A. Glusman is vice president and editor-in-chief of W. W. Norton and Company, the largest independent, employee-owned publisher in the U.S. He is the 2007 Colby Award recipient for “Conduct Under Fire: Four American Doctors and Their Fight for Life as Prisoners of the Japanese, 1941-1945.”

  · Frederick J. Chiaventone, a retired cavalry officer, is a novelist, screenwriter, and military historian. His novel “A Road We Do Not Know: A Novel of Custer at the Little Bighorn” won the 1999 inaugural Colby Award. His work has also won the Western Heritage and William Rockhill Nelson Awards and has been nominated for a Pulitzer.

  · Carlo D’Este is a renowned military historian and biographer, and the 2011 recipient of the Pritzker Military Museum & Library Literature Award for Lifetime Achievement in Military Writing. He is the co-founder and the executive director of the William E. Colby Military Writers’ Symposium.

• White House Web site - https://obamawhitehouse.archives.gov/the-press-office/2013/09/24/president-obama-nominates-david-jeremiah-barron-serve-united-states-cour

  September 24, 2013
  President Obama Nominates David Jeremiah Barron to Serve on the United States Court of Appeals

  WASHINGTON, DC – Today, President Barack Obama nominated David Jeremiah Barron to the United States Court of Appeals for the First Circuit.

  “David Jeremiah Barron has displayed exceptional dedication to the legal profession through his work, and I am honored to nominate him to serve the American people as a judge on the United States Court of Appeals,” President Obama said. "He will be a diligent, judicious and esteemed addition to the First Circuit bench."

  David Jeremiah Barron: Nominee for the United States Court of Appeals for the First Circuit

  David Jeremiah Barron is the S. William Green Professor of Public Law at Harvard Law School and previously served as the Acting Assistant Attorney General of the Office of Legal Counsel at the Department of Justice.

  Barron received his B.A. magna cum laude from Harvard College in 1989, where he served as president of the Harvard Crimson. He then worked as a reporter for the News and Observer in Raleigh, North Carolina, from 1989 to 1991. In 1994, Barron received his J.D. magna cum laude from Harvard Law School, where he served on the Harvard Law Review. Barron clerked for Judge Stephen R. Reinhardt of the United States Court of Appeals for the Ninth Circuit from 1994 to 1995 and for Justice John Paul Stevens of the Supreme Court of the United States from 1995 to 1996. After clerking, Barron worked as an attorney-adviser in the United States Department of Justice’s Office of Legal Counsel from 1996 to 1999.

  Barron joined the Harvard Law School faculty as an assistant professor in 1999 and became a professor there in 2004. In 2009, while on leave from his faculty position, Barron rejoined the Office of Legal Counsel as Acting Assistant Attorney General. For his service, he received the National Intelligence Exceptional Achievement Medal from the Office of the Director of National Intelligence and the Office of the Secretary of Defense Medal for Exceptional Public Service. Barron returned to the Harvard Law School faculty in 2010 and was named the S. William Green Professor of Public Law in 2011. He was recently appointed by Massachusetts Governor Deval Patrick to the Massachusetts Board of Higher Education and the Massachusetts State College Building Authority.

QUOTED: "Waging War is thus an accessible albeit incomplete reference."

Waging War: The Clash Between Presidents and Congress, 1776 to ISIS
William John Shepherd
33.6 (Mar. 2017): p72.
Copyright: COPYRIGHT 2017 World History Group, LLC
http://www.historynet.com/magazines/military_history

Waging War: The Clash Between Presidents and Congress, 1776 to ISIS, by David J. Barron, Simon & Schuster, New York, 2016, $30

U.S. Circuit Court Judge Barron isa recent former Department of Justice official who wrote a controversial legal memo justifying drone strikes against American citizens, specifically radical Islamic terrorist Anwar al-Awlaki in Yemen, without judicial process. Ironically, drone strikes are a presidential military action not specifically mentioned in this book, a reworked, less-partisan treatment of two lengthy academic articles Barron co-authored that were critical of the George W. Bush administration's use of force.

Barron's primary argument is that U.S. presidents have operated under congressional restrictions, finding ways to cope or work around them. Neither branch of government has overwhelmed the other but continue an unresolved power struggle subject to an enduring system of checks and balances. He chronicles the evolving relationship of the commander in chief-from George Washington to Barack Obama--with the legislative branch (Congress), in charge of oversight and funding, and the judicial branch (Supreme Court), as a counter to questionable executive actions.

The first example he provides is debate over whether to destroy New York City in 1776 rather than let it fall to the British, something Washington unsuccessfully urged Congress to approve and for which he was unwilling to take sole responsibility. Other incidents illustrate fears of a potential "man on horseback" resisting presidential command authority, congressional overreach and presidential excess, epitomized, respectively, by General Andrew Jackson's illegal imposition of martial law in New Orleans in 1815, Andrew Johnson's 1868 impeachment in the context of Reconstruction, and Bush's plans for preemptive strikes on potential enemies after the 9/11 attacks.

Unfortunately, Barron fails to mention many other illustrative examples, including Thomas Jefferson's war against Barbary pirates, James Monroe's seizure of Florida, Woodrow Wilson's incursions into Mexico, Harry S. Truman's removal of Douglas MacArthur from Korea, John Kennedy and the Bay of Pigs, and the aforementioned drone strikes, a hallmark of Obama's military action. Waging War is thus an accessible albeit incomplete reference.

Shepherd, William John
Source Citation (MLA 8th Edition)
Shepherd, William John. "Waging War: The Clash Between Presidents and Congress, 1776 to ISIS." Military History, Mar. 2017, p. 72+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA476930403&it=r&asid=229c9ef18599a11c19b8d92c9f3330ee. Accessed 3 May 2017.

QUOTED: "an insightful treatise"
"This is a valuable work that bolsters Constitutional understanding."

Gale Document Number: GALE|A476930403
Barron, David J.: Waging War: The Clash Between Presidents and Congress, 1776 to ISIS
Jacob Sherman
141.20 (Dec. 1, 2016): p107.
Copyright: COPYRIGHT 2016 Library Journals, LLC. A wholly owned subsidiary of Media Source, Inc. No redistribution permitted.
http://www.libraryjournal.com/

* Barron, David J. Waging War: The Clash Between Presidents and Congress, 1776 to ISIS. S. & S. Oct. 2016.576p. notes, index. ISBN 9781451681970. $30; ebk. ISBN 9781451681994. POL SCI

[ILLUSTRATION OMITTED]

U.S. Circuit Court Judge Barron has written an insightful treatise on how Congress and the presidency have negotiated war powers throughout U.S. history. Barron details of how there is a fear of an uncontested executive, which harkens back to the nation's founding. Congress was granted a Constitutional check on the president's powers to enter the country into war. Barron writes that this check has ebbed and flowed over time. The more interesting parts of this book include when the executive was stripped of powers during the Andrew Johnson and Gerald Ford presidencies. This work does not drown in legalese, though one needs to take time to comprehend fully what the author has put forth. There are small gaps in the history that could have been included if this volume were to be expanded into a series. However, overall, this is a valuable work that bolsters Constitutional understanding such as Jack N. Rakove's Original Meanings or Max M. Edling's A Revolution in Favor of Government. VERDICT Highly recommended for Constitutional scholars and those who appreciate a back-and-forth debate.--Jacob Sherman, John Peace Lib., Univ. of Texas at San Antonio
Source Citation (MLA 8th Edition)
Sherman, Jacob. "Barron, David J.: Waging War: The Clash Between Presidents and Congress, 1776 to ISIS." Library Journal, 1 Dec. 2016, p. 107+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA472371258&it=r&asid=c28cd1817d73e7c72157f2e391741833. Accessed 3 May 2017.

QUOTED: "Given the current election cycle, this interesting, well-written work is a worthy, timely read."

Gale Document Number: GALE|A472371258
Waging War: The Clash between Presidents and Congress 1776 to ISIS
Jay Freeman
113.1 (Sept. 1, 2016): p12.
Copyright: COPYRIGHT 2016 American Library Association
http://www.ala.org/ala/aboutala/offices/publishing/booklist_publications/booklist/booklist.cfm

Waging War: The Clash between Presidents and Congress 1776 to ISIS. By David J. Barron. Oct. 2016. 576p. Simon 8i Schuster, $30 (97814516819701.321.

The Constitution gives Congress the sole power to declare war. Yet our military, under the president's direction, has repeatedly engaged in foreign conflicts without a formal declaration of war, and, as commander-in-chief, the president is generally assumed to have great leeway in planning and executing the conduct of any war. As U.S. Circuit Judge Barron reveals, since the birth of our nation there has been a constant tug-of-war between Congress and the president. Barron examines a series of these struggles, beginning with George Washington and the War of Independence, during which Washington respected the order of Congress not to burn much of New York City as he retreated from the overwhelming British force. Other notable disputes include President Buchanan's with both Congress and his military commander as civil war loomed, Lincoln's authority to confiscate "slave property," and Woodrow Wilson's WWI policies. While these were intense conflicts, the nation was fortunate that both Congress and the presidents exercised sound judgment. Given the current election cycle, this interesting, well-written work is a worthy, timely read.--Jay Freeman

Freeman, Jay
Source Citation (MLA 8th Edition)
Freeman, Jay. "Waging War: The Clash between Presidents and Congress 1776 to ISIS." Booklist, 1 Sept. 2016, p. 12+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA463754969&it=r&asid=31a3a5aa7281f49151641e322b9f6567. Accessed 3 May 2017.

QUOTED: "It's a fine example of the use of history to illuminate current circumstances and to counter unsupportable claims."

Gale Document Number: GALE|A463754969
Waging War: The Clash Between Presidents and Congress, 1776 to ISIS
263.35 (Aug. 29, 2016): p83.
Copyright: COPYRIGHT 2016 PWxyz, LLC
http://www.publishersweekly.com/

Waging War: The Clash Between Presidents and Congress, 1776 to ISIS

David J. Barron. Simon & Schuster, $30 (576p) ISBN 978-1-4516-8197-0

Barron, a federal appeals court judge, surveys the fraught struggles between presidents and congresses over their war powers since before the creation of American constitutional government in 1787 and up through the Obama administration. . Barron takes strong issue with the claim that presidents trying to circumvent Congress and the legislature trying to limit presidential war-making are recent innovations, showing that neither branch of government has ever allowed the other to declare or wage war without interference. He argues vigorously from the authority of experience as acting assistant attorney general in the Obama Administration's Office of Legal Council (in which capacity Barron drafted a controversial legal memo authorizing the use of lethal drone strikes against American citizens without due process) that recent presidents have always stopped short of asserting the "sweeping power to run the wars in which they have led the country however they have seen fit." The book should be read widely by those responsible for the development and implementation of national policies. It's a fine example of the use of history to illuminate current circumstances and to counter unsupportable claims and arguments about Congress and the president. Agent: Andrew Wylie, Wylie Agency. (Oct.)
Source Citation (MLA 8th Edition)
"Waging War: The Clash Between Presidents and Congress, 1776 to ISIS." Publishers Weekly, 29 Aug. 2016, p. 83. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA462236495&it=r&asid=5e6b18a8ec1ec85718204a3121451c6f. Accessed 3 May 2017.

QUOTED: "In the book, Frug and Barron take a comprehensive, empirical look at the legal frameworks under which cities and other local governments operate, providing an invaluable roadmap for understanding the hidden architecture of legal constraints that--largely without notice--are shaping America's urban future."
"City Bound is an invaluable addition to our understanding of the nature of local governance, painting a nuanced picture of the nature of city power."
"City Bound is elegant, passionate, and clear. Frug and Barron's analysis of the actual structure of the legal authority granted and denied to local governments and the consequences of the incentives that the uneven landscape of home rule creates should be required reading for anyone interested in the future of urban America."

Gale Document Number: GALE|A462236495
City Bound: How States Stifle Urban Innovation
Nestor M. Davidson
108.6 (Apr. 2010): p957.
Copyright: COPYRIGHT 2010 Michigan Law Review Association
http://www.michiganlawreview.org/

CITY BOUND: How STATES STIFLE URBAN INNOVATION. By Gerald E. Frug and David J. Barron. Ithaca and London: Cornell University Press. 2008. Pp. xvii, 260. $35.

INTRODUCTION

Imagine how stunted our understanding of the federal government would be without any detailed scholarly examination of the U.S. Constitution itself. As remarkable as that sounds, that is essentially the problem that Gerald Frug (1) and David Barron (2) have set out to remedy for local governments in their superb City Bound. In the book, Frug and Barron take a comprehensive, empirical look at the legal frameworks under which cities and other local governments operate, providing an invaluable roadmap for understanding the hidden architecture of legal constraints that--largely without notice--are shaping America's urban future.

Why this kind of analysis has rarely been attempted may have something to do with the fact that there are nearly twenty thousand municipalities and nearly ninety thousand local governments all told in the United States today. (3) It likely has even more to do with the fact that, by comparison to the federal or state constitutions, divining the precise nature of local legal power is not as simple as reviewing a municipal charter. As Frug and Barron note, the precise contours of what they call "city structures" must be culled from a detailed examination of the bewildering "mix of grants of, and restrictions on, local power" (p. 3) through which states shape the authority of their localities.

Frug and Barron tackle this daunting task through a comparative analysis of the legal structures that bind seven large, relatively successful central cities. In their study, Frug and Barron examine not only the contours of home rule--the default scope of local authority to act and resist state preemption--but also plumb the particular empowerment and disempowerment of those seven cities in matters of revenue and expenditure, land use and development, and education policy.

Frug and Barron's foray into the mottled reality of contemporary home rule serves as a springboard for their larger ambition of reforming the oversight of local authority. They acknowledge, and do not shy away from, the reality that states will always play a central role in structuring the terms of local power. They argue nonetheless that states can be much more thoughtful and deliberate in how they create and manage these structures to empower local governments to address urban issues, particularly on a cooperative and regional basis. To flame this advocacy, Frug and Barron outline a series of what they call "city futures"--possible paths of development and identity toward which cities might strive--and convincingly argue that cities face an odd array of state-created enticements and barriers in trying to chart their own democratically accountable destinies.

Frug and Barron's analysis of the unfortunate incentive effects that city structures place on potential urban futures is persuasive. As compelling as their portrait of home rule is, however, it paints an image of local governments that might be overly static in terms of the reaction those governments have to the incentives they face. Frug and Barron hint at the practical challenges to change that the political economy of state oversight poses, and suggest that local governments--even the thriving central cities they highlight--often acquiesce to that oversight as a practical matter. Although it is no doubt true in many instances that local governments react to the legal-structural constraints they face in an inert, rather than dynamic, fashion, emphasizing those constraints risks obscuring the many ways in which local governments struggle to change and transcend the legal playing field on which they operate.

Accordingly, this Review, after describing Frug and Barron's central claims, seeks to add a layer to their conception of local authority by exploring ways in which local governments engage as active agents within the framework of that authority. Many local governments--from Frug and Barron's big cities to far-flung micropolitan rural towns--work to change the state laws that bind them, forge partnerships with other public and private sources of authority, apply traditional legal tools in novel ways when barred from responding to problems more directly, and undertake similar activities that represent a collective refusal to take the scope of their legal authority as a given.

This kind of agentic, entrepreneurial approach to legal authority is unlikely to fundamentally solve the very real structural problems facing local governments that Frug and Barron so ably highlight. It does suggest, however, that some city officials have managed to take pragmatic steps to recalibrate their own power. Encouraging these kinds of leaps by cities and other local governments may be a more promising avenue of reform than hoping for change from the very states that have, intentionally or unintentionally, so often bound their localities.

I. A NEW UNDERSTANDING OF LOCAL AUTHORITY

In City Bound and the previous work on which it builds, (4) Frug and Barron aim to move conceptions of local power away from a stale dichotomy between plenary state authority over their so-called "creatures" (surely not the most flattering way to describe any entity) and the equally unrealistic image of absolute local autonomy. (5) As they argue throughout, local power must be understood not as a monolithic grant of authority or as a blanket denial of local autonomy by the state. Rather, current legal structures unevenly supply and withhold power in a variety of important areas. This legal landscape has the "key feature" of "direct[ing] the substantive ways in which local power is exercised through the complex mix of grants and limits that it establishes" (p. 35).

To bolster this argument, Frug and Barron tapped a group of leading local-government scholars to help them produce detailed comparative examinations of the city structures of Boston, Seattle, New York, Atlanta, San Francisco, Denver, and Chicago. (6) In area after area of substantive authority, Frug and Barron unpack the range of alternating empowerment and disempowerment under which these cities operate. Beginning with home rule, they show how pervasive is the structuring and interference that flows from the state level: the city charters of several of their case-study cities were drafted by state legislatures (p. 64); seemingly sweeping grants of home rule--statutory or constitutional--both give and take power (and leave to the courts the task of confronting almost metaphysical questions of the line between "local" and "state" interest) (pp. 66-69); and, depending on the issue and the state, an almost random pattern of state preemption of local law and conversely local preemption of state law prevails (p. 72).

Likewise in the area of revenue and expenditures, Frug and Barron examine the ubiquitous control that states exert over local fiscal decisions. State law allows and disallows various tax options (pp. 76-87); determines which fees may be assessed and how (pp. 87-90); grants aid generally with strings attached (pp. 90-92); and oddly intrudes into a variety of expenditure decisions (pp. 92-95). The same general pattern holds true in the exercise of the quintessential local power to regulate land use and development. Here, again, cities are both empowered and disempowered in ways that create incentives for acting that local communities might not otherwise choose (pp. 99-120). And, finally, state law sets the terms of much of the actual decision making of local school districts, constraining local choice even when not directly supplanting it (pp. 121-40).

In all of these areas, and others, (7) Frug and Barron rightly argue that states structure local power not only directly, but through a myriad of indirect institutions and policy choices. Thus, for example, the fact that Massachusetts and entities under its purview control Logan Airport, the Tobin Memorial Bridge, the tunnels that connect the city to its east end, and much other important property creates a gaping hole in Boston's land-use authority (pp. 105-07). Similarly, the way that Massachusetts fosters charter schools, sets local school district boundaries, and empowers suburbs to veto interdistrict options creates a set of structures and relationships that significantly affects the ability of the Boston public schools to achieve their goals (pp. 128-34). These indirect state-level choices, as with direct mixing of powers and disabilities, warp the decisions that local governments can make. (8)

In the broad sweep of their argument, Frug and Barron's primary normative concern is the problem of democratic deficits that arise from state intervention, with decisions made or controlled at the state level undermining participation and accountability. Frug and Barron do not seem instrumental about this in the main--they are not arguing that local governments will necessarily make better decisions than their state counterparts. Rather, they argue that cities should be allowed to try in a classic experimentalist mode, possibly fail, learn from the experience, and develop the confidence to chart their own destiny. (9)

City Bound's theoretical construct and empirical investigation allow Frug and Barron to insert themselves into major debates in urban theory and also to outline a reform agenda. On the former, they show that argument after argument among theorists about the nature of cities proceeds without a clear sense of, or even much engagement with, the ways in which states structure local authority. Urban theorists have long debated, for example, whether local politics is dominated by elites or pluralist interest-group jockeying; (10) whether cities have the ability to transcend the external limitations they face; (11) and how to shift toward a paradigm of local governance that privileges coalition building to achieve pragmatic goals. (12) In each of these debates, Frug and Barron argue, there is an important misunderstanding of the nature of legal constraints that shape local governments and the prescriptions that flow from various advocates are destined to fail without a sense of the state-generated legal filters through which they must pass. Frug and Barron are careful not to overstate their claim, (13) but note that any substantive urban agenda must take cognizance of the structure of local-government law itself. (14)

In terms of a reform agenda moving forward, Frug and Barron return to the broader urban discourse to show how state-generated legal structures constrain cities' ability to choose among possible urban futures. Say local officials, for example, decide to try to become a "global city"--an amorphous concept, but one that generally emphasizes a city's role as an international financial capital or immigration destination. Those officials would likely have a number of tools at their disposal, validated by state law, to attract global financial and related service industries. These tools might include land-use policies that favor high-end office construction and relative freedom to provide incentives to companies to relocate--tools that might not be available to pursue other urban futures. Conversely, those officials would be constrained by the fragmentation of local governments (any expenditures, for example, on attracting foreign investment could easily go to a central city's free-riding suburban neighbors), limited control over regional infrastructure, and other practical barriers flowing from state-created legal structures that make it difficult for the Bostons and San Franciscos of the country to compete with London and Beijing (to say nothing of New York).

Frug and Barron apply a similar analysis to several other city futures. Thus, a "tourist city"--a haven for visitors, with Las Vegas as perhaps the prime example--can be fostered by the local government's (albeit controversial) ability to promote privatized public space but might be hampered by state control over regional facilities like sports arenas and convention centers. A "middle class" city that focused on income diversity, preserving broad economic opportunity, and providing good public schools as well as other quality city services may not have the power to achieve the right mix of these goals. And any city that wants to embrace a regional future--an agenda that Frug and Barron favor--must confront a structure of state law that pits local governments against each other in a fragmented scramble for limited resources and power.

As they note, Frug and Barton's four futures do not exhaust the possible paths cities might choose, inviting speculation about how their flame might apply to other urban destinies. Consider, for example, an increasingly important potential path for urban development toward what some commentators have labeled the sustainable city. (15) This urban future would emphasize density and transit orientation in development, promote walkability and a mix of uses to reduce car dependency, encourage renewable energy and urban agriculture, and foster other ways of making cities more livable while reducing the carbon footprint of the built environment. Some cities are already moving in this direction, experimenting with a broad range of policies, including land-use regulatory changes, subsidies, alternative economic-development strategies, creative financing mechanisms, and others. (16)

Do cities have the power to embrace this future as robustly as many advocates argue they must? One can almost instantly hear Frug and Barron replying that the answer is yes and no---that there are likely many poorly conceived and often misunderstood state-created legal structures that might alternatively incentivize cities to pursue this path or deter them from doing so. The great value of Frug and Barron's approach is that it provides such a useful vocabulary for understanding the baseline of empowerment and disempowerment that undergirds any substantive agenda that policymakers, advocates, and community members might seek. (17)

To the extent there is any limitation to the framework that Frug and Barron have laid out in City Bound it is that the "city structures" it describes and the resulting constraints Frug and Barron outline seem to exist in one-way state-local relationships. In these relationships, states create legal structures and cities essentially work within those structures. This leads Frug and Barron to focus their advocacy toward reforms at the state level, which is certainly appropriate. But do cities and other local governments always take the structures they are given at face value?

II. LOCAL-GOVERNMENT AUTHORITY ENTREPRENEURSHIP

On one level, Frug and Barron's claims about the importance of recalibrating home rule deploy conceptions of democratic accountability and slightly less explicitly a kind of law of unintended consequences to focus on the need for state-level reform. On another level, however, City Bound throughout describes a kind of learned helplessness of local governance, with these laboratories of experimentalism hobbled by their inability to set their own agenda. Repeatedly, Frug and Barron describe local officials (primarily in the Boston area) in psychological terms that suggest a kind of state-law-induced timidity or collective flinch reaction. Local officials, Frug and Barron write, lack "self-confidence" (p. 163); "have reason to doubt" the extent of their power (p. 187); act to preserve their self-interest out of "a feeling of not being in control" (p. 207); express "hesitancy" about collaborating with neighboring jurisdictions; and experience "deep ... fear" over loss of competitive advantage (p. 209). Putting city governments on the couch in this striking way suggests to Frug and Barron something of a psychological cure: restoring clarity (although not full autonomy) to the scope of local governance will, they suggest, give officials the requisite sense of self-mastery to chart their own urban future. (18)

This is a very interesting way to think about the unintended consequences of the ubiquitous state involvement in local power and it describes a dynamic too often ignored in explorations of the legal structure of local governance. It would be hard, moreover, to quibble with the depth of the empirical work that Frug and Barron have done to bolster their claims about the psychology of local helplessness. Because their study focuses on a handful of particular cities, with characteristics that might not be generalizable, it is hard to know how widespread the ingrained timidity they describe actually is. (19) There is evidence, however, that some local officials take a decidedly less passive approach to the legal constraints they face.

To begin, many local governments--at times alone although often in concert with other localities--actively work at the state level to change state law. (20) Almost every state has an organization representing local governments--various leagues and associations of cities (21)--and some states have multiple coalitions, representing different types of local governments. (22)

These coalitions pool local-government resources and political capital to focus on a range of state-level legal issues, often mounting explicit lobbying and grass-roots political campaigns. (23) These efforts not only highlight the shared interests that local governments have in mutual empowerment, but also bolster the political strength that any given city or other local government might have in isolation. (24)

Frug and Barron have elsewhere noted an international analogue to this kind of coalition building. (25) They have described international networks of cities, such as United Cities and Local Governments, Sister Cities International, the International City/County Management Association, and other international city networks. (26) These organizations collaborate on a global scale to build capacity, exchange knowledge, and influence the formulation of policies at the international level that impact local governments. (27)

A second strategy that local governments employ to transcend the terms of the legal authority they are given is seeking partnerships that can extend or alter that authority. Perhaps the most significant alternative source to which local governments have turned--and are increasingly turning--is the federal government. In many of the areas of substantive authority that Frug and Barron highlight, including revenue, land use, housing, education, and others, federal-local collaboration provides a source of financing, a means of obtaining legal authority independent from the states (indeed, in some instances, as a shield against the states), and other resources for local government. (28) As with state efforts to work with local governments, there is a constant risk in the federal-local relationship that collaboration becomes coercion. But local governments have the capacity to engage in this kind of partnership willingly and for their own reasons.

Frug and Barron are skeptical of the privatization of local governance, (29) and there are certainly many strong reasons to be cautious about ceding too much public authority. However, in many instances public-private partnerships involving local governments can represent a conscious choice on the part of those governments to leverage private resources, rather than merely a capitulation to local lack of capacity. Indeed, to the extent that cities have been successful in imposing everything from open-space to affordable-housing requirements on private developers, there may be real potential to harness private resources for the public interest rather than inevitably the other way around. (30)

Third, in the face of ambiguous grants of power--and sometimes even in response to direct preemption--local governments take other legal tools they have been given and use them in creative new ways. Take, for example, the crisis hitting so many cities arising from both predatory lending and more recently from subprime mortgages and widespread foreclosures. (31) As years of equity stripping, fraudulent practices, and, more recently, the collapse of mortgage markets have devastated already fragile neighborhoods across the country, local officials have struggled to respond. An early wave of reaction involved attempts to regulate lenders directly to hold them responsible for the consequences of lending practices that caused so much harm to the urban fabric. (32) Lenders responded with litigation that raised state and federal preemption and this litigation significantly disrupted direct efforts to regulate at the local level. (33)

In response, local governments did not simply take the scope of their authority as given, but rather turned to an array of other legal tools to combat the problem. Some cities, for example, invoked public nuisance, building on the experience that localities have had using such theories against gang activities. (34) A few have even begun to explore civil-rights causes of action to combat the harms of "reverse redlining," which is the targeting of minority neighborhoods for unfavorable loan terms. (35) These efforts, in turn, have faced serious challenges, and some have failed. (36) Nonetheless, local governments continue to seek ways of solving problems that will not wait on clarifying uncertain home rule or changing the scope of state and federal preemption. (37)

These myriad examples--which are by no means exhaustive--suggest a landscape of what I will call "authority entrepreneurship." Each is an instance of local governments responding to constraining legal structures by actively working against or around those structures. Whether in lobbying and coalition building at the state (and federal) level, finding alternative sources of authority and resources, or transforming traditional tools to respond to new tasks, cities and other local governments refuse to take the constraints of their legal authority as the final word on their ability to respond to the problems they face. Instead, local officials take on an essentially entrepreneurial role--seeking new opportunities and disrupting existing legal-structural equilibria created by state (and at times federal) law.

There is an extensive literature on public entrepreneurship that highlights the conditions under which political and legal actors innovate within existing structures and may be capable of disrupting those structures in a way that mirrors Schumpeter's creative destruction in economic markets. (38) To the extent that this literature has engaged with local governance, it has tended to do so through a Tieboutian lens conceptualizing local governments as quasi-economic actors competing for mobile resources. (39) The Tieboutian vision of cities as market actors has well-rehearsed limitations, (40) but it may be possible to separate the distributional and other negative consequences of aggressive localism from the potential benefits of a kind of creative approach to problem solving.

While there seems promise in the capacity that some local governments have found to confront challenges with creativity, it is certainly worth being cautious about a power dynamic that may favor local governments with greater resources, conversely disenfranchising localities with relatively less capacity for this kind of struggle. It may also be that efforts by local governments to transcend the bounds of their authority merely replicate the worst kind of what Frug and Barron call "defensive localism," (41) only over a wider scale. These questions--and many others raised by local dynamic reactions to state constraints--are beyond the scope of this Review, but are worth exploring going forward.

To claim that local-government entrepreneurship plays a role within the realm of legal authority is not to argue with Frug and Barron's central claim. It would be hard to deny that states (and the federal government) largely define "the extent to which cities can and cannot deal with the critical problems they face" (p. 231), and the need for local governments to struggle in this way only reinforces the basic dilemma that Frug and Barron illuminate. Moreover, local governments seeking creative solutions to the myriad problems they face would no doubt rather have clear authority than have to work around state-imposed constraints. And, regardless of the success of any entrepreneurial activity, such efforts may be doomed to remain on the margins. (42)

Nonetheless, these examples of local governments attempting to overcome the constraints they face do suggest that Frug and Barron's picture of the learned helplessness of local governance may be incomplete. And to the extent that some commentators have suggested that formal legal structure is less outcome determinative than what local governments actually do within that structure, (43) understanding the capacity that some local governments have, at least some of the time, to transcend the constraints they face may be nearly as important as understanding the constraints themselves.

The other primary reason to focus on local authority entrepreneurship is that City Bound is in many ways a call to arms for reform. This, in turn, raises the question of the political and practical viability of Frug and Barron's prescriptive vision of a reformulated home rule. Frug and Barron are not merely interested in changing our conception of local authority--they want to change the way cities and metropolitan regions actually operate. Some of their proposals seem promising, such as a more self-conscious balancing of local, regional, and state interests and a kind of conditional grant of state authority to local governments that collaborate on a regional basis. Conversely, some of their proposals, while wonderfully creative and thought provoking, seem politically unlikely, particularly their proposal for a regional legislature drawing on the governance structure of the European Union, something they acknowledge has never been tried in the United States.

Given the inherent challenges of convincing states to foster regionalism, promote middle-class cities, or any other substantive vision that Frug and Barron discuss (and others beyond), local entrepreneurship and a structure of local collaboration that does not rely on traditional state supervision might have more immediate promise. There are a number of practical mechanisms for fostering this kind of approach. As noted, for example, the federal government has been at times a facilitator of interlocal collaboration and this is an ideal role for the federal government to play. In the current policy environment, a number of creative models are being proposed to foster enhanced capacity at the local level by the federal government, with some reflecting Frug and Barron's admonition that incentives for collaboration should empower local governments not undermine them. (44)

One advantage that a federal facilitating role may have is that the federal government is under no obligation to work with local governments through state-created mechanisms only. (45) This will be an increasingly important fact as the scale of regionalism--of metropolitan governance--expands to encompass what Robert Lang and Dawn Dhavale have described as "megapolitan" regions. (46) Lang and Dhavale have identified a series of increasingly visible regional clusters of continuous and interrelated development, forming vast urban networks linked by common infrastructure and cultural identity. (47) These regions almost all cross state lines--indeed, several encompass multiple states--and likely will be the locus of the overwhelming majority of new development in the next several decades.

As transmetropolitan regions come to play an increasingly important role as the appropriate scale for governance around a number of pressing concerns, states may have a difficult time performing their traditional role in policing the scope of local authority. As these new regions coalesce and grow, they will increasingly look to the federal government as the only partner capable of leveraging resources and coordination at the appropriate scale. (48)

This is not the only path toward reform and, as Frug and Barron note, state law will remain pervasive. Frug and Barron, although not focused on many specific proposals in this volume (other than the idea of a regional legislature (pp. 216-25)), accordingly target state-level legal reform. This is understandable and, for fundamental, systemic change to occur, the only game in town, so to speak. But given the political economy of local-government law, if the terms and scope of legal authority is itself the potential subject of local-government agency, we should not ignore the ability of local governments to take an active role in shaping their own legal destiny or at least mitigating the more egregious constraints they face.

CONCLUSION

City Bound is an invaluable addition to our understanding of the nature of local governance, painting a nuanced picture of the nature of city power. This Review has sought to build on Frug and Barron's analysis to highlight tools that local governments have used to challenge and at times transcend their legal structures. Local governments, alone and in coalition, work to change the laws that define their authority; they form creative partnerships to work around legal constraints and find new sources of authority; and they draw on traditional powers to solve novel problems. In all of these instances, for better or worse, successfully and unsuccessfully, local governments take something of a leap, refusing to accept the bounds of their authority as a given.

If local governments can be entrepreneurial about the authority they have, the dynamic raises a host of questions. Descriptively, what are the conditions and circumstances that seem to lead some local governments to acquiescence and lead others to creativity and innovation? (49) Normatively, is this kind of creativity and collaboration attractive or should advocates focus more on the deeper structures that local governments face? Should local authority entrepreneurship be channeled in more transparent or democratically accountable ways? Are there distributional consequences to a mode of governance that might be as unevenly distributed as economic, social, and political capital undeniably are at the local level?

These questions will have to await further scholarship, but it is a sign of the strength of Frug and Barron's work that they provide a useful way to begin to approach such issues--and many others. City Bound is elegant, passionate, and clear. Frug and Barron's analysis of the actual structure of the legal authority granted and denied to local governments and the consequences of the incentives that the uneven landscape of home rule creates should be required reading for anyone interested in the future of urban America.

(1.) Louis D. Brandeis Professor of Law, Harvard Law School.

(2.) Professor of Law, Harvard Law School.

(3.) See U.S. CENSUS BUREAU, 2007 CENSUS OV GOVERNMENTS tbl. 3 (2007), http:// www.census.gov/govs/cog/GovOrgTab03ss.html (last visited Aug. 7, 2009) (reporting 19,492 municipalities and 89,476 total local governments, a category that also includes counties, special districts, school districts, and other nonmunicipal entities).

(4.) See, e.g., David J. Barron, Reclaiming Home Rule, 116 HARV. L. REV. 2255 (2003); Gerald E. Frug, Beyond Regional Government, 115 HARV. L. REV. 1763 (2002).

(5.) Frug and Barron focus their analysis on large, relatively successful central cities. This provides a slightly skewed view of some aspects of local governance--most local governments, for example, do not play the outsized political role in their states that Boston, Atlanta, Chicago and other dominant cities play in Massachusetts, Georgia, and Illinois--but in the main their analysis has salience for the range of generalist, elected local governments.

(6.) For research on Seattle, New York, Atlanta, San Francisco, Denver, and Chicago, Frug and Barron commissioned reports, respectively, from Keith Aoki of the University of California-Davis, Richard Briffault of Columbia Law School, William Buzbee of Emory Law School, Richard Ford of Stanford Law School, Richard Schragger of Virginia Law School, and Laurie Reynolds of the University of Illinois College of Law. P. xvi. Frug and Barron had also collaborated, with Rick Su, on a report about home rule in Boston that served as a precursor to the comparative analysis in City Bound. See DAVID J. BARRON ET AL., DISPELLING THE MYTH OF HOME RULE (Rappaport Inst. for Greater Boston 2004), available at http://www.mma.org/component/ docman/doc_download/ 268-dispelling-the-myth-of-home-rule-local-power-in-greater-boston.

(7.) As Frug and Barron note, they could have developed similar analyses for many other areas of local power, including "transportation, public safety, and public health." P. 54.

(8.) One gap in City Bound's descriptive claims is any significant discussion of the federal role both in constraining state authority and in constraining and at times empowering local governments. The federal government, however, does play a role at the local level, at times mandating or encouraging regional cooperation (as with regional air-quality-management districts, see, e.g., Revisions to the California State Implementation Plan, South Coast Air Quality Management District, 73 Fed. Reg. 76,947, 76,948 (Dec. 18, 2008) (to be codified at 40 C.F.R. pt. 52); or metropolitan planning organizations connected to the dispersal of federal transportation funds, see, e.g., Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, 23 U.S.C. [section] 134 (2006) (outlining Metropolitan Planning Organizations' responsibilities in connection with the receipt of federal funds)), and at times acting as an intervening source of authority between states and local governments. See generally Nestor M. Davidson, Cooperative Localism: Federal-Local Collaboration in an Era of State Sovereignty, 93 VA. L. REV. 959 (2007). I will return to this point in Part II, below, but for now it is simply worth noting that the argument Frug and Barron make about the state role in local governments can be made--albeit with less pervasive effect--about the federal role at the state and local level.

(9.) Frug and Barron's picture of the inconsistently constrained nature of local government could, in some ways, apply to every other level of government. The federal government has (theoretically) limited and enumerated powers, is constrained (perhaps at the margins) by the separation of powers and by reservations of power to the states (and to the people), and must not contravene the individual rights provisions of the federal constitution. A similar set of bounds constrains state governments, buffeted between federal preemption and, in some states, constitutional home-rule preemption by local governments. In practice, the federal government and the states may have relatively broad powers compared to the cities on which Frug and Barron focus. But that said, Frug and Barron's point is a powerful one: for every public entity, and particularly for local governments, there is no such thing as pure autonomy or pure control.

(10.) The community power debate pitted theorists who focused on the power of elites to control city policies against pluralists who saw local decisions as the outcome of interest-group politics. Pp. 14-15 (discussing, for example, ROBERT A. DAHL, WHO GOVERNS? DEMOCRACY AND POWER IN AN AMERICAN CITY (1961)).

(11.) Pp. 16-20 (discussing PAUL E. PETERSON, CITY LIMITS (1981)).

(12.) Pp. 20-22 (discussing CLARENCE N. STONE, REGIME POLITICS: GOVERNING ATLANTA, 1964-1988 (1989)).

(13.) P. 22 (noting that their discussion of urban theory "is not intended to suggest that law is the primary, let alone the only, external structure influencing city decision making").

(14.) Pp. 22-23 ("As long as the rules of local government law evade serious analysis, they are unlikely to be changed .... Reformation of the state legal structure must therefore be the primary means by which city power is enhanced.").

(15.) See, e.g., KENT E. PORTNEY, TAKING SUSTAINABLE CITIES SERIOUSLY (2003); see also DOUGLAS FARR, SUSTAINABLE URBANISM (2008).

(16.) See Neal Peirce, Sustainable Cities, AM. PROSPECT, Dec. 17, 2006, available at http:// www.prospect.org/cs/articles?articleId=12322.

(17.) It would be interesting to apply Frug and Barton's analysis retrospectively, to try to isolate how varying legal structures shaped the choices that cities sought to make in response to past junctures. Although the cities they describe vary in many important ways, in certain respects there is a kind of uniformity in governance structures at the metropolitan level. A retrospective analysis might reveal the link between certain legal constraints and specific outcomes, or might help explain why similar outcomes result from different specific constraints. The methodological challenges to this kind of analysis would no doubt be formidable, but could bolster (or perhaps challenge) the theoretical move that Frug and Barron make in linking the current structure of the state law of local government to urban futures.

(18.) As Frug and Barron argue, for example, in discussing how to reform the current structure of local parochialism, a "better alternative" to conditional state aid, would be "to promote regionalism by responding seriously to the widespread sentiment that the state has unduly limited home rule." P. 211. Thus, the problem is perhaps less a question of the actual limits of city power than a psychological barrier to local action.

(19.) One can speculate that large, relatively successful central cities that are the focus of state-wide attention might be more constrained than jurisdictions more at the margins of such attention. Conversely, such cities might have more political power to navigate the shoals that Frog and Barron describe.

(20.) Local governments, moreover, litigate both affirmatively and defensively to assert and protect the scope of their authority, but this discussion will focus on other ways in which local governments seek to change or overcome the baseline of authority they have.

(21.) For a list of the forty-nine state municipal leagues, see National League of Cities, State Municipal Leagues, http://www.nlc.org/inside_nlc/membership/ state_municipal_leagues_v2/ SMLlinks.aspx (last visited Aug. 7, 2009). The National League of Cities is an umbrella organization representing these state municipal leagues, and it maintains a full-time lobbying effort at the federal level.

(22.) Nearly all states have state-level county associations, for example. See National Association of Countries, State Associations, http://www.naco.org/ Template.cfm?Section=Affiliates and Partnerships&Template=/cffiles/naco/stateassoc.cfm (last visited Aug. 7, 2009). This is not to mention the array of associations that represent other actors associated with local governments, including administrators, officials, police, fire, and other service providers.

(23.) See, e.g., Governor Called Urgent Meetings with City Officials to Discuss Impact of Borrowing, CITY ADVOC. WKLY. (Sacramento, Cal.), May 15, 2009, at 4 (describing the Save Your City campaign by the League of California Cities to respond to the local-government aspects of California's budget crisis). Some coalitions of local governments have mounted public-relations campaigns to promote the value of local governance, with an eye toward influencing the state-level political discourse. For example, an effort spearheaded by the Colorado Municipal League, called "Cities and Towns Make it Possible," includes billboards, newspaper ads, essay contests, videos, and other messaging. See http://www.cml.org/info/cities/cities.aspx (last visited Aug. 7, 2009). Similarly, the Florida Municipal League formed a coalition called "Building Citizenship in the Community: Back to Basics" to help increase civic awareness and participation, as well as to target specific legislative goals, particularly education. See Casey Cook, Civics Education: Small Effort, Big Reward, THE DATAGRAM (Tallahassee, Fla.), May 15, 2009.

(24.) For some sense of the scale of this kind of activity, in one state alone, Minnesota local governments spent $35 million to lobby the legislature from 2003 to 2008. See Tom Scheck, Local Governments Spending More on Lobbyists, (Minn. Pub. Radio broadcast Apr. 20, 2009) (transcript available at http://minnesota.publicradio.org/display/web/2009/04/17/ lobbyists_capitol/).

(25.) Gerald E. Frug & David J. Barron, International Local Government Law, 38 URB. LAW. 1 (2006).

(26.) Id. at 24-25.

(27.) Id.

(28.) See Davidson, supra note 8, at 971-75 (describing federal-local collaboration on a variety of policy issues).

(29.) See, e.g., pp. 175-77 (describing Disney World as an extreme example of the privatization of public authority and public space).

(30.) Cf Jody Freeman, Extending Public Law Norms Through Privatization, 116 HARV. L. REV. 1285, 1314-29 (2003) (discussing the process of "publicization" through which private entities come to act in ways that reflect public-law norms).

(31.) See Jonathan L. Entin & Shadya Y. Yazback, City Governments and Predatory Lending, 34 FORDHAM URB. L.J. 757 (2007).

(32.) Id. at 770-72 (discussing local predatory lending laws).

(33.) Id. at 772-82; cf David J. Barron, Foreword: Blue State Federalism at the Crossroads, 3 HARV. L. & POL'Y REV. 1, 1 (2009) (discussing action by the federal Comptroller of the Currency to block local-government action on predatory lending).

(34.) Several cities have used public-nuisance injunctions to stem gang activities. See, e.g., People ex rel. Gallo v. Acuna, 929 P.2d 596 (Cal. 1997); Chicago v. Powell, 735 N.E.2d 119 (Ill. App. Ct. 2000).

(35.) Ngai Pindell, The Fair Housing Act at Forty: Predatory Lending and the City as Plaintiff, 18 J. AFF. HOUS. & COMM. DEV. L. 169, 176-78 (2009).

(36.) Cleveland's public-nuisance suit against twenty-one financial institutions arising out of the subprime mortgage and foreclosure crisis was dismissed at the District Court level, in part on the grounds of state preemption, see Cleveland v. Ameriquest Mortgage Sec., Inc., 621 F. Supp. 2d 513, 517-20 (N.D. Ohio 2009), but the city is pursuing an appeal. See Andrew Longstreth, Judge Dismisses Cleveland's Suit Against Subprime Lenders, AM. LAW., May 18, 2009, available at http://www.law.com/jsp/tal/digestTAL.jsp?id=1202430792417.

(37.) Examples of similar creativity--with similar mixed results--can be found in a number of other policy areas. Cities lacking the authority to respond adequately to gun violence sued gun manufacturers. David Kairys, The Cities Take the Initiative: Public Nuisance Lawsuits against Handgun Manufacturers, in GUNS, CRIME, AND PUNISHMENT IN AMERICA (Bernard E. Harcourt ed., 2003). Cities unable to regulate carbon emissions directly have created a variety of locally driven structures to tackle climate change. See John R. Nolon, Champions of Change: Reinventing Democracy Through Land Law Reform, 30 HARV. ENVTL. L. REV. l (2006). In the face of deadlock on immigration policy at the federal level, local governments (often quite controversially) have begun to use land-use authority, local police, and other tools to make their communities more or less hospitable to immigrants. See Clare Huntington, The Constitutional Dimension of Immigration Federalism, 61 VAND. L. REV. 787 (2008). And a city told it could not foster income diversity through inclusionary zoning because of a state rent-control ordinance that had nothing to do with affordable housing, see Town of Telluride v. Lot Thirty-Four Venture L.L.C., 3 P.3d 30, 40-43 (Colo. 2000) (Mullarkey, J., dissenting), preserved its program by taking advantage of a provision in state law that exempted property in which the housing authority or similar agency had an interest. Barbara Ehrlich Kautz, Comment, In Defense of Inclusionary Zoning: Successfully Creating Affordable Housing, 36 U.S.F.L. REV. 971, 1017 (2002).

(38.) See, e.g., Adam D. Sheingate, Political Entrepreneurship, Institutional Change, and American Political Development, 17 STUD. AM. POL. DEV. 185, 187-91 (2003) (surveying the literature); see also David E. Pozen, We Are All Entrepreneurs Now, 43 WAKE FOREST L. REV. 283, 29091 (2008) (discussing Schumpeter and theories of entrepreneurship).

(39.) See, e.g., Mark Schneider & Paul Teske, Toward a Theory, of the Political Entrepreneur: Evidence from Local Government, 86 AM. POL. SCI. REV. 737, 742--44 (1992) (modeling and testing the role of entrepreneurship in Tieboutian game-theoretical terms); see also Christian Iaione, Local Public Entrepreneurship and Local Self-Government--The Rule of Law and the Role of the Judiciary: The Aftermath of Global Competition among Local Governments ? (working paper, on file with author), available at http://ssrn.com/abstract=977321.

(40.) See, e.g., Aaron J. Saiger, Local Government Without Tiebout, 41 URB. LAW. 93, 102-15 (2009) (discussing the distributional consequences of Tieboutian sorting).

(41.) Pp. 207-09; see David J. Barron & Gerald E. Frug, Defensive Localism: A View of the Field From the Field, 21 J.L. & POL. 261 (2006).

(42.) Cf. Jan Schnellenbach, Public entrepreneurship and the economics of reform, 3 J. INSTITUTIONAL ECON. 2, 183 (2007) (arguing that institutional checks and balances in democracies make entrepreneurial strategies to affect fundamental change unlikely to succeed).

(43.) See, e.g., JESSE J. RICHARDSON, JR. ET AL., IS HOME RULE THE ANSWER? CLARIFYING THE INFLUENCE OF DILLON'S RULE ON GROWTH MANAGEMENT (Brookings Instit. Ctr. on Urban and Metro. Policy 2003), available at http://www.brookings.edu/~/ media/Files/rc/reports/2003/ 01metropolitanpolicy_jesse j richardson jr/dillonsrule.pdf.

(44.) See, e.g., PENN INST. FOR URBAN RESEARCH, RETOOLING HUD FOR A CATALYTIC FEDERAL GOVERNMENT: A REPORT TO SECRETARY SHAUN DONOVAN 126--27 (2009), available at http://www.upenn.edu/penniur/pdf/Retooling HUD-EntireReport.pdf (proposing a "Reverse Challenge Grant Program" that would incentivize collaboration at the state and local level across functional policy areas to create programs with significant regional impact).

(45.) See Davidson, supra note 8, at 1019.

(46.) See ROBERT E. LANG & DAWN DHAVALE, BEYOND MEGALOPOLIS: EXPLORING AMERICA'S NEW "MEGAPOLITAN" GEOGRAPHY (Metro. Inst. at Va. Tech. 2005), available at www.mi.vt.edu/uploads/MegaCensusReport.pdf. The report identified ten "megapolitan" areas: Cascadia in the Pacific Northwest, NorCal and Southland in California and Nevada, the Valley of the Sun in Arizona, the I-35 corridor running north from central Texas, the Gulf Coast, the Peninsula in Florida, the Piedmont, the Midwest, and the Northeast. Id. at 13. The analysis by the Metropolitan Institute at Virginia Tech continues to develop and is projecting additional emerging megapolitan (or "New Metropolis") regions. See, e.g., Robert Lang & Paul K. Knox, The New Metropolis: Rethinking Megalopolis, 43 REGIONAL STUD. 789, 796 (2009) (discussing twenty emerging megapolitan regions). Other commentators have expanded on the idea of megapolitan scale as well. See, e.g., METRO. POLICY PROGRAM, BROOKINGS INST., MOUNTAIN MEGAS: AMERICA'S NEWEST METROPOLITAN PLACES AND A FEDERAL PARTNERSHIP TO HELP THEM PROSPER (2008), available at http://www.brookings.edu/~/media/Files/rc/reports/2008/ 0720-intermountain-west- sarzynski/IMW_full_report.pdf (discussing emerging megapolitan regions in the Intermountain West).

(47.) LANG & DHAVALE, supra note 46,

(48.) See METRO. POLICY PROGRAM, supra note 46 (discussing the federal role in fostering megapolitan prosperity).

(49.) Cf Sheingate, supra note 38, at 191 (discussing the conditions that might foster public entrepreneurship, including opportunities, resources, and assets).

Nestor M. Davidson, Associate Professor, University of Colorado Law School. The author wishes to thank Clare Huntington, Ngai Pindell, and Laurie Reynolds for helpful comments.

Davidson, Nestor M.
Source Citation (MLA 8th Edition)
Davidson, Nestor M. "City Bound: How States Stifle Urban Innovation." Michigan Law Review, Apr. 2010, p. 957+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&id=GALE%7CA223372127&it=r&asid=8989aa2f2f6bf37404dfc270990e27e2. Accessed 3 May 2017.

Gale Document Number: GALE|A223372127

Shepherd, William John. "Waging War: The Clash Between Presidents and Congress, 1776 to ISIS." Military History, Mar. 2017, p. 72+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&it=r&id=GALE%7CA476930403&asid=229c9ef18599a11c19b8d92c9f3330ee. Accessed 3 May 2017. Sherman, Jacob. "Barron, David J.: Waging War: The Clash Between Presidents and Congress, 1776 to ISIS." Library Journal, 1 Dec. 2016, p. 107+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&it=r&id=GALE%7CA472371258&asid=c28cd1817d73e7c72157f2e391741833. Accessed 3 May 2017. Freeman, Jay. "Waging War: The Clash between Presidents and Congress 1776 to ISIS." Booklist, 1 Sept. 2016, p. 12+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&it=r&id=GALE%7CA463754969&asid=31a3a5aa7281f49151641e322b9f6567. Accessed 3 May 2017. "Waging War: The Clash Between Presidents and Congress, 1776 to ISIS." Publishers Weekly, 29 Aug. 2016, p. 83. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&it=r&id=GALE%7CA462236495&asid=5e6b18a8ec1ec85718204a3121451c6f. Accessed 3 May 2017. Davidson, Nestor M. "City Bound: How States Stifle Urban Innovation." Michigan Law Review, Apr. 2010, p. 957+. General OneFile, go.galegroup.com/ps/i.do?p=ITOF&sw=w&u=schlager&v=2.1&it=r&id=GALE%7CA223372127&asid=8989aa2f2f6bf37404dfc270990e27e2. Accessed 3 May 2017.

• New York Times Book Review
  https://www.nytimes.com/2016/11/20/books/review/waging-war-david-j-barron.html?_r=0
  Word count: 1463

  QUOTED: "The stories are terrific, though one has to fight through an immense amount of narrative detail for any broader analysis of what was going on."
  "David Barron has given us a rich and detailed history, and not the least of its riches is that it occasions these thoughts about why it is Congress and not just any old institution that faces off against the president in wartime."

  The American Battle Over War Powers

  By JEREMY WALDRONNOV. 18, 2016
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  President Nixon delivering a State of the Union message to Congress. Credit Bettmann/Corbis

  WAGING WAR
  The Clash Between Presidents and Congress 1776 to ISIS
  By David J. Barron
  Illustrated. 560 pp. Simon & Schuster. $30.

  When this country was at war in Vietnam, Richard Nixon ordered American forces into Cambodia in order to deny the North Vietnamese Army sanctuary in that unhappy country. The incursion occasioned widespread protest and concern. Two senators — John Cooper, a Kentucky Republican, and Frank Church, a Democrat from Idaho — drafted an amendment to the Foreign Military Sales Act prohibiting all further combat in Cambodia. The amendment was of course controversial. Until then Congress had been largely deferential to Nixon’s and Lyndon Johnson’s conduct of the war. But many felt that with the Cambodian invasion, it was past time for legislators to set up some checks and balances and (in Church’s words) “draw the limits on American intervention in Indochina.”

  Opponents of the measure insisted that the lives of American soldiers would be in jeopardy unless their commander in chief could eliminate the Cambodian sanctuaries. And surely he had a right to do that. “I will protect our men in Vietnam,” Nixon said, “unless Congress hamstrings me.” After interminable debate, an amendment was added to the Cooper-Church measure, affirming that it was not intended to take away any of the president’s constitutional power and authority. And then — lest that render the whole exercise meaningless — a second amendment was added from the other side, providing that nothing in the Cooper-Church measure should be read as taking away any of the prerogatives of Congress either.

  The result — a qualified victory for Nixon but an emboldening of his congressional opponents — symbolizes the messy equilibrium over the years between Congress and the White House on the conduct of war. David J. Barron’s fine and detailed history traces this standoff from the earliest days of the Republic, when George Washington and the Continental Congress began to give content to the ambiguous phrase “commander in chief” (inherited like other constitutional verbiage — think “cruel and unusual punishment” — from 17th-century England). Across 400 pages of text, Barron, a federal judge on the United States Court of Appeals for the First Circuit, gives us vivid narratives of the confrontation between Thomas Jefferson and Representative John Randolph over the Aaron Burr uprising; the bitter divisions over “Mr. Madison’s war” in 1812; Congress’s attempt to impose broad tactical choices on the Lincoln administration’s conduct of the Civil War through the Second Confiscation Act; struggles over conscription in World War I; the Lend-Lease controversy in 1940-41; Dean Acheson’s defense of the president’s war powers in the Korean conflict; Vietnam both before and after Cooper-Church; and of course for us, since 9/11, the war on terror.
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  The stories are terrific, though one has to fight through an immense amount of narrative detail for any broader analysis of what was going on. Some of that analysis was given in 2008, in a fine pair of articles on commander-in-chief authority in The Harvard Law Review written by Barron (then a professor at Harvard Law School) and Martin S. Lederman, at the time a visiting professor of law at Georgetown.
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  “Waging War” does offer a political analysis about how far Congress has been prepared to push its interventions over the years and how defiant presidents have been willing to be. Some have been pretty fierce in defense of what they took to be their prerogatives — Nixon and George W. Bush spring to mind. But few have been willing or able to sustain the proposition that the commander-in-chief authority under Article II makes all legislation affecting the conduct of war unconstitutional. “Presidents simply have not been willing to claim the unchecked powers we often assume they think they have.”

  But what exactly is at stake in these tussles between president and Congress? It is not just an exercise in constitutional formalism. If for no other reason than that the textual basis of the rival positions is so thin, we need to understand the reasons that argue in favor of Congress having some authority in these matters. Barron does a good job of presenting what is at stake on the president’s side. But what stands on Congress’s side against these concerns about decisiveness and necessity?

  Is it just a case of checks and balances? Barron says we are better off because presidents have not been able to exercise sweeping unchecked power. But a check doesn’t need to come from Congress. Any institution other than the White House will do: a strong cabinet, the courts, the press, civil society or (as in the war on terror) international opinion.

  Is there something special about Congress as such? Senators and representatives are legislators, so maybe insisting on the president’s deference to the legislative branch is a matter of the rule of law. When analogous disputes broke out in 1793-94 concerning President Washington’s power to abrogate a treaty, James Madison argued (against Alexander Hamilton and others who supported the strong-president position) that the Senate should enjoy coordinate authority in foreign policy, because treaties, which the Senate ratifies, are a part of the law of the land.

  Is it deliberation by a large and diverse body that we are looking for? The president is a “he” (or a “she”) while Congress is a “they” — with hundreds of opinionated members. Barron says that a congressional check helps prevent “group think” within the White House. Or might it be something about the distinctive character of congressional representation? Of course the presidency is an elective office. But there is a different kind of representation for Congress — state by state in the Senate and district by district in the House, with more than 400 members representing the 50 states. And it matters surely that the House, with its diverse local representation, is also the place where any revenues for war must be raised.

  In his great and still-influential essay, “Perpetual Peace” (1795), the philosopher Immanuel Kant argued that countries with genuinely republican forms of government were much less likely to go to war with each other because a republican constitution empowered the very people who would have to bear war’s costs and calamities. A king opting for war doesn’t have to sacrifice his sons and daughters or pay onerous taxes, and so he may “resolve on war as on a pleasure party for the most trivial reasons.” Kant was sensible enough to see that some monarchies were really just republics in fancy dress (it wasn’t Queen Elizabeth II who decided to go to war in the Falklands); but he also worried that office holders in what was ostensibly a republic might nevertheless develop monarchical tendencies.

  There have always been concerns about the president as monarch — ever since the time of the anti-Federalists. At the beginning of Nixon’s second administration, Arthur Schlesinger Jr. wrote about “the imperial presidency.” These are not simply abstractions. They are worries about what happens when a single person is empowered to make wartime decisions without consulting the body set up specifically to represent the very people who will have to pay for those decisions in blood and in treasure. David Barron has given us a rich and detailed history, and not the least of its riches is that it occasions these thoughts about why it is Congress and not just any old institution that faces off against the president in wartime.

  Jeremy Waldron is university professor at N.Y.U. Law School. His most recent book is “Political Political Theory.”

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