Boundaries, or a “Poverty of Useful and Unambiguous Authority”?

Abstract

In this chapter, Maurer reflects on the wide range of authority that a civilian principal could leave to the military agent, as demonstrated in Chapter 6, and acknowledges that such broad variation can lead to, rather than heal, the parties’ mutual dissatisfaction. Maurer offers a novel legal device to help the parties and public guide their application of agency duties and norms. Innovatively employing a key concept about Executive Branch power from the famous “Steel Seizure” Supreme Court case, Maurer analogizes the fluctuating war-making powers shared between President and Congress to the fluctuating war-strategizing powers shared between civilian policy-maker and senior military leader. The case’s framework attempts to work out a practical guide for the application of discretionary authority between two parties that each have some degree of power, a distinct lane of responsibility, but who share a blurry division of labor in some contexts.