Presidential War Powers: Do the Courts Offer any Answers?

• Author: Major Geoffrey S. Corn
• Pages: 03

180 MILITARY LAW REVIEW [Vol. 157

PRESIDENTIAL WAR POWER: DO THE COURTS OFFER ANY ANSWERS?

MAJOR GEOFFREY S. CORN1

Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed . . . is a responsibility of this Court as ultimate interpreter of the Constitution.

-Baker v. Carr2

Few government decisions have greater impact on the military than ordering combat operations. A force that is loyal to the Constitution, which empowers the government to make such decisions, is justifiably proud of an untarnished history of obedience to the war power decisions of the civilian government. Interpretations of the constitutional process for making such decisions, however, have varied throughout U.S. history.3 This article surveys the impact of federal cases on this interpretation. The judicial decisions that either directly or by implication relate to the issue of the constitutional distribution of war powers provide the framework for

analyzing war power controversies and determining the sources and limits of presidential authority to order combat operations.

This framework supports a broad view of executive war power. With the exception of responding to emergencies, however, it is congressional support for war power policies, not the unilateral constitutional power of the President that forms the foundation for this view. While this framework indicates that congressional support for the President is often the sine quo non for a constitutionally valid decision to take the nation to war, judicial decisions also indicate that implied congressional support is constitutionally sufficient. At the other end of the spectrum, these decisions also consistently suggest that explicit congressional non-support marks the outer limits of this broad presidential authority.

The cases analyzed in this article demonstrate three critical points. First, war power issues are justiciable. Second, the federal courts have never concluded that the executive is vested with unilateral constitutional authority to commit United States armed forces to combat. Third, under the right circumstances a war power controversy between the President and Congress may necessitate judicial resolution.4 While many of the cases that are analyzed herein date from early periods of the nation's history, they form the common foundation for virtually all of the cases decided on this issue in recent history.

A preliminary issue that must be addressed is whether there is value in providing legal analysis for what many regard as an inherently political topic. The answer to this is two-fold. First, issues regarding war powers cannot be absolutely categorized as non-justiciable. As this article illustrates, the fluctuating nature of the doctrines of political question and equitable discretion preclude such a conclusion. Second, even when these issues are resolved on a purely political level, the parties to the negotiations rely on the law. Therefore, a knowledge and understanding of this body of law, and the analysis the courts used when faced with such issues, is essential to a thorough understanding of the arguments asserted by both parties to any future political debate surrounding the use of force.

Part I of this article provides the background justifying resort to judicial decisions to analyze this issue. Part II considers whether such an issue could be justiciable. Part III proposes an analytical framework provided by the courts to resolve a separation of powers issue. Parts IV, V, VI, and

VII review war related decisions from different periods of our nation's history. Parts VIII and IX analyze how these decisions, and the history of war making decisions they represent, factor into the analysis based on the template provided in Part III. This article concludes by applying the template to the history of warmaking decisions. This supports a broad, but not uni-lateral view of presidential war power.

I. Background

With only the United States Constitution as a guide to determine which branch of the United States government possessed predominant authority over war power decisions, Congress would logically prevail. While Article II designates the President as the commander in chief of the armed forces,5 Article I explicitly vests Congress with extensive war-related powers.6 Proponents of limited presidential war power assert that the vesting of extensive war-related powers in the legislative branch was no accident. Instead, it was a deliberate attempt on the part of the framers of the Constitution to ensure that the nation went to war only after the judgment of the most representative branch of the government determined that such action was appropriate. According to one such proponent:

[T]he question is whether the grant to Congress of the power to declare war alters or affirms the basic principle of separation of powers . . . it plainly affirms that principle . . . . The power to

declare war, when coupled with other authorities vested on Congress and when viewed as a component of basic constitutional structure, makes it clear that the authority of Congress in this regard covers a broad spectrum, from the creation and regulation of the armed forces through any decision to embark upon sustained hostilities. This is not to suggest the congressional authority arises only at the endpoints of the spectrum. Rather, consistent with the separation of powers principle, the authority of Congress encompasses both the endpoints and the vast territory in between.7

Under such a view, the role of the commander in chief is to execute a conflict once Congress decides to go to war.8 The record of the debate surrounding war powers at the Constitutional Convention is often cited in support of this conclusion.9

Analysis of war making authority, however, only begins with the constitutional text. History illustrates a steadily increasing assertion of presidential war power. This trend is characterized as follows:

Despite the clear framework of congressional predominance ordained by the Constitution, primary authority over the war power has shifted from that representative body to the executive branch. The transfer of authority was not abrupt, but instead occurred through a lengthy process of evolution that picked up pace as the United States emerged in the twentieth century as a recognized world power. The shift was not inevitable; that it has taken place is, however, undeniable.10

The significance of the history of war power decision-making has been asserted to support both expansive11 and restrictive theories of presidential war power.12 Regardless of the textual analysis leading to the conclusion,13 however, the proposition that during the course of history there

has been a shift in predominant authority in this area to the President is well accepted.14

It is against this constitutional separation of powers backdrop that the armed forces of the United States operate today. The only combat operation since the Vietnam War that was expressly authorized by Congress was "Operation Desert Storm" in 1991.15 There is no evidence that the military ever questioned the legality of the numerous other operations that were conducted during this period, and, fortunately, most of these operations were unaffected by war power debate.16 However, a serious future disagreement between the President and Congress regarding a war power decision could conceivably require military leaders to make very difficult decisions. If Congress were to vote against authorizing a future operation, could the President legally order execution? If the execution order was issued, must it be obeyed? If it were obeyed, could the military leaders who executed the order be subject to any adverse consequences? Finally, is there any role for the judicial branch in the event of such an impasse between the two political branches? This article provides an analytical framework for answering such questions by identifying whether the limits of presidential authority to issue constitutionally valid orders to use force

can be derived from an analysis of judicial decisions that relate to both war power and separation of powers issues.17

Resolving such an issue from judicial authority holds special significance for U.S. military officers. There is no question that there exists an abundance of scholarly analysis of this issue, with advocates for both broad and narrow interpretations of presidential war power. While the importance of such works should not be underestimated, especially in the impact they have on policy development, they do not amount to conclusive enunciations on the subject. In contrast, judicial interpretations of the Constitution, pursuant to the precedent of Marbury v. Madison,18 are

ostensibly conclusive. There is no reason to believe that this precedent of judicial authority to interpret the Constitution should not apply to a war power controversy. It is impossible to predict exactly how the political branches (or, for that matter, the military) would respond to a judicial resolution of such an issue. It is fair to presume, however, that such a resolution would be given the respect traditionally accorded such decisions under the U.S. system of government. In fact, when the Supreme Court indicated "that it is an 'inadmissible suggestion' that action might be taken in disregard of a judicial determination"19 it demonstrates that the Court expects

nothing less than full compliance with judicial decisions, even if those decisions relate to a conflict of positions between different branches of the government.

Many scholarly works on this subject dismiss the role of the judiciary in resolving these issues and instead analyze the purported meaning of the Constitution and the debates surrounding its founding. However, members of a profession whose allegiance is owed to the Constitution must...