The contemporary presidency: judicial restraint and the new war powers.

Author:Farrier, Jasmine

[I]t is the exclusive province of [C]ongress to change a state of peace into a state of war. (UnitedStates v. Smith 1806, 1230)

[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. (Baker v. Carr 1962, 211-12)

[N]one of the legislation drawn to the court's attention may serve as a valid assent to the Vietnam War. Yet it does not follow that plaintiffs are entitled to prevail. (Mitchell v. Laird 1973, 616).

War Is a Three-Branch Question

From the founding to 1950, war usually proceeded in constitutional order: congressional authorization followed by executive enforcement. Over that century and a half, federal judges adjudicated dozens of war-related disputes raised by private litigants that hinged on executive branch adherence to Congress's prior legislative direction. Today, presidents of both parties order new offensive military actions abroad without explicit congressional consent before or even during the conflict. Although House and Senate majorities eventually support these actions one way or another (bills and/or appropriations), on 10 occasions, members of Congress (up to 110 at a time) challenged presidential wars in federal court. These unsuccessful lawsuits deserve new attention because they reflect a quiet, but steady, three-branch constitutional revolution on war that has taken place in the United States, under both parties' watch and under a variety of foreign policy contexts. If all three branches now interpret congressional silence as consent, constitutional war processes have flipped, and the War Powers Resolution is a dead letter.

This article offers three arguments about these developments, using case law, institutional archives, and interviews with members of Congress and their attorneys. (1) First, there is no constitutional reason for federal courts to demur on war powers suits filed by members of Congress, outside of decades of judge-made precedent. Federal judges and scholars are divided on whether courts should take these cases, not whether they can. Second, federal courts hold member--plaintiffs to a different standard than private interest litigants. Members of Congress must show supermajority disapproval of the president's unilateral actions whereas private war litigation once hinged on prior simple majority authorization of the action. Third, the legal postures of all three branches reflect deeply ingrained institutional habits, not partisan differences. Unlike other public policy areas, presidential war is not ideologically divisive.

Reflecting this new normal, the United States has been engaged in a military campaign against the so-called Islamic State in Iraq and Syria (ISIS) since August 2014, with no Authorization for the Use of Military Force (AUMF). According to the Department of Defense, Operation Inherent Resolve has cost an average of $11 million per day for 450 days of operations, which destroyed or damaged over 16,000 targets. (2) While calling for new AUMF in the State of the Union Address in January 2015, and sending a proposal to Congress earlier that year, President Barack Obama and his administration maintained that the necessary authorization is already in place through the 2001 and 2002 AUMFs (against al-Qaeda and Iraq, respectively; Weed 2015b). While ISIS-related terrorist attacks in France have fueled some bipartisan criticism of administration strategy, a new AUMF is unlikely (Carney 2015).

Despite repeated cries of "lawlessness" against the president on domestic policy actions, members of Congress have not pursued a lawsuit on the ISIS actions. Even if members did band together to file a suit that challenged the current ISIS campaign, it is unlikely to jump the formidable hurdles to member suits that federal courts have built over four decades. However, a House-sanctioned lawsuit against the Obama administration on enforcement of the Affordable Care Act (ACA) was recently granted standing to proceed on the merits regarding whether the administration spent money on ACA implementation that was not appropriated by Congress (see United States House of Representatives v. Burwell 2015). Regardless of the ultimate outcome, members can use this case to push the argument that federal courts are a legitimate alternate arena for interbranch disputes. Divided government, partisan gridlock, and a dysfunctional political culture may prevent Congress from using normal legislative processes to challenge presidential actions, but does that mean any president can operate unilaterally until disapproved?

Scholars have taken up different facets of this question since 9/11, with fresh assessments of the policy, partisan, and institutional contours of a new "imperial presidency" (Rudalevige 2006). We are also reminded that congressional war powers are enumerated in the Constitution and the framers' intentions for prior congressional authorization are clear, except in cases of emergency defensive actions (Edelson and Starr-Deeken 2015; Fisher 2013). Yet, the Bush and Obama presidencies defend versions of a "unitary executive theory" of war that largely rejects outside institutional meddling (Posner and Vermeule 2011; Yoo 2010), provoking repeated criticism (Edelson 2013b; Kassop 2003; Pfiffner 2008; Pious 2006). The contemporary House and Senate are also getting renewed attention, with some studies highlighting their formal and informal influence prior to presidential war decisions (Howell and Pevehouse 2007; Kriner 2014) and afterward in the oversight process (Kriner 2010). But these studies do not extinguish long-held accusations of congressional abdication (Fisher 2000b). Congress also shows bursts of short-lived ambition as it pivots from delegation of power to regret and criticism of the use of delegated power (and then delegates again) in domestic and foreign policy (Farrier 2004, 2010).

Federal courts are not a panacea to this state of affairs, but a combination of aggressive presidents, ambivalent congresses, and disinterested justices have clearly upended the Madisonian constitutional system. Unlike civil rights, civil liberties, and economic federalism, federal courts are inconsistent in their interest and more ideologically mixed in separation of powers cases. However, there was once a vibrant debate within the law and courts literature regarding whether or not the federal courts (and especially the Supreme Court) should apply their vast constitutional authority to foreign policy conflicts. Advocates of judicial restraint argued that federal courts should preserve legitimacy and institutional capital by eschewing certain types of cases (Bickel 1986). Avoiding separation of powers (and many federalism claims) would allow the courts to concentrate on protecting individual liberties and small group rights because they are structured in part to attend to these claims (Choper 1980, 2005). On legislative processes, however, courts are ill equipped to police interbranch balance, especially when Congress chooses not to defend itself (Devins and Fisher 2015). Other scholars argue that federal courts could provide a deterrent to unilateral presidential war and/or put pressure on Congress to act. While it is not ideal to "settle" war powers conflicts in court, there is no reason for presidential actions to be off the table automatically (Glennon 1990; Keynes 1982; Redish 1985). Far from deciding to go to war, Ely argued courts "have every business insisting that the officials the Constitution entrusts with that decision be the ones who make it" (1993, 54).

Rather than advocating for judicial supremacy, this article argues that federal courts can jumpstart or reframe constitutional dialogues on war, just by accepting a member lawsuit on the merits and focusing on the origins of presidential authority for the action rather than legislative disapproval after it is already in progress. Rather than being the "final word," federal courts inspire broader conversations and direct legislative responses (Burgess 1992; Devins and Fisher 2015; Tushnet 1999). For example, a federal court can declare a nonemergency, offensive war action unconstitutional pending legislative authorization. While a formal withdrawal order would be unlikely from the court, and unwelcome by many, Congress could be granted a "reasonable time to consider the issue" (Ely 1993, 54). Presidents would then risk a legal and political rebuke when assuming prior authorization is optional, not required. Congress would be forced to make a decision one way or another, and their deliberations would be on the record. While this idea seems fanciful, Supreme Court scrutiny of presidential war powers was once fairly routine.

Three Branch Constitutional Flip from the Quasi War to Vietnam

A systemic shift on constitutional war processes took place across all three branches in the second half of the twentieth century. Before that time, presidents did not advocate unilateral war outside of defensive and emergency situations (Edelson 2013a). Congress was also protective of its war prerogatives, and federal courts scrutinized presidential military orders for evidence of prior authorization, when cases arose from private interest injury claims (Fisher 2005; Silverstein 1997). The sea change in constitutional processes reflects institutional landmarks stretching over two decades. President Truman's initiation of the Korean War under UN authority in 1950, Congress's passage of the broad delegation of the Gulf of Tonkin Resolution in 1964, and the Supreme Court's handling of Vietnam-era member lawsuits.

Early Judicial Interest in War

From the plain language of the Constitution's text, war is a three-branch power. Congress receives the power to declare war in Article I, Section 8, Clause 11. In Article II, Section 2, the "President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into...

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