The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives

By Gary M. Stern; Morton H. Halperin | Go to book overview

6 Judicial Constraints: The Courts and War Powers

Harold Hongju Koh1

When it comes to the war powers, courts are now treated like small children at a wedding--there to be seen and not heard--while the main players, Congress and the President, busily command center stage. Many have made the case for judicial passivity, usually expressing their fears as a blurred concern about separation of powers and judicial incompetence. Our constitutional structure of separated powers, they say, does not allow judges to usurp the role of generals, much less assume the role confided to our Commander in Chief. Nor, in their opinion, are judges and their law clerks competent to make the factual or legal evaluations necessary to assess the legality of executive action, much less "to specify, monitor, and enforce an injunction circumscribing the President's use of . . . military force"2 Others, I among them, have taken pains to suggest that in war powers cases, courts have played and should continue to play a useful role that is not merely constitutionally permissible, but constitutionally required.3

This chapter seeks not to recapitulate this all-too-familiar debate, but to sharpen it: by identifying those issues that commonly arise in war powers cases, and then briefly suggesting which ones ought to be uncontroversial at this advanced stage in our constitutional history. Nearly all of the most controversial questions were discussed in Judge Harold Greene now famous opinion in Dellums v. Bush,4 an effort by 54 Members of Congress to enjoin President Bush from initiating war against Iraq without prior congressional authorization.

Although Judge Greene held that request unripe, he also rejected the Government's requests that the suit be dismissed for lack of congressional standing or remedial discretion. He further held that the political question doctrine did not bar a federal court from deciding the constitutional question in an appropriate case and controversy. On the question of relief, Judge Greene issued what amounted to an unappealable declaratory judgment against the government, stating without equivocation that the Constitution did not permit the President to order U.S. Armed Forces to make war without meaningfully consulting with Congress and receiving

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The U.S. Constitution and the Power to Go to War: Historical and Current Perspectives
Table of contents

Table of contents

  • Recent Titles in Contributions in Military Studies ii
  • Title Page iii
  • Contents v
  • Acknowledgments vii
  • Introduction 1
  • Notes 8
  • 1: Historical Survey of the War Powers and the Use of Force 11
  • Notes 26
  • 2: Constitutional Constraints: The War Clause 29
  • Notes 46
  • 3: Statutory Constraints: The War Powers Resolution 55
  • 4: Treaty Constraints: The United Nations Charter and War Powers 83
  • Notes 98
  • 5: International Law Constraints 107
  • Notes 118
  • 6: Judicial Constraints: The Courts and War Powers 121
  • Notes 128
  • 7: Constraints on "Covert" Paramilitary Action 133
  • Notes 147
  • 8: "Covert" Paramilitary Action and War Powers 149
  • Notes 157
  • 9: Emergency War Powers 159
  • Notes 166
  • 10: Common Ground 167
  • Notes 176
  • Appendix 179
  • Selected Bibliography 181
  • Index 191
  • About the Editors and Contributors 197
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