Congress and receiving its affirmative authorization, he put all parties on notice that other suits would soon follow. Had President Bush proceeded to wage war without congressional authorization, he undoubtedly would have faced scores of servicemen suits citing that proposition, claiming (unquestionably ripe) rights not to fight and die in an unconstitutional, unauthorized war.48
I cannot but think that this unsavory prospect helped persuade the President to request, and Congress to grant, an eleventh-hour joint resolution authorizing the war. By promoting that resolution, Dellums established a piece of "quasi-constitutional custom" around which future institutional expectations will likely coalesce.49 All three branches effectively acknowledged Congress's constitutional right to approve the war.50 After Iraq, we will not likely hear our President again claim such a broad inherent constitutional authority to commit U.S. forces to such a large-scale, premeditated, potentially sustained war.51
Thus, Dellums demonstrates that judicial participation in war powers cases, judiciously undertaken, need not be self-perpetuating. To the extent that such participation--particularly when required by statute--forces interbranch dialogue and spurs creation of legally binding or customary norms around which future institutional expectations can converge, the judicial role in war powers cases can remain limited, sporadic, umpireal, and appropriately tailored to the judiciary's institutional expertise.
Questia, a part of Gale, Cengage Learning. www.questia.com
Publication information: Book title: The U.S. Constitution and the Power to Go to War:Historical and Current Perspectives. Contributors: Gary M. Stern - Editor, Morton H. Halperin - Editor. Publisher: Greenwood Press. Place of publication: Westport, CT. Publication year: 1994. Page number: 128.
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