The terrorist attacks of 9/11, followed by the creation of a military tribunal, treatment of detainees, and passage of the USA Patriot Act, brought to the fore again the question of what role federal courts should play in policing the war power. Contemporary legal studies often argue that foreign affairs--and particularly issues of war and peace--lie beyond the scope of judicial jurisdiction and competence. However, the record over the past two centuries demonstrates that not only have courts decided war power issues many times, they have curbed presidential military actions in time of war.
Political scientists have done much to promote the belief in a strong presidency, giving short shrift to legal considerations or constitutional sources of power. The foremost exponent of this view was Richard Neustadt, whose Presidential Power appeared in 1960, in a paperback edition in 1964, and was reissued in various formats over succeeding years. He is best known for defining presidential power as "the power to persuade" and he seemed to accept the constitutional system of checks and balances when he referred to political power as "a give-and-take" (Neustadt 1964, 23, 43). Famously, he said that the Framers created a government of "separated institutions sharing powers" (ibid., 42, emphasis in original).
Elsewhere in the book, however, Neustadt showed little interest in the Constitution's allocation of power. He praised presidents for decisiveness, taking the initiative, and being the "man-in-charge" (ibid., 166). There seemed little need to persuade or to engage in give-and-take. Neustadt wrote the book for "a man who seeks to maximize his power" (ibid., 171). He measured presidential success in terms of action, vigor, decisiveness, initiative, energy, and personal power. In the Afterword, published in the 1964 paperback, he placed the war power squarely in the president: "When it comes to action risking war, technology has modified the Constitution: the President perforce becomes the only such man in the system capable of exercising judgment under the extraordinary limits now imposed by secrecy, complexity, and time" (ibid., 187-88). When war comes, the president "now becomes our system's Final Arbiter" (ibid., 189).
This was a strange formulation. First, Neustadt never examined republican principles, constitutional text, or the intent of the Founding Fathers to reach his conclusion about the legitimacy of presidential war power. He simply just announced it, independent of any legal analysis. It is strange for a second reason. Neustadt focused on the problems that President Harry Truman encountered when he seized steel mills in 1952 to prosecute the war in Korea. Federal courts heard the arguments put forth by the Justice Department, claiming broad and unreviewable emergency powers for the president, and decisively rejected them. Neustadt stands among other political scientists and historians who have justified unilateral presidential wars (Fisher 2005a).
The record from 1789 to the Steel Seizure Case of 1952 is replete with court cases that scrutinized presidential claims for emergency power and frequently found them wanting. It was only with the Vietnam War that courts began to systematically avoid war power questions. For several decades courts acquiesced to the elected branches, routinely relying on various threshold tests to deny plaintiffs the opportunity for relief. After 9/11, courts initially deferred to presidential actions, but slowly judges began to challenge executive branch claims and finally, on June 28, 2004, the Supreme Court entered the fray by issuing decisions that announced its intention to supervise and limit presidential power. Those rulings were notably vague and cautious, but a number of subsequent decisions in the lower courts have been far more assertive and bold in rejecting executive arguments.
Political Questions in Time of War
Political questions are issues of law or public policy that the courts decide not to settle, leaving them to the elected branches to resolve. …