War Powers, Foreign Affairs, and the Courts: Some Institutional Considerations
Entin, Jonathan L., Case Western Reserve Journal of International Law
As other contributions to this symposium make clear, much of the debate over presidential power in foreign affairs has focused on the dynamics of policy-making within the executive branch and about the relationship between the executive branch and Congress. Strikingly absent from the discussion has been the role of the judiciary. The courts have not been entirely silent, but they have played a diminished role in this area. Although it might very well be "the province and duty of the judicial department to say what the law is," (1) courts generally have not played, nor are they likely to play, a significant role in resolving the debate over the roles of Congress and the president in war and foreign affairs. Getting courts to address those issues requires overcoming various procedural and jurisdictional obstacles. If those challenges are surmounted, courts generally have shown considerable deference to the executive on the merits of these disputes even when ruling against the president's position. This essay concludes, somewhat tentatively, that a modest judicial role in this area probably is desirable because this leaves resolution of interbranch conflicts to the political process.
CONTENTS I. PROCEDURAL AND JURISDICTIONAL BARRIERS TO JUDICIAL REVIEW A. Standing B. Justiciability C. Timing 1. Ripeness 2. Mootness II. DEFERENCE TO THE EXECUTIVE ON THE MERITS III. THE BENEFITS OF POLITICAL RESOLUTION OF INTERBRANCH DISPUTES
I. PROCEDURAL AND JURISDICTIONAL BARRIERS TO JUDICIAL REVIEW
To be sure, the Supreme Court has decided some well-known national security cases. Among them are the Steel Seizure case, Youngstown Sheet 8J Tube Co. v. Sawyer, (2) the Pentagon Papers case, New York Times Co. v. United States; (3) the Iranian hostage case, Dames ?J Moore v. Regan; (4) and some notable First Amendment cases arising out of World War I, such as Schenck v. United States (5) and Abrams v. United States. (6) Then there are the Japanese internment decisions during World War II, notably Korematsu v. United States, (7) as well as Ex parte Quirin, (8) which upheld the use of military commissions to try German agents who landed in the United States as part ofa sabotage mission. Most recently, the Supreme Court has addressed questions arising from the government's response to the attacks of September 11, 2001, in such cases as Hamdi v. Rumsfeld, (9) Hamdan v. Rumsfeld, (10) and Boumediene v. Bush. (11) These cases do matter, but they have not clearly resolved the constitutional and other legal issues that pervade the debate about presidential power and foreign affairs.
Beyond the limitations of the Supreme Court rulings, the judiciary probably will not contribute very much to the debate. Various procedural and jurisdictional obstacles make ir difficult for courts to address the merits of disputes about war powers and foreign affairs. Even if those obstacles can be surmounted, those who decry what they view as presidential excess should note that the judiciary typically has taken a deferential role in reviewing challenges to executive action.
Because the judicial power of the United States encompasses only cases and controversies, (12) neither Congress nor the president could obtain an advisory opinion about war powers or foreign affairs, even if they were so inclined. To satisfy the requirement of standing, an appropriate plaintiff must allege a legally cognizable injury that was caused by the defendant and could be redressed by a suitable judicial remedy. (13)
Most citizens will lack standing to challenge military actions or foreign policy decisions because they would be asserting a generalized grievance. This was the basis for rejecting a challenge to the constitutionality of the Vietnam War. The plaintiffs in Schlesinger v. Reservists Committee to Stop the War (14) claimed that members of Congress who were members of the military reserve were susceptible to undue influence by the executive branch, but the Supreme Court never reached the merits. …