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