Presidential war power: Do the courts offer any answers?

Military Law Review

Volumn , Issue 157, 1998, Pages 180-255

  Corn, Geoffrey S ^a,b,c,d,e  

^a The Judge Advocate General's Legal Center and School   (United States)

^b HARTWICK COLLEGE   (United States)

^c 101st Airborne Division   (United States)

^d US Army Personnel Command   (United States)

^e 508th Parachute Infantry Regiment ^*  (Panama)

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[No Author keywords available]

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EID: 0032343318     PISSN: 00264040     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (372)

1. Judge Advocate General's Corps, United States Army. Presently assigned as a professor in the International and Operational Law Department, The Judge Advocate General's School, United States Army, Charlottesville, Virginia. B.A., 1983, Hartwick College, Oneonta, New York; J.D. with Highest Honors, 1992, National Law Center of George Washington University, Washington, D.C. Formerly assigned to the 45th Judge Advocate Officer Graduate Course, The Judge Advocate General's School, United States Army, Charlottesville, Virginia, 1996-1997; Chief of Criminal Law, Senior Trial Counsel, and Legal Assistance Officer, Office of the Staff Judge Advocate, 101st Airborne Division (Air Assault) and Fort Campbell, Fort Campbell, Kentucky, 1993-1996; Funded Legal Education Program, 1989-1992; Future Readiness Officer, Military Intelligence Branch, U.S. Army Personnel Command, Alexandria, Virginia, 1989; S-2, 1st Battalion, 508th Parachute Infantry Regiment, Fort Kobbe, Panama, 1987-1988; Assistant S-2, 193d Infantry Brigade (Task Force Bayonet), Fort Clayton, Panama, 1986-1987; Platoon Leader, 29th Military Intelligence Battalion, Fort Clayton, Panama, 1986; Briefing Officer, G-2, 193d Infantry Brigade (Panama), Fort Clayton, Panama, 1985-1986.
2. 369 U.S. 186, 211 (1962).
3. This issue has also been the subject of intense scholarly debate. See, e.g., Robert F. Turner, War and the Forgotten Executive Power Clause of the Constitution: A Review Essay of John Hart Ely's War and Responsibility, 34 VA. J. INT'L L. 903 (1994).
4. See infra notes 22-67 and accompanying text.
5. U.S. CONST. art. II, § 2.
6. Id. art. I, § 8. These powers include the power of the purse, the power to provide for the establishment and regulation of land and naval forces, and the power to declare war and grant letters of marque and reprisal. Id.
7. Allan Ides, Congress, Constitutional Responsibility and the War Power, 17 LOY. L.A. L. REV. 599, 611 (1984).
8. This position is expressed by Allan Ides as follows: The purpose of vesting this authority in the President was primarily to avoid some of the pitfalls that had arisen during the Revolutionary War when . . . Congress as a deliberative body had proven itself to be an entirely unsatisfactory vehicle for the day-to-day prosecution of war . . . . [T]his power to direct the war effort did not, however, vest the President with the constitutional authority to override the more pervasive authorities of Congress . . . . [T]hus, the Commander-in-Chief's authority, although created by the Constitution, derives its power from congressional will. Without Congress, the President would have neither the forces with which to operate nor, assuming forces had been supplied, the authorization to use those forces. Id. at 611-12.
9. Id. at 612-14. See also JOHN H. ELY, WAR AND RESPONSIBILITY: CONSTITUTIONAL LESSONS OF VIETNAM AND ITS AFTERMATH (1993).
10. Ides, supra note 7, at 616.
11. Id.
12. See generally id.; Robert F. Turner, The War Powers Resolution: Unconstitutional, Unnecessary, and Unhelpful, 17 LOY. L.A. L. REV. 683 (1984); Michael Ratner & David Cole, The Force of Law: Judicial Enforcement of the War Powers Resolution, 17 LOY. L.A. L. REV. 715 (1984); Clement J. Zablocki, War Powers Resolution: Its Past Record and Future Promise, 17 LOY. L.A. L. REV. 579 (1984); Michael J. Glennon, Too Far Apart: Repeal the War Powers Resolution, 50 U. MIAMI L. REV. 17 (1995); Brian M. Spaid, Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?, 17 U. DAYTON L. REV. 1055 (1992); John W. Rolph, The Decline and Fall of the War Powers Resolution: Waging War Under the Constitution After Desert Storm, 40 NAVAL L. REV. 85 (1992); Christopher A. Ford, War Powers As We Live Them: Congressional-Executive Bargaining Under the Shadow of the War Powers Resolution, 11 J.L. & POL. 609 (1995); Bennett C. Rushkoff, A Defense of the War Powers Resolution, 93 YALE L.J. 1330 (1984); ELY, supra note 9.
13. See generally id.; Robert F. Turner, The War Powers Resolution: Unconstitutional, Unnecessary, and Unhelpful, 17 LOY. L.A. L. REV. 683 (1984); Michael Ratner & David Cole, The Force of Law: Judicial Enforcement of the War Powers Resolution, 17 LOY. L.A. L. REV. 715 (1984); Clement J. Zablocki, War Powers Resolution: Its Past Record and Future Promise, 17 LOY. L.A. L. REV. 579 (1984); Michael J. Glennon, Too Far Apart: Repeal the War Powers Resolution, 50 U. MIAMI L. REV. 17 (1995); Brian M. Spaid, Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?, 17 U. DAYTON L. REV. 1055 (1992); John W. Rolph, The Decline and Fall of the War Powers Resolution: Waging War Under the Constitution After Desert Storm, 40 NAVAL L. REV. 85 (1992); Christopher A. Ford, War Powers As We Live Them: Congressional-Executive Bargaining Under the Shadow of the War Powers Resolution, 11 J.L. & POL. 609 (1995); Bennett C. Rushkoff, A Defense of the War Powers Resolution, 93 YALE L.J. 1330 (1984); ELY, supra note 9.
14. See generally id.; Robert F. Turner, The War Powers Resolution: Unconstitutional, Unnecessary, and Unhelpful, 17 LOY. L.A. L. REV. 683 (1984); Michael Ratner & David Cole, The Force of Law: Judicial Enforcement of the War Powers Resolution, 17 LOY. L.A. L. REV. 715 (1984); Clement J. Zablocki, War Powers Resolution: Its Past Record and Future Promise, 17 LOY. L.A. L. REV. 579 (1984); Michael J. Glennon, Too Far Apart: Repeal the War Powers Resolution, 50 U. MIAMI L. REV. 17 (1995); Brian M. Spaid, Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?, 17 U. DAYTON L. REV. 1055 (1992); John W. Rolph, The Decline and Fall of the War Powers Resolution: Waging War Under the Constitution After Desert Storm, 40 NAVAL L. REV. 85 (1992); Christopher A. Ford, War Powers As We Live Them: Congressional-Executive Bargaining Under the Shadow of the War Powers Resolution, 11 J.L. & POL. 609 (1995); Bennett C. Rushkoff, A Defense of the War Powers Resolution, 93 YALE L.J. 1330 (1984); ELY, supra note 9.
15. See generally id.; Robert F. Turner, The War Powers Resolution: Unconstitutional, Unnecessary, and Unhelpful, 17 LOY. L.A. L. REV. 683 (1984); Michael Ratner & David Cole, The Force of Law: Judicial Enforcement of the War Powers Resolution, 17 LOY. L.A. L. REV. 715 (1984); Clement J. Zablocki, War Powers Resolution: Its Past Record and Future Promise, 17 LOY. L.A. L. REV. 579 (1984); Michael J. Glennon, Too Far Apart: Repeal the War Powers Resolution, 50 U. MIAMI L. REV. 17 (1995); Brian M. Spaid, Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?, 17 U. DAYTON L. REV. 1055 (1992); John W. Rolph, The Decline and Fall of the War Powers Resolution: Waging War Under the Constitution After Desert Storm, 40 NAVAL L. REV. 85 (1992); Christopher A. Ford, War Powers As We Live Them: Congressional-Executive Bargaining Under the Shadow of the War Powers Resolution, 11 J.L. & POL. 609 (1995); Bennett C. Rushkoff, A Defense of the War Powers Resolution, 93 YALE L.J. 1330 (1984); ELY, supra note 9.
16. See generally id.; Robert F. Turner, The War Powers Resolution: Unconstitutional, Unnecessary, and Unhelpful, 17 LOY. L.A. L. REV. 683 (1984); Michael Ratner & David Cole, The Force of Law: Judicial Enforcement of the War Powers Resolution, 17 LOY. L.A. L. REV. 715 (1984); Clement J. Zablocki, War Powers Resolution: Its Past Record and Future Promise, 17 LOY. L.A. L. REV. 579 (1984); Michael J. Glennon, Too Far Apart: Repeal the War Powers Resolution, 50 U. MIAMI L. REV. 17 (1995); Brian M. Spaid, Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?, 17 U. DAYTON L. REV. 1055 (1992); John W. Rolph, The Decline and Fall of the War Powers Resolution: Waging War Under the Constitution After Desert Storm, 40 NAVAL L. REV. 85 (1992); Christopher A. Ford, War Powers As We Live Them: Congressional-Executive Bargaining Under the Shadow of the War Powers Resolution, 11 J.L. & POL. 609 (1995); Bennett C. Rushkoff, A Defense of the War Powers Resolution, 93 YALE L.J. 1330 (1984); ELY, supra note 9.
17. See generally id.; Robert F. Turner, The War Powers Resolution: Unconstitutional, Unnecessary, and Unhelpful, 17 LOY. L.A. L. REV. 683 (1984); Michael Ratner & David Cole, The Force of Law: Judicial Enforcement of the War Powers Resolution, 17 LOY. L.A. L. REV. 715 (1984); Clement J. Zablocki, War Powers Resolution: Its Past Record and Future Promise, 17 LOY. L.A. L. REV. 579 (1984); Michael J. Glennon, Too Far Apart: Repeal the War Powers Resolution, 50 U. MIAMI L. REV. 17 (1995); Brian M. Spaid, Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?, 17 U. DAYTON L. REV. 1055 (1992); John W. Rolph, The Decline and Fall of the War Powers Resolution: Waging War Under the Constitution After Desert Storm, 40 NAVAL L. REV. 85 (1992); Christopher A. Ford, War Powers As We Live Them: Congressional-Executive Bargaining Under the Shadow of the War Powers Resolution, 11 J.L. & POL. 609 (1995); Bennett C. Rushkoff, A Defense of the War Powers Resolution, 93 YALE L.J. 1330 (1984); ELY, supra note 9.
18. See generally id.; Robert F. Turner, The War Powers Resolution: Unconstitutional, Unnecessary, and Unhelpful, 17 LOY. L.A. L. REV. 683 (1984); Michael Ratner & David Cole, The Force of Law: Judicial Enforcement of the War Powers Resolution, 17 LOY. L.A. L. REV. 715 (1984); Clement J. Zablocki, War Powers Resolution: Its Past Record and Future Promise, 17 LOY. L.A. L. REV. 579 (1984); Michael J. Glennon, Too Far Apart: Repeal the War Powers Resolution, 50 U. MIAMI L. REV. 17 (1995); Brian M. Spaid, Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?, 17 U. DAYTON L. REV. 1055 (1992); John W. Rolph, The Decline and Fall of the War Powers Resolution: Waging War Under the Constitution After Desert Storm, 40 NAVAL L. REV. 85 (1992); Christopher A. Ford, War Powers As We Live Them: Congressional-Executive Bargaining Under the Shadow of the War Powers Resolution, 11 J.L. & POL. 609 (1995); Bennett C. Rushkoff, A Defense of the War Powers Resolution, 93 YALE L.J. 1330 (1984); ELY, supra note 9.
19. See generally id.; Robert F. Turner, The War Powers Resolution: Unconstitutional, Unnecessary, and Unhelpful, 17 LOY. L.A. L. REV. 683 (1984); Michael Ratner & David Cole, The Force of Law: Judicial Enforcement of the War Powers Resolution, 17 LOY. L.A. L. REV. 715 (1984); Clement J. Zablocki, War Powers Resolution: Its Past Record and Future Promise, 17 LOY. L.A. L. REV. 579 (1984); Michael J. Glennon, Too Far Apart: Repeal the War Powers Resolution, 50 U. MIAMI L. REV. 17 (1995); Brian M. Spaid, Collective Security v. Constitutional Sovereignty: Can the President Commit U.S. Troops Under the Sanction of the United Nations Security Council Without Congressional Approval?, 17 U. DAYTON L. REV. 1055 (1992); John W. Rolph, The Decline and Fall of the War Powers Resolution: Waging War Under the Constitution After Desert Storm, 40 NAVAL L. REV. 85 (1992); Christopher A. Ford, War Powers As We Live Them: Congressional-Executive Bargaining Under the Shadow of the War Powers Resolution, 11 J.L. & POL. 609 (1995); Bennett C. Rushkoff, A Defense of the War Powers Resolution, 93 YALE L.J. 1330 (1984); ELY, supra note 9.
20. See Turner, supra note 3 (providing an excellent discussion of the weaknesses of this view).
21. See supra note 10 and accompanying text.
22. Combat operations initiated pursuant to the orders of the President and absent express Congressional authorization include the Mayaguez rescue mission, the Iranian hostage rescue mission, the deployment of U.S. Marines to Lebanon, Operation Urgent Fury, Operation Just Cause, Operation Joint Endeavor, Operation Provide Hope, and Operation Provide Comfort.
23. One example of an operation that was ostensibly influenced by such debate is the United States participation in Lebanon during 1983. The controversy surrounding this operation led to a debate in Congress as to whether the President was required to comply with the War Powers Resolution. See War Powers Resolution, Pub. L. No. 93-248, 87 Stat. 555 (1973) (codified at 50 U.S.C. A. §§ 1541-1548 (West 1998)). The final result was a specific authorization for continuation of the operation with a specific end date that had been negotiated with the administration. See Ratner & Cole, supra note 12, at 745-49. Another example, albeit less direct, of political debate surrounding war power authority that impacted on an ongoing military operation was the United States involvement in Operation Provide Hope in Somalia. Although erosion in public support was the prime motivation behind the United States pullout from the operation, Congress scrutinized the President's authority to continue an operation that he had unilaterally initiated. The impact of this is less certain than the response to Lebanon. While the Senate passed a joint resolution to support the operation, the resolution languished in the House of Representatives. The President mooted the issue by withdrawing all U.S. forces from the operation. See Sean D. Murphy, Nation Building: A Look At Somalia, 3 TUL. J. INT'L. & COMP. L. 19, 39-40 (1995).
24. The constitutional importance of the congressional responses to these operations may be more significant than the impact they had on the respective operations. It appears that the congressional assertion of authority over the decision to continue these operations increased proportionally to the erosion of public support for them. This is an indication that, while Congress may be content to provide support to certain operations by implication, it continues to reserve the power to reject affirmatively war power policy that is initiated by the President. See infra notes 313-332 and accompanying text.
25. 5 U.S. (1 Cranch) 137 (1803).
26. Powell v. McCormack, 395 U.S. 486, 549 n.86 (1969) (quoting McPherson v. Blacker, 146 U.S. 1, 24 (1892)) (emphasis added).
27. Marbury, 5 U.S. (1 Cranch) at 177.
28. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634-35 (1952) (Jackson, J., concurring).
29. See Powell, 395 U.S. at 549 n.86. This conclusion is based not only on Powell v. McCormack, but also on the text of the oath of a military officer. The oath makes clear that military officers (who will in turn be commanders) swear an oath to support and to defend the Constitution of the United States, and there is no allegiance sworn to either the President or the Congress. It is the judiciary whose historical role has been to interpret the meaning of that Constitution. See, e.g., Marbury, 5 U.S. (1 Cranch) at 177; Baker v. Carr, 369 U.S. 186, 211 (1962). Therefore, loyalty to the Constitution would seem to require acceptance of judicial interpretation of the Constitution.
30. See Ratner & Cole, supra note 12, at 733-34.
31. See infra notes 105-141 and accompanying text (discussing these early Supreme Court decisions).
32. These include the political question doctrine and the doctrine of equitable discretion. See infra notes 27-29, 51 and accompanying text.
33. See, e.g., Dacosta v. Laird, 471 F.2d 1146 (2d Cir. 1973); Berk v. Laird, 429 F.2d 302 (2d Cir. 1970); Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).
34. 369 U.S. 186 (1962).
35. See id. Such an issue is therefore properly left to the political branches of government for resolution. See STEPHEN DYCUS ET AL., NATIONAL SECURITY LAW 140-42 (1990).
36. Baker, 369 U.S. at 217.
37. See, e.g., Dellums, 752 F. Supp. at 1141.
38. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (holding that it is "emphatically the province and the duty of the judicial department to say what the law is").
39. Baker, 369 U.S. at 217. In Powell v. McCormack, the Supreme Court seemed to limit the significance of the concerns that judicial resolution of a controversy involving the political branches would cause embarrassment or show a lack of respect for a coordinate branch. See Powell v. McCormack, 395 U.S. 486 (1968). The Court subjugated these concerns to the traditional judicial responsibility of interpreting the Constitution. See id. See also infra note 33. Furthermore, the language used by the Court in Baker suggests that the enunciated criteria for making a political question determination must be considered in a very discriminating way in light of all of the interests involved in the case. See Baker, 369 U.S. at 217. See also infra note 33 and accompanying text .
40. Baker, 369 U.S. at 217. In Powell v. McCormack, the Supreme Court seemed to limit the significance of the concerns that judicial resolution of a controversy involving the political branches would cause embarrassment or show a lack of respect for a coordinate branch. See Powell v. McCormack, 395 U.S. 486 (1968). The Court subjugated these concerns to the traditional judicial responsibility of interpreting the Constitution. See id. See also infra note 33. Furthermore, the language used by the Court in Baker suggests that the enunciated criteria for making a political question determination must be considered in a very discriminating way in light of all of the interests involved in the case. See Baker, 369 U.S. at 217. See also infra note 33 and accompanying text .
41. See, e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982); Buckley v. Valeo, 424 U.S. 1 (1976); United States v. Nixon, 418 U.S. 683 (1974). Although Baker involved a domestic issue (a reapportionment challenge), Justice Brennan suggested that, while cases touching foreign affairs often may be non-justiciable, such a conclusion should not be automatic. See Baker, 369 U.S. at 211-12. Careful analysis of the precise issue is required. Id. The Court has also rejected as a per se trigger for the doctrine the potential embarrassment that might result from such a resolution. See Powell, 395 U.S. at 548-49 (rejecting the argument that the potential for an embarrassing confrontation between the judicial and legislative branches rendered the case non-justiciable). See also infra notes 35-37 and accompanying text.
42. See, e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982); Buckley v. Valeo, 424 U.S. 1 (1976); United States v. Nixon, 418 U.S. 683 (1974). Although Baker involved a domestic issue (a reapportionment challenge), Justice Brennan suggested that, while cases touching foreign affairs often may be non-justiciable, such a conclusion should not be automatic. See Baker, 369 U.S. at 211-12. Careful analysis of the precise issue is required. Id. The Court has also rejected as a per se trigger for the doctrine the potential embarrassment that might result from such a resolution. See Powell, 395 U.S. at 548-49 (rejecting the argument that the potential for an embarrassing confrontation between the judicial and legislative branches rendered the case non-justiciable). See also infra notes 35-37 and accompanying text.
43. See, e.g., Nixon v. Fitzgerald, 457 U.S. 731 (1982); Buckley v. Valeo, 424 U.S. 1 (1976); United States v. Nixon, 418 U.S. 683 (1974). Although Baker involved a domestic issue (a reapportionment challenge), Justice Brennan suggested that, while cases touching foreign affairs often may be non-justiciable, such a conclusion should not be automatic. See Baker, 369 U.S. at 211-12. Careful analysis of the precise issue is required. Id. The Court has also rejected as a per se trigger for the doctrine the potential embarrassment that might result from such a resolution. See Powell, 395 U.S. at 548-49 (rejecting the argument that the potential for an embarrassing confrontation between the judicial and legislative branches rendered the case non-justiciable). See also infra notes 35-37 and accompanying text.
44. Baker, 369 U.S. at 211-12. In the last portion of this quotation, Justice Brennan suggests consideration of the possible consequences of judicial action. While instinct may trigger consideration of foreign policy embarrassment or failure as such a consequence of judicial resolution of a war power issue, there are other consequences that a court might consider equally important. These could include not only the precedential consequence of a judicial pronouncement of what branch has war power authority, but also the human consequence involved. In short, a court would have to consider that judicial action could conceivably stop or fail to stop a planned military operation, and the lives of the citizen soldiers of this nation would be impacted by any such decision.
45. 395 U.S. 486 (1968).
46. Id. at 486.
47. Id. (citing Baker, 369 U.S. at 217) (emphasis added).
48. 444 U.S. 996 (1979).
49. Id. at 997-98.
50. Goldwater v. Carter, 617 F.2d 697 (1979) (en banc), 444 U.S. 996 (1979).
51. Goldwater, 444 U.S. at 996.
52. Id. at 997-1002.
53. Id. at 1002 (Rehnquist, J., concurring in judgment).
54. Id. at 1003.
55. See infra notes 105-113 and accompanying text.
56. 343 U.S. 579 (1952).
57. Goldwater, 444 U.S. at 1004.
58. 299 U.S. 304 (1936).
59. Goldwater, 444 U.S. at 1005 (quoting Curtiss-Wright, 299 U.S. at 315).
60. Id. at 999-1001 (Powell, J., concurring).
61. Id. at 999-1001 (Powell, J., concurring) (citing United States v. Nixon, 418 U.S. 683, 703 (1974) and quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Although this was only a concurring opinion, the method it established for analyzing a separation of powers dispute - that is, whether the dispute between the two political branches is sufficiently ripe - has used by various courts. "[The test for ripeness is helpful] even though Justice Powell spoke only for himself . . . . Four different views were expressed by the various justices. However, several other courts have adopted Justice Powell's reasoning." Dellums v. Bush, 752 F. Supp. 1141, 1150 n.23 (D.D.C. 1990) (citations omitted). Lower courts have followed this approach in cases that involve war power issues. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202, 210 (D.C. Cir. 1985); Lowry v. Reagan, 676 F. Supp. 333, 339 (D.D.C. 1987), aff'd, No. 87-5426 (D.C. Cir. Oct. 17, 1988); Crockett v. Reagan, 558 F. Supp. 893, 899 (D.D.C. 1982), aff'd, 720 F.2d 1355 (D.C. Cir. 1983) (per curiam). These cases suggest a distinction between the narrow doctrine of judicial restraint based on "political question" concerns and a much broader and improper application of a theory that any "political issue" is non-justiciable. One case in particular suggests that the courts will be far more likely to intervene to resolve a fully ripe dispute between the Congress and the President on the issue of war power than they are to issue a ruling that crystallizes such a dispute. In Crockett v. Reagan, a federal court was again asked by members of Congress (29) to determine whether the War Powers Resolution was triggered by a relatively minor United States military operation that involved the dispatch of 56 military advisors to El Salvador. 558 F. Supp. 893, aff'd per curium, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984). The court concluded "that the fact-finding that would be necessary to determine whether U.S. forces have been introduced into hostilities or imminent hostilities in El Salvador renders this case in its current posture non-justiciable." Id. at 898. The court held that this issue was more appropriate for congressional, not judicial, investigation and determination. Id. The court did, however, distinguish two other situations where it suggested that a similar case would be justiciable. First, it indicated that if asked to determine whether a commitment of ferces on a scale similar to that in Vietnam triggered the War Powers Resolution, "it would be absurd for [the court] to decline to find that U.S. forces had been introduced into hostilities after 50,000 American lives had been lost." Id. Second, and perhaps more significantly for the proposition that a clear and ripe dispute between the branches would be justiciable, the court stated that: If Congress doubts or disagrees with the Executive's determination that U.S. forces in El Salvador have not been introduced into hostilities or imminent hostilities, it has the resources to investigate the matter and assert its wishes . . . . Congress has taken absolutely no action that could be interpreted to have that effect. Certainly, were Congress to pass a resolution to the effect that a report was required under the [War Powers Resolution], or to the effect that the forces should be withdrawn, and the President disregarded it, a constitutional impasse appropriate for judicial resolution would be presented. Id. at 899 (citing Goldwater v. Carter, 444 U.S. 996 (1979) (Powell, J., concurring)) (emphasis added).
62. 369 U.S. 186 (1962).
63. Goldwater, 444 U.S. at 1000 (Brennan, J., dissenting).
64. Id. (citing Powell v. McCormack, 395 U.S. 486, 519-21 (1969)).
65. Ratner & Cole, supra note 12, at 727. See, e.g., Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 1974); Dacosta v. Laird, 471 F.2d 1146 (2d Cir. 1973); Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971); Dacosta v. Laird, 448 F.2d 1368 (2d Cir. 1971); Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971); Berk v. Laird, 429 F.2d 302 (2d Cir. 1970); Atlee v. Laird, 347 F. Supp. 689 (E.D. Pa. 1972), aff'd sub nom., Atlee v. Richardson, 411 U.S. 811 (1973); Mottola v. Nixon, 318 F. Supp. 538, (N.D. Cal. 1970), rev'd. on other grounds, 464 F.2d 178 (9th Cir. 1972).
66. Although initial challenges that were brought during the early phases of the war were dismissed based on the political question doctrine, the analysis that the courts applied to reach the political question conclusion seemed flawed. While these courts focused on the "textually committed" prong of the Baker v. Carr analysis, they based dismissals on the conclusion that the issue of war power was committed to the political branches generally, as opposed to analyzing whether there was a textual commitment of war power to a specific political branch. This resulted in the conclusion that although the exact situs of war power within the government may be uncertain, the certainty that such power was vested in either the executive or legislative branch, or somewhere in between, made the issue a political question. See Luftig v. McNamara, 373 F.2d 664 (D.C. Cir.) (per curium), cert. denied, 387 U.S. 945 (1967); United States v. Sisson, 294 F. Supp. 511 (D. Mass. 1968); Velvel v. Johnson, 287 F. Supp. 846 (D. Kan. 1968), aff'd. sub nom., Velvel v. Nixon, 415 F.2d 236 (10th Cir. 1969), cert. denied, 396 U.S. 1042 (1970). See also Ratner & Cole, supra note 12, at 762 n.212.
67. See supra note 55.
68. See id.
69. See Ratner & Cole, supra note 12, at 733-34.
70. 752 F. Supp. 1141 (D.D.C. 1990). Several of the constitutional scholars whose works are cited in this article participated in this case either as counsel (Michael Ratner, Jules Lobel) or on amicus curai (John Ely, Louis Henkin, Harold Hongju Koh, Michael Glennon).
71. Id. at 1141-42.
72. Id.
73. Id. at 1149.
74. Id. at 1144 n.5.
75. See supra notes 27-32 and accompanying text.
76. See supra notes 35-39 and accompanying text.
77. This is not to suggest that the judiciary would be willing to take on such an issue simply to appease disgruntled legislators. In fact, another doctrine of judicial restraint, know as "equitable discretion," prohibits just such action. In Crockett v. Reagan, twenty-nine members of Congress asked a federal court to determine whether the War Powers Resolution was triggered by a relatively minor United States military operation that involved dispatching 56 military advisors to El Salvador. See Crockett v. Reagan, 558 F. Supp. 893, aff'd per curiam, 720 F.2d 1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984). See also War Powers Resolution, Pub. L. No. 93-248, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§ 1541-1548 (1988). In his opinion, Judge Green (the same judge who, in Dellums v. Bush, suggested a judicial role for resolving a policy conflict between the President and Congress regarding the Persian Gulf War) wrote: When a member of Congress is a plaintiff in a lawsuit, concern about separation of powers counsels judicial restraint even where a private plaintiff may be entitled to relief. Where the plaintiff's dispute appears to be primarily with his fellow legislators, [j]udges are presented not with a chance to mediate between two political branches but rather with the possibility of thwarting Congress's will by allowing a plaintiff to circumvent the process of democratic decisionmaking. Crockett, 558 F. Supp. at 902 (citing Riegle v. Federal Open Mkt. Comm., 656 F.2d 873 (D.C. Cir. 1981)). This case once again illustrates that the jurisdictional pre-requisite is that the two political branches of government be at a true impasse with regard to a war power issue, and not that the case be void of such an issue. The inference drawn from this opinion is that, when the conduct of the President contradicts the express will of Congress on a war power issue, it is the proper role of the judiciary to "mediate between the two political branches." Id.
78. 299 U.S. 304 (1936).
79. See Michael J. Glennon, The War Powers Resolution: Sad Record, Dismal Promise, 17 LOY. L.A. L. REV. 657, 661-63 (1984). See also Harold Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255.
80. See Michael J. Glennon, The War Powers Resolution: Sad Record, Dismal Promise, 17 LOY. L.A. L. REV. 657, 661-63 (1984). See also Harold Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255.
81. Curtiss-Wright, 299 U.S. at 319. This was the precise conclusion of the congressional review of the Iran-Contra affair. In response to assertions that the Boland Amendments ran afoul of the Curtiss-Wright precedent and were therefore unconstitutional restrictions of Presidential authority, the majority report stated: One does not have to be a proponent of an imperial Congress to see that this language has little application to the situation presented here. We are not confronted with a situation where the President is claiming inherent constitutional authority in the absence of an Act of Congress. Instead, to succeed on this argument the Administration must claim it retains authority to proceed in derogation of an Act of Congress . . . . Report of the Congressional Committees Investigating the Iran-Contra Affair (Iran-Contra Report), S. REP. No. 216, H.R. REP. No. 433, at 406-407 (1987).
82. See, e.g., Report of the Congressional Committees Investigating the Iran-Contra Affair (Iran-Contra Report), S. REP. No. 216, H.R. REP. No. 433 (1987). This report contains the review of the legality of the "Iran-Contra Affair" and specifically addresses the issue of presidential authority to direct "arms for hostages" transactions. The majority report recognized that many proponents of presidential power relied on the "sole organ" language from Curtiss-Wright to conclude that the Boland Amendments (which prohibited support for the Nicaraguan Contra Rebels) were unconstitutional. The analysis must begin, of course, with an appropriate statement of what is, and what is not, the issue. Some have attempted, for example, to cast the Boland Amendments as violative of the Supreme Court's famous dictum in United States v. Curtiss-Wright Export Corp., referring to "the very delicate, plenary and exclusive power of the President as the sole organ of the federal government in the field of international relations . . . ." Id. at 406-07. The report ultimately rejected this conclusion. Id. (citing Curtiss-Wright, 299 U.S. 304).
83. Curtiss-Wright, 299 U.S. at 312.
84. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 n.2 (1952) (emphasis added).
85. See supra note 42 and accompanying text.
86. See Ratner & Cole, supra note 12, at 740-50 (discussing the range of congressional responses to military operations subsequent to the Vietnam War, such as Grenada and the Mayaguez rescue).
87. See infra notes 267-283 and accompanying text.
88. 343 U.S. 579 (1952).
89. Id.
90. Goldwater v. Carter, 444 U.S. 996, 1004 (1979) (Rehnquist, J., concurring injudgment).
91. Youngstown, 343 U.S. 579 (1952).
92. Id.
93. Id. at 603-04 (Frankfurter, J., concurring). Absence of authority in the President to deal with a crisis does not imply want of power in the government. Conversely the fact that power exists in the government does not vest it in the President. The need for new leg-islation does not enact it. Nor does it repeal or amend existing law . . . . Id.
94. Id. at 610 (Frankfurter, J., concurring) (emphasis added).
95. Id. at 634-35 (Jackson, J., concurring).
96. Id. at 635-38 (Jackson, J., concurring) (emphasis added).
97. Id.
98. A number of war power cases decided during the Vietnam War illustrate the utility of such a functional approach to analyzing war power authority. These cases sustained the constitutionality of presidential prosecution of the war in Vietnam based on the cooperative policy of both political branches. See infra notes 170-262 and accompanying text. While these cases did not explicitly invoke the Youngstown template, they still validate the utility of focusing on the level of cooperation between the President and Congress when analyzing the constitutionality of a decision that involves a nebulous or "shared" constitutional authority.
99. See supra note 42 and accompanying text.
100. Goldwater v. Carter, 444 U.S. 996, 1004 (1979) (Rehnquist, J., concurring in judgment).
101. While this model may be extremely useful when analyzing a war power dispute, and may be relied on by a court that faces such an issue, it is important to note that while Dames & Moore turned on a separation of powers analysis, the Court carefully limited the holding to the specific issue presented: "[W]e attempt to lay down no general 'guidelines' covering other situations not involved here, and attempt to confine the opinion only to the very questions necessary to decision of the case." Dames & Moore v. Reagan, 453 U.S. 654, 661 (1981). This caveat seemed to be motivated by the Court's concern that it adjudicate such separation of powers disputes only when absolutely necessary. Id. In addition, the value of this framework for resolving a war power controversy may, as a practical matter, be diminished by the fact that it remains a concurring opinion, regardless of the endorsement that Dames & Moore seemed to give it. Furthermore, characterization by a court of a war power dispute as a "foreign affairs" issue may also diminish the value of this framework, which, as the majority indicated in Goldwater v. Carter, involved resolution of a domestic "taking" by the government. See supra note 42 and accompanying text.
102. 453 U.S. at 654.
103. Exec. Order No. 12,170, 3 C.F.R. 457 (1980).
104. Dames & Moore, 453 U.S. at 660.
105. Id. See generally Hugh C. Keenan, Executive Orders: A Brief History of Their Use and the President's Power to Issue Them, in Senate Special Committee on National. Emergencies and Delegated Emergency Powers, 93d Cong., 2d Sess., Executive Orders in Times of War and National Emergency 20 (Comm. Print 1974). See also PETER M. SHANE AND HAROLD H. BRUFF, THE LAW OF PRESIDENTIAL POWER: CASES AND MATERIALS (1988).
106. Id. See generally Hugh C. Keenan, Executive Orders: A Brief History of Their Use and the President's Power to Issue Them, in Senate Special Committee on National. Emergencies and Delegated Emergency Powers, 93d Cong., 2d Sess., Executive Orders in Times of War and National Emergency 20 (Comm. Print 1974). See also PETER M. SHANE AND HAROLD H. BRUFF, THE LAW OF PRESIDENTIAL POWER: CASES AND MATERIALS (1988).
107. Dames & Moore, 453 U.S. at 669 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)).
108. Id. at 655.
109. 50 U.S.C. §§ 1701-1706 (1976 ed., Supp. III).
110. 22 U.S.C. § 1732 (1994).
111. Dames & Moore, 453 U.S. at 677.
112. Id. at 678 (citing Haig v. Agee, 453 U.S. 280 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)) (emphasis added)).
113. Id.
114. See supra note 85 and accompanying text.
115. Dames & Moore, 453 U.S. at 680. "Crucial to our decision today is that Congress has implicitly approved the practice of claim settlement by executive agreement." Id.
116. Id. at 687.
117. 4 U.S. (4 Dall.) 37 (1800).
118. Id.
119. Id.
120. Id.
121. Id. at 39.
122. Id.
123. Id. at 40.
124. Id. at 43-46.
125. Id. at 43 (emphasis added). According to Justice Patterson: The United States and the French republic are in a qualified state of hostility. An imperfect war. As so far as Congress tolerated and authorised the war on our part, so far may we proceed in hostile operations. It is therefore a public war between the two nations, qualified, on our part, in the manner prescribed by the constitutional organ of our country. In such a state of things, it is scarcely necessary to add, that the term "enemy" applies . . . . Id. at 45-46 (emphasis added). This language, particularly that emphasized, certainly suggests that it is for Congress alone to decide when and in which type of military hostilities the United States will engage. Although beyond the scope of this article, it even suggests that Congress can limit the type of operations employed to achieve an authorized objective. If the limited authority Congress granted to conduct naval operations against France precluded "hostilities on land," could Congress have constitutionally limited Operation Desert Storm to a naval blockade and air war? If they had authorized only the use of naval and air power to achieve the United Nations objectives, would an order to conduct the ground war have been constitutional? Fortunately, such a conflict between the Congress and the President seems even less likely today than even a direct dispute over whether to conduct an operation in general.
126. 5 U.S. (1 Cranch) 1 (1801).
127. Id. at 1-2.
128. Id. at 3.
129. Id. at 3-4.
130. Id. at 36.
131. Id. at 28.
132. Id.
133. Justice Marshall's citation to this quotation in his opinion in Holtzman v. Schlesinger highlights the continued significance of this constitutional interpretation to modern analysis of war powers. See Holtzman v. Schlesinger, 414 U.S. 1304, 1312 (1973). According to Justice Marshall: "In my judgment, nothing in the 172 years since those words were written alters that fundamental constitutional postulate." Id.
134. Talbot, 5 U.S. (1 Cranch) 1.
135. 6 U.S. (2 Cranch) 170 (1804).
136. Id. at 172.
137. Id. at 175.
138. Id. at 178.
139. Id.
140. Id. at 172-73.
141. Id. at 179.
142. Id. at 178-79 (emphasis added).
143. In fact, approximately 150 years later, this holding compelled Justice Clark to rule against President Truman in Youngstown Sheet & Tube. In my view - taught me not only by the decision of Mr. Chief Justice Marshall in Little v. Barreme, but also by a score of other pronouncements of distinguished members of this bench - the Constitution does grant to the President extensive authority in times of grave and imperative national emergency . . . . I cannot sustain the seizure in question because here, as in Little v. Barreme, Congress had prescribed methods to be followed by the President in meeting the emergency at hand. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 662 (1952) (Clark, J., concurring).
144. Little, 6 U.S. (2 Cranch) at 177-78.
145. This seems particularly true considering that it was Chief Justice Marshall who first coined the phrase that the President was the "sole organ of the nation in its external relations, and its sole representative with foreign nations." See United States v. Curtiss-Wright Corp., 299 U.S. 304, 319 (1936) (quoting Congressman John Marshall).
146. 27 F. Cas. 1192 (C.C.S.D.N.Y. 1806) (No. 16,342).
147. Id. at 1196-97.
148. Id.
149. Id. at 1192-94.
150. Id. at 1228-31.
151. Id. at 1230-31. There is a manifest distinction between our going to war with a nation at peace, and a war being made against us by an actual invasion, or a formal declaration. In the former case, it is the exclusive province of congress to change a state of peace into a state of war . . . the organ intrusted with the power to declare war should first decide whether it is expedient to go to war . . . and until such a decision be made, no individual ought to assume an hostile attitude; and to pronounce, contrary to the constitutional will, that the nation is at war, and that he will shape his conduct an act according to such a state of things. Id.
152. See 7 J. MOORE, DIGEST OF INT'L LAW 123 (1906) (quoting 7 JEFFERSON'S WORKS 628. [T]he framers gave Congress virtually exclusive power to initiate war, whether declared or undeclared, perfect or imperfect. "The power to 'grant letters of marque and reprisal' refers to the authority to initiate an imperfect kind of limited war, or those acts of hostility which sovereigns exercise against each other, or, with their consent, the subjects of foreign commonwealth, that refuseth to do justice . . . ." The framers gave Congress this power in order to remove any remaining doubt about the authority of Congress, as opposed to the President, to authorize undeclared hostilities. Those war-making powers not within the "declare war" provision were residual in the "grant letters of marque and reprisal" provision . . . . Jefferson recognized the importance of granting Congress authority to grant letters of marque and reprisal: The making of a reprisal on a nation is a very serious thing. Remonstrance and refusal of satisfaction ought precede; and when reprisal follows, it is considered an act of war . . . . [I]f the case were important and ripe for that step, Congress must be called upon to take it; the right of reprisal being expressly lodged with them by the Constitution, and not the Executive. Id. (quoting 2 J. BURLAMAQUI, THE PRINCIPLES OF NATURAL AND POLITICAL LAW 258 (3d ed. 1784). See Charles A. Lofgren, War-Making Under the Constitution: The Original Understanding, 81 YALE L.J. 672, 692-700 (1972)); Ratner & Cole, supra note 12, at 721-22.
153. See supra note 85 and accompanying text.
154. See Little v. Barreme, 6 U.S. (2 Cranch) 170, 177 (1804); United States v. Smith, 27 F. Cas. 1192, 1229-31 (C.C.S.D.N.Y. 1806) (No. 16,342).
155. "The one alteration noted in the constitutional grant of congressional war powers is the substitution of 'declare' for 'make.' The well-established reason for this change was, according to Madison, to leave to the Executive 'the power to repel sudden attacks.'" Ratner & Cole, supra note 12, at 722 n.25 (citing 2 RECORDS OF THE FEDERAL CONVENTION OF 1789, at 318-19 (M. Farrand rev. ed. 1966)). See Lofgren, supra note 140.
156. Prize Cases, 67 U.S. (2 Black) 635, 640-43 (1862).
157. Id. at 636-37.
158. Id. at 652. "War is simply the exercise of force by bodies politic, or bodies assuming to be bodies politic, against each other, for the purpose of coercion." Id.
159. Id. at 668.
160. Id.
161. "[The question] is as to the power of the President before Congress shall have acted, in case of a war actually existing. It is not as to the right to initiate a war, as a voluntary act of sovereignty. That power is vested only in Congress." Id. at 660 (emphasis added).
162. Id. at 669. While the Court noted that there had been congressional ratification of the President's actions after Congress came into session, it made clear that this was not regarded as a prerequisite to the constitutionality of the President's actions, but served only to rebut any assertion that the orders were illegal. "[W]ithout admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress . . . this ratification has operated to perfectly cure the defect." Id. at 671. This caveat that congressional action was not a prerequisite to the authority of the President to respond to war being "thrust" on the nation distinguishes the holding from the first case to address the power of the President to respond to attack on the nation, Martin v. Mott. See Martin v. Mott, 25 U.S. 19 (1813). In that case, the Supreme Court discussed the authority of the President to repel an invasion within the context of the War of 1812. The Court concluded that the President alone must judge whether the nation must use military force to react to an invasion. Id. at 29-30. However, this authority was exercised pursuant to a statutory delegation that authorized the President to call forth the militia "as he may judge necessary to repel such invasion." Id. at 31-32. Based on this delegation, the Court concluded that the discretion exercised by the President was one of exercising the delegation, and not one of independent constitutional authority. Id.
163. This accords with the position of virtually all of the scholars who have addressed this issue. See, e.g., Lofgren, supra note 140; Glennon, supra note 69; Ratner & Cole, supra note 12; Christopher J. Pace, The Art of War Under the Constitution, 95 DICK. L. REV. 557 (1991).
164. This accords with the position of virtually all of the scholars who have addressed this issue. See, e.g., Lofgren, supra note 140; Glennon, supra note 69; Ratner & Cole, supra note 12; Christopher J. Pace, The Art of War Under the Constitution, 95 DICK. L. REV. 557 (1991).
165. This accords with the position of virtually all of the scholars who have addressed this issue. See, e.g., Lofgren, supra note 140; Glennon, supra note 69; Ratner & Cole, supra note 12; Christopher J. Pace, The Art of War Under the Constitution, 95 DICK. L. REV. 557 (1991).
166. This accords with the position of virtually all of the scholars who have addressed this issue. See, e.g., Lofgren, supra note 140; Glennon, supra note 69; Ratner & Cole, supra note 12; Christopher J. Pace, The Art of War Under the Constitution, 95 DICK. L. REV. 557 (1991).
167. Prize Cases, 67 U.S. (2 Black) at 668 (emphasis added).
168. See supra note 85 and accompanying text.
169. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).
170. Id.
171. Id.
172. See supra notes 144-150 and accompanying text.
173. Youngstown Sheet & Tube Co., 343 U.S. at 579.
174. Id. at 582-84.
175. Id. at 582.
176. This was not the first time the Supreme Court specifically addressed the scope of the commander in chief power. In Flemming v. Page, the Court analyzed whether the presidentially ordered occupation of an enemy port, during the congressionally declared war with Mexico, resulted in annexation of the territory. Flemming v. Page, 50 U.S. (9 How.) 602 (1851). The Court unanimously concluded that the occupation could not convert the territory to a possession of the United States and that, as commander in chief, the President's role was to execute the authority granted by law. Id. at 614-15. [The President's] duty and power are purely military. As commander in chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits assigned to them by the legislative power. Id.
177. Youngstown, 343 U.S. at 582.
178. Id. at 580-82.
179. Id. at 587.
180. Id.
181. Id. at 633-34, (Frankfurter, J., concurring).
182. Id. at 643-45 (Jackson, J., concurring) (emphasis added). Justice Douglas also rejected the argument that necessity mandated support for the President: Stalemates may occur when emergencies mount and the nation suffers for lack of harmonious, reciprocal action between the White House and Capitol Hill. That is a risk inherent in our system of separation of powers . . . . We pay a price for our system of checks and balances, for the distribution of power among the three branches of government. It is a price that today may seem exorbitant to many. Id. at 633-34 (Douglas, J., concurring).
183. The precedential value of this case to a war power dispute is debatable. Characterization of such a dispute as either a purely foreign affairs issue or one involving domestic concerns seems to be a condition precedent to determining whether the holding of this case is applicable. This was highlighted by the plurality in Goldwater v. Carter when they rejected the applicability of the Youngstown holding to a pure foreign affairs issue. See Goldwater v. Carter, 444 U.S. 996 (1979); supra note 42 and accompanying text. See also JOHN NORTON MOORE ET AL., NATIONAL SECURITY LAW 773 (1990). As indicated previously, however, many of the factors used to determine whether a case involves a domestic issue, which, according to the Court, were absent in Goldwater, seem to be implicated by a war power controversy. See supra note 42 and accompanying text. Assuming, arguendo, that the analysis of Youngstown might be applied to a war power controversy, some of the language used by the Court seems particularly compelling, and in fact seems directed more towards national security than any other concern.
184. See supra note 149 and accompanying text.
185. See Ratner & Cole, supra note 12, at 730.
186. See supra note 56 and accompanying text.
187. See Ratner & Cole, supra note 12, at 727 (citations omitted).
188. See, e.g., Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Dacosta v. Laird, 471 F.2d 1146 (2d Cir. 1973); Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971); Dacosta v. Laird, 448 F.2d 1368 (2d Cir. 1971); Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971); Berk v. Laird, 429 F.2d 302 (2d Cir. 1970); Atlee v. Laird, 347 F. Supp. 689 (E.D. Pa. 1972), aff'd sub nom., Atlee v. Richardson, 411 U.S. 811 (1973); Mottola v. Nixon, 318 F. Supp. 538 (N.D. Cal. 1970), rev'd. on other grounds, 464 F.2d 178 (9th Cir. 1972). See also Ratner & Cole, supra note 12, at 727.
189. 429 F.2d 302 (2d Cir. 1970).
190. Id. at 304.
191. Id. at 302.
192. Id.
193. Id. at 304.
194. Id.
195. Id. (citing United Sates v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936)).
196. Id. at 304.
197. See supra note 229 (discussing the inferred negative power created by the declaration clause).
198. Berk, 429 F.2d at 304.
199. Id.
200. Pub. L. No. 88-408, 78 Stat. 384 (1964).
201. "From 1964 to 1969, Congress proceeded to pass no less than twenty-four public laws supporting presidential action in Vietnam." Ratner & Cole, supra note 12, at 729 (citing E. KEYNES, UNDECLARED WAR 114 (1982)).
202. Berk, 429 F.2d at 305.
203. Id. at 304 (quoting Baker v. Carr, 369 U.S. 186 (1962)).
204. Id.
205. 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869 (1971).
206. Id.
207. Id. at 1041.
208. Id. at 1042.
209. Id. at 1043.
210. 429 F.2d 302 (2d Cir. 1970).
211. Orlando, 443 F.2d at 1043-44.
212. Id. at 1042 (citing H.R. REP. No. 90-267, at 38 (1967)).
213. Orlando, 443 F.2d at 1043-44.
214. Id. at 1043.
215. 451 F.2d 26 (1st Cir. 1971).
216. Id. at 28.
217. See supra notes 170-262 and accompanying text.
218. See supra note 32 and accompanying text.
219. Massachusetts v. Laird, 451 F.2d at 33.
220. Id. at 34 (emphasis added).
221. Id. at 33.
222. Id.
223. 448 F.2d 1368 (2d Cir. 1971).
224. Id. at 1368-69.
225. See Pub. L. No. 91-672, § 12, 84 Stat. 2055 (1971). See also DYCUS ET AL., supra note 28, at 140-42. "At the end of 1970, spurred by public dissent and frustrated by President Nixon's decision to invade Cambodia, Congress voted to repeal the Gulf of Tonkin Resolution by a single sentence amending an unrelated measure." Id. at 211-12.
226. See supra notes 189-199 and accompanying text.
227. Dacosta, 448 F.2d at 1369.
228. Id. at 1369-70.
229. Id. at 1370.
230. Id. at 1368.
231. Id. at 1370.
232. See supra notes 189-199 and accompanying text.
233. At least two critics have asserted that the cases decided during the Vietnam conflict were the product of a judiciary consistently attempting to avoid reaching deciding the issue of the war's legality without appearing totally ineffective as a branch of government. See Ratner & Cole, supra note 12, at 716. Since 1950, we have witnessed a reversal in the constitutional scheme. The war powers, clearly vested in Congress by the Framers, have come under de facto presidential control. While scholars differ as to the sources, causes, and historical details of this constitutional alteration, very few deny that the constitutional scheme has been radically frustrated. The judiciary has neither attempted to redress nor even recognized this problem. By dismissing in the name of "judicial restraint" challenges to presidential usurpation of the war powers, courts have ignored their institutional role. Id.
234. See DYCUS ET AL., supra note 28, at 215.
235. See Dacosta v. Laird, 471 F.2d 1146 (2d Cir., 1973).
236. See Dacosta, 448 F.2d at 1370.
237. Dacosta, 471 F.2d at 1146. This case highlighted the difficulty in trying to draw a line between the commander in chief, as the "top general," properly directing the execution of a constitutionally authorized war, and the President unconstitutionally altering the very nature of a previously authorized commitment. There is little debate over the authority of the President to direct the execution of a constitutionally authorized war. See supra note 12 and accompanying text. The court appears to have determined that the second half of this issue is too complex to adjudicate. See infra note 223 and accompanying text.
238. Dacosta, 471 F.2d at 1146.
239. Id. With the issue framed this narrowly, the court held that the "lack of judicially manageable standards" prong of the political question doctrine mandated dismissal. Id. at 1155.
240. Id. at 1154.
241. Id. at 1156.
242. Id. at 1155-56.
243. Id. at 1157.
244. Id. This language certainly suggests that the court in fact did resolve the ultimate issue in the case and concluded that Congress had authorized, at least by implication, the escalation ordered by the President. It reached this conclusion by focusing primarily on appropriations that supported continued hostilities. The War Powers Resolution places into question whether such a conclusion would be valid today. See infra note 262. Furthermore, such an analysis can potentially be perceived as posing a danger of inverting the constitutional war power process. If Congress is vested with the power to authorize a conflict, the logical conclusion is that failure to reach a majority in favor of conflict results in non-authorization. This ostensibly requires that a bare majority of only one house of Congress be opposed to a conflict. Even a resolution to withdraw authorization for a conflict would require only a simple majority of both houses. In neither case would there be a necessity to muster a super-majority to override a veto. However, the simple majority would be insufficient to override a virtually certain presidential veto of a bill that terminates appropriations for a conflict. Therefore, while this focus on appropriations seems legitimate in the face of no other indication of congressional will (assuming that the War Powers Resolution does not impact this analysis), a resolution that opposes a conflict or a refusal to authorize it in the first place should trump such a consideration.
245. 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974).
246. Holtzman v. Schlesinger, 361 F. Supp. 553 (E.D.N.Y. 1973).
247. Id.
248. Holtzman, 484 F.2d at 1313.
249. Id. at 1313-14. Phrased alternatively, an authorization to go to war, which requires a simple majority of both houses under the Constitution, requires a super-majority of both houses not to authorize once the President unilaterally commits U.S. forces to combat operations.
250. Holtzman, 361 F. Supp. at 553.
251. Holtzman, 484 F.2d at 1308.
252. Holtzman v. Schlesinger, 414 U.S. 1304 (1973).
253. Id. at 1311. Justice Marshall wrote: "[T]here is a respectable and growing body of lower court opinion holding that Art. I, § 8, cl. 11, imposes some judicially manageable standards as to congressional authorization for war making, and that these standards are sufficient to make controversies concerning them justiciable." Id.
254. Id. at 1315. Another major consideration applied by Justice Marshall to reach the conclusion that dissolution of the stay was inappropriate was the accelerated hearing already ordered by the Second Circuit. Id.
255. "With the case in this posture, however, it is not for me to resolve definitively the validity of the applicants' legal claims. Rather, the only issue now ripe for decision is whether the stay ordered . . . should be vacated." Id. at 1308.
256. Id. at 1314.
257. Id. at 1311-12.
258. Holtzman v. Schlesinger, 414 U.S. 1316 (1973).
259. Id.
260. Id.
261. Id. at 1319.
262. Id. at 1317.
263. "It has become popular to think the President has that power to declare war. But there is not a word in the Constitution that grants that power to him. It runs only to Congress." Id. at 1318.
264. Id. at 1317-18.
265. Holtzman v. Schlesinger, 414 U.S. 1321 (1973).
266. Id. at 1322. In support of his decision, he indicated that he had contacted the other members of the Court, who, with the exception of Justice Douglas, agreed with his decision. Justice Douglas dissented and challenged the procedure Justice Marshall used to determine the views of other Court members. Id. at 1322-23.
267. Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973).
268. Id.
269. Id. at 1313-14.
270. Id.
271. See supra note 218 accompanying text.
272. See supra notes 105-141 and accompanying text.
273. See supra notes 86-87 and accompanying text.
274. See supra note 85 and accompanying text.
275. Id.
276. See supra note 189 and accompanying text.
277. The War Powers Resolution significantly altered the issue of what constitutes sufficient congressional support for the President. See War Powers Resolution, Pub. L. No. 93-248, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§ 1541-1548 (1994)). In what seems to be an effort to prevent non-explicit congressional authorization to be interpreted as support for a President, as the courts consistently did through the Vietnam War era, the War Powers Resolution included two provisions to require explicit indications of congressional support for the President. Section 1541, Purposes and Policy, subsection (c) states that: The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by an attack upon the United States, its territories or possessions, or its armed forces. Id. § 1541(c) (emphasis added). This language indicates that, except for the President's authority to "repel sudden attack," only a declaration of war or its functional legislative equivalent may be treated as war-making authorization from Congress. This requirement for an express authorization appears again in § 1541, Congressional Action. In subsection (b), it allows an unauthorized deployment to continue beyond 60 days only when authorized by a declaration of war or specific statutory authorization. Id. § 1541(b). Finally, in § 1547, Interpretation of Joint Resolution, the following language appears: (a) Authority to introduce United States Armed Forces into hostilities or situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred - (1) from any provision of law (whether or not in effect before November 7, 1973), including any provision contained in any Appropriations Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter. Id. § 1547(a)(1) (emphasis added). If these provisions are constitutional, which is an issue vel non, courts would have the "manageable standard" by which to judge congressional participation in war-making decisions. Courts would then be unable to dismiss as political questions those cases that involve issues that are similar to those of the Vietnam era once "some" congressional participation has been identified. In the context of those decisions, these provisions certainly appear to be an effort to prevent just such results. However, because the constitutionality of the War Powers Resolution is far from certain, and because there is no evidence that the courts will treat these provisions as binding in future cases, this article assumes that the War Powers Resolution is not applicable.
278. Spaid, supra note 12, at 1082-83. Although Congress overwhelmingly passed a joint resolution supporting the President's actions, it cautioned the President that future military decisions must be based on United States "constitutional and statutory processes." Id. at 1082 (quoting Susan F. Rasky, House Democrats Caution Bush on War, N.Y. TIMES, Dec. 5, 1990, at A-22).
279. See S.C. Res. 678, U.N. SCOR, 45th Sess., U.N. Doc. S/INF/46 (1990).
280. Spaid, supra note 12, at 1083. Up until this date, the President had asserted that the mission of the U.S. forces deployed to the Persian Gulf was defensive - to protect Saudi Arabia from further aggression by Iraq. Both houses of Congress explicitly supported this policy. However, the resolution that expressed support also indicated that "future decisions about military action would be tied to 'United States constitutional and statutory processes.'" Id. at 1081 (quoting Rasky, supra note 263, at A22).
281. Michael J. Glennon, The Gulf War and the Constitution, 70 FOREIGN AFF. 84, 86 (1991).
282. See Spaid, supra note 12, at 1084. The debates over the question of whether the President should be granted authority to conduct offensive military operations in the Persian Gulf were described by one scholar as follows: "The debates preceding the votes in both houses, though truncated by the eleventh-hour nature of the President's request, were among the most responsible within memory." ELY, supra note 9, at 50.
283. Glennon, supra note 12, at 22 (quoting Excerpts: The Great Debate on War Powers, NAT'L L.J., Jan. 21, 1991, at 26 [hereinafter Excerpts]) (emphasis added).
284. Frontline: The Gulf War (PBS television broadcast, Jan. 28, 1997) [hereinafter Frontline].
285. See Authorization for the Use of Military Force Against Iraq, Pub. L. No. 102-1, § 2(c)(1)(C)(2), 105 Stat. 3, 4 (1991).
286. The Department of Defense analysis in support of the legality of U.S. military participation in Operation Restore Hope in Somalia is a subsequent example of reliance on the United Nations Participation Act and the United States obligation to support the United Nations as such a grant of authority. See Memorandum, General Counsel, Department of Defense, to Secretary of Defense, subject: Legal Authority for Somalia Relief Operations (Dec. 5, 1992).
287. Pub. L. No. 79-264, ch. 583, 59 Stat. 619 (1945) (codified at 22 U.S.C. §§ 287-287(e) (1994)).
288. Spaid, supra note 12, at 1074-75 (quoting U.N. CHARTER art. 43).
289. Turner, supra note 3, at 959 (quoting H.R. REP. No. 79-1383, at 4-5 (1945) (emphasis added).
290. Id. at 5 n.198.
291. History has certainly called into question the significance of this statute, particularly since the United States has never entered into an Article 43 agreement. Id. at 1066 (citing Mary Ellen O'Connell, Enforcing the Prohibition on the Use of Force: The U.N.'s Response to Iraq's Invasion of Kuwait, 15 S. ILL. U. L.J. 453, 466 (1991)). Whether this indicates that the use of U.S. forces to implement United Nations resolutions under Article 42, such as in Korea and Haiti, should be regarded as evidence of a source of unilateral presidential authority is questionable. Even if these operations were not conducted pursuant to specific statutory authorization, it does not follow that the authority of the President to commit U.S. forces flowed from the U.S. obligation to the United Nations. (It should be noted that, in Dellums v. Bush, the argument put forth by the government on behalf of the President's unilateral authority to conduct offensive operations in the Persian Gulf was not based on United Nations treaty obligations, but on the "President's sole power to determine when military activity constitutes 'war' for constitutional purposes," an argument rejected by the court. See Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990). See also Glennon, supra note 12, at 22). Instead, these uses of force can be viewed as being consistent with the holdings of those cases that look to the absence of a contrary congressional position to conclude that the President and Congress have cooperated in the war power decision to such an extent as to render the decision constitutionally valid. There is no example in United States history of an operation that was conducted under the auspices of a United Nations resolution where the President acted contrary to the express will of Congress. There is also no precedent for the conclusion that because an employment of force is not in violation of international law it is automatically constitutionally valid. According to Glennon: [A] hortatory resolution of the Council, or one authorizing use of force but not requiring it, can have no effect on the U.S. domestic system of reallocating constitutionally assigned power; that a right exists under international law to take certain action says nothing about whether a power exists under domestic law to exercise that right. The allocation of domestic power is directed by the Constitution, not by international law. For this reason, Article 51 cannot be read to confer a power on the President to use force without congressional consent when he is asked to do so in collective self-defense by a state subject to armed attack. Glennon, The Constitution and Chapter VII of the United Nations Charter in Agora: The Gulf Crisis in International and Foreign Relations Law, 85 AM. J. INT'L L. 74, 81 (1991). This view was expressed by Schlesinger specifically regarding the Korean conflict: "[A]s for the United Nations resolutions, while they justified American military action under international law, they could not serve as a substitute for the congressional authorization required in national law by the Constitution." ARTHUR M. SCHLESINGER, JR., THE IMPERIAL PRESIDENCY 133-34 (1973). See Jane E. Stromseth, Authority to Initiate Hostilities: Collective Force and Constitutional Responsibility: War Powers in the Post Cold-War Era, 50 U. MIAMI L. REV. 145 (1995). As to this question, the steel seizure decision also seems significant for the total lack of analysis of whether the actions of the President were constitutionally justified because he was executing a military operation pursuant to a unilateral authority he derived from the United States obligation to the United Nations. See supra notes 158-169 and accompanying text.
292. The debate over whether to grant the authorization requested was intense, and the vote in the Senate resulted in 52 in favor of the authorization and 47 against. Frontline, supra note 269.
293. 752 F. Supp. 1141 (D.D.C. 1990).
294. Id.
295. Id. The lawsuit was initiated after the buildup of U.S. forces to provide an offensive capability, but before the vote in Congress regarding granting authorization to the President to use force as he planned. Id.
296. Id. at 1144.
297. Id. at 1146.
298. Id. at 1141-42.
299. See id. at 1144 n.5.
300. Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 1974); Dacosta v. Laird, 471 F.2d 1146 (2d Cir. 1973); Massachusetts v. Laird, 451 F.2d 26 (1st Cir. 1971); Dacosta v. Laird, 448 F.2d 1368 (2d Cir. 1971); Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971); Berk v. Laird, 429 F.2d 302 (2d Cir. 1970).
301. This position is consistent with the analytical framework of Youngstown and Dames & Moore. See supra notes 68-104 and accompanying text.
302. This position is asserted by at least one prominent scholar. See Turner, supra note 3, at 920.
303. See U.S. CONST, art. II. See also Ides, supra note 7, at 7; ELY, supra note 9.
304. See U.S. CONST, art. II. See also Ides, supra note 7, at 7; ELY, supra note 9.
305. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring). See also infra note 294 and accompanying text.
306. Ides, supra note 7, at 616-20 (citing S. REP. No. 90-797, at 9-12 (1967); U.S. DEP'T OF STATE, RIGHT TO PROTECT CITIZENS IN FOREIGN COUNTRIES BY LANDING FORCES (3d rev. ed. 1933); 23 DEP'T. ST. BULL. 173 (1950)).
307. Youngstown, 343 U.S. at 610 (Frankfurter, J., concurring).
308. This conclusion has also been expressed in the academic community. By repeated exercise without successful opposition, the Presidents have established their authority to send troops abroad probably beyond effective challenge, at least where Congress is silent, but the constitutional foundations and the constitutional limits of that authority remain in dispute. Such authority no doubt resides somewhere in the government of a sovereign nation; constitutional Scripture does not explicitly grant it to Congress or deny it to the President, and it provides some text in support of his initiatives. LOUIS HENKIN, FOREIGN AFFAIRS AND THE CONSTITUTION 53 (1972) (emphasis added).
309. See Ides, supra note 7, at 626. It has been argued that congressional acquiescence in the practice of executive war making has constitutionally legitimized the model of presidential predominance . . . . If this theory is correct, then it can only mean that an unconstitutional practice long endured amends the Constitution for we are not here dealing with anything that can be legitimately described as a gray area. The theory is without merit. Article V of the Constitution provides a method of amendment and so long as that method is not used, the Constitution remains unaltered regardless of any pattern of behavior undertaken by the President, the Congress or the Supreme Court. There is no doctrine of amendment by violation. Patterns of unconstitutional behavior call for one response - repudiation. Id. (citation omitted).
310. See supra notes 7-16 and accompanying text.
311. See, e.g., ELY, supra note 9.
312. Turner, supra note 3, at 920-21.
313. See id. at 952-65.
314. 453 U.S. 654 (1981). See supra notes 61-64 and accompanying text (discussing the facts of the case). See also Stromseth, supra note 276, at 159 n.66.
315. Dames & Moore, 453 U.S. at 686-88.
316. Id.
317. Id. at 678 (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring)).
318. Id.
319. Id. at 686-88.
320. Youngstown, 343 U.S. at 610-11 (Frankfurter, J., concurring).
321. Id.
322. Once again, this does not refer to the narrow exceptions based on the inherent power of the President to "repel sudden attack." See supra notes 110-120 and accompanying text.
323. See supra notes 170-262 and accompanying text.
324. See Dames & Moore, 453 U.S. at 686.
325. This distinction, and the analytically flawed conclusion that results from analogizing implied congressional support to no congressional role whatsoever, was pointed out by Wormuth & Firmage: 1. Actions for which congressional authorization was claimed 7 2. Naval self-defense 1 3. Enforcement of law against piracy, no trespass 1 4. Enforcement of law against piracy, technical trespass 7 5. Landings to protect citizens before 1862 13 6. Landings to protect citizens, 1865-1967 56 7. Invasion of foreign or disputed territory, no combat 10 8. Invasion of foreign or disputed territory, combat 10 9. Other reprisals not authorized by statute 4 10. Minatory demonstrations without combat 6 11. Intervention in Panama 1 12. Protracted occupation of Caribbean states 6 13. Actions anticipating World War II 1 14. Bombing of Laos 1 15. Korean and Vietnam Wars 2 16. Miscellaneous 2 Total 137 . . . . One cannot be sure, but the number of cases in which Presidents have personally made the decision, unconstitutionally, to engage in war or in acts of war probably lies between one and two dozen. And in all those cases the Presidents have made false claims of authorization, either by statute or by treaty or by international law. They have not relied on their powers as commander in chief or as chief executive. In the case of executive wars, none of the conditions for the establishment of constitutional power by usage is present. The Constitution is not ambiguous. No contemporaneous congressional interpretation attributes a power of initiating war to the President. The early Presidents, and indeed everyone in the country until the year 1950, denied that the President possessed such power. There is no sustained body of usage to support such a claim. It can only be audacity or desperation that leads the champions of recent presidential usurpations to state that "history had legitimated the practice of presidential war-making." FRANCIS D. WORMUTH & EDWIN B. FIRMAGE, TO CHAIN THE DOG OF WAR 143-44, 147, 149 (1986), reprinted in DYCUS ET AL., supra note 28, at 241-43. See Monaghan, Presidential War-Making, 50 B.U. L. REV. (Special Issue) 19, 25-31 (1970).
326. See Spaid, supra note 12; Ratner & Cole, supra note 12, at 723-26. See also Turner, supra note 3.
327. See Spaid, supra note 12; Ratner & Cole, supra note 12, at 723-26. See also Turner, supra note 3.
328. See Spaid, supra note 12; Ratner & Cole, supra note 12, at 723-26. See also Turner, supra note 3.
329. Turner, supra note 3, at 950, 956 (citing ELY, supra note 9, at 50, 53, 151) (emphasis added). The vote to extend the draft immediately after President Truman informed key congressional leaders of his decision to support South Korea provides even more compelling support for the conclusion that the actions of Congress demonstrated, in accordance with the analysis applied in the Vietnam era cases, sufficient evidence of implicit support for the war. Id. at 952 n. 179.
330. See supra note 308 and accompanying text. The significance of this conclusion transcends the rejection of unilateral presidential war power. It creates, in the opinion of this author, the most significant constitutional impediment to the validity of the War Powers Resolution. See infra note 340 and accompanying text. This conclusion is supported by analysis of the congressional role related to recent military operations, such as Operation Restore Hope in Somalia, Operation Uphold Democracy in Haiti, and Operation Joint Endeavor in Bosnia. In all three cases, although the President took the initiative by involving the United States in the operation, Congress debated the propriety of United States involvement and ultimately provided both fiscal and joint resolution support. See Stromseth, supra note 276.
331. Pub. L. No. 93-248, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§ 1541-1548 (1994)).
332. From the very time of the passage of the War Powers Resolution, these issues have spawned tremendous debate. See Richard Nixon, Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (1973). See also Turner, supra note 12; Ratner & Cole, supra note 12; Zablocki, supra note 12; Ides, supra note 7; Glennon, supra note 12; Spaid, supra note 12; Rolph, supra note 12; Ford, supra note 12; Rushkoff, supra note 12. Future success of recent efforts to repeal the War Powers Resolution may moot these questions. See The Peace Powers Act of 1995, S. 5, 104th Cong. (1995) (including a provision specifically repealing the War Powers Resolution, but mandating new consultation and reporting requirements).
333. From the very time of the passage of the War Powers Resolution, these issues have spawned tremendous debate. See Richard Nixon, Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (1973). See also Turner, supra note 12; Ratner & Cole, supra note 12; Zablocki, supra note 12; Ides, supra note 7; Glennon, supra note 12; Spaid, supra note 12; Rolph, supra note 12; Ford, supra note 12; Rushkoff, supra note 12. Future success of recent efforts to repeal the War Powers Resolution may moot these questions. See The Peace Powers Act of 1995, S. 5, 104th Cong. (1995) (including a provision specifically repealing the War Powers Resolution, but mandating new consultation and reporting requirements).
334. From the very time of the passage of the War Powers Resolution, these issues have spawned tremendous debate. See Richard Nixon, Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (1973). See also Turner, supra note 12; Ratner & Cole, supra note 12; Zablocki, supra note 12; Ides, supra note 7; Glennon, supra note 12; Spaid, supra note 12; Rolph, supra note 12; Ford, supra note 12; Rushkoff, supra note 12. Future success of recent efforts to repeal the War Powers Resolution may moot these questions. See The Peace Powers Act of 1995, S. 5, 104th Cong. (1995) (including a provision specifically repealing the War Powers Resolution, but mandating new consultation and reporting requirements).
335. From the very time of the passage of the War Powers Resolution, these issues have spawned tremendous debate. See Richard Nixon, Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (1973). See also Turner, supra note 12; Ratner & Cole, supra note 12; Zablocki, supra note 12; Ides, supra note 7; Glennon, supra note 12; Spaid, supra note 12; Rolph, supra note 12; Ford, supra note 12; Rushkoff, supra note 12. Future success of recent efforts to repeal the War Powers Resolution may moot these questions. See The Peace Powers Act of 1995, S. 5, 104th Cong. (1995) (including a provision specifically repealing the War Powers Resolution, but mandating new consultation and reporting requirements).
336. From the very time of the passage of the War Powers Resolution, these issues have spawned tremendous debate. See Richard Nixon, Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (1973). See also Turner, supra note 12; Ratner & Cole, supra note 12; Zablocki, supra note 12; Ides, supra note 7; Glennon, supra note 12; Spaid, supra note 12; Rolph, supra note 12; Ford, supra note 12; Rushkoff, supra note 12. Future success of recent efforts to repeal the War Powers Resolution may moot these questions. See The Peace Powers Act of 1995, S. 5, 104th Cong. (1995) (including a provision specifically repealing the War Powers Resolution, but mandating new consultation and reporting requirements).
337. From the very time of the passage of the War Powers Resolution, these issues have spawned tremendous debate. See Richard Nixon, Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (1973). See also Turner, supra note 12; Ratner & Cole, supra note 12; Zablocki, supra note 12; Ides, supra note 7; Glennon, supra note 12; Spaid, supra note 12; Rolph, supra note 12; Ford, supra note 12; Rushkoff, supra note 12. Future success of recent efforts to repeal the War Powers Resolution may moot these questions. See The Peace Powers Act of 1995, S. 5, 104th Cong. (1995) (including a provision specifically repealing the War Powers Resolution, but mandating new consultation and reporting requirements).
338. From the very time of the passage of the War Powers Resolution, these issues have spawned tremendous debate. See Richard Nixon, Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (1973). See also Turner, supra note 12; Ratner & Cole, supra note 12; Zablocki, supra note 12; Ides, supra note 7; Glennon, supra note 12; Spaid, supra note 12; Rolph, supra note 12; Ford, supra note 12; Rushkoff, supra note 12. Future success of recent efforts to repeal the War Powers Resolution may moot these questions. See The Peace Powers Act of 1995, S. 5, 104th Cong. (1995) (including a provision specifically repealing the War Powers Resolution, but mandating new consultation and reporting requirements).
339. From the very time of the passage of the War Powers Resolution, these issues have spawned tremendous debate. See Richard Nixon, Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (1973). See also Turner, supra note 12; Ratner & Cole, supra note 12; Zablocki, supra note 12; Ides, supra note 7; Glennon, supra note 12; Spaid, supra note 12; Rolph, supra note 12; Ford, supra note 12; Rushkoff, supra note 12. Future success of recent efforts to repeal the War Powers Resolution may moot these questions. See The Peace Powers Act of 1995, S. 5, 104th Cong. (1995) (including a provision specifically repealing the War Powers Resolution, but mandating new consultation and reporting requirements).
340. From the very time of the passage of the War Powers Resolution, these issues have spawned tremendous debate. See Richard Nixon, Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (1973). See also Turner, supra note 12; Ratner & Cole, supra note 12; Zablocki, supra note 12; Ides, supra note 7; Glennon, supra note 12; Spaid, supra note 12; Rolph, supra note 12; Ford, supra note 12; Rushkoff, supra note 12. Future success of recent efforts to repeal the War Powers Resolution may moot these questions. See The Peace Powers Act of 1995, S. 5, 104th Cong. (1995) (including a provision specifically repealing the War Powers Resolution, but mandating new consultation and reporting requirements).
341. From the very time of the passage of the War Powers Resolution, these issues have spawned tremendous debate. See Richard Nixon, Veto of the War Powers Resolution, 5 PUB. PAPERS 893 (1973). See also Turner, supra note 12; Ratner & Cole, supra note 12; Zablocki, supra note 12; Ides, supra note 7; Glennon, supra note 12; Spaid, supra note 12; Rolph, supra note 12; Ford, supra note 12; Rushkoff, supra note 12. Future success of recent efforts to repeal the War Powers Resolution may moot these questions. See The Peace Powers Act of 1995, S. 5, 104th Cong. (1995) (including a provision specifically repealing the War Powers Resolution, but mandating new consultation and reporting requirements).
342. H.R. 3116, 103d Cong. § 8137A (1993) (prohibiting the use of U.S. funds to support U.S. combat forces when such forces were under "the command, operational control, or tactical control of foreign officers").
343. 140 CONG. REC. S182-83 (1994) (imposing barriers to providing U.S. armed forces as participants in United Nations peacekeeping operations).
344. S.5, 104th Cong. (1995) (repealing the War Powers Resolution but re-imposing equivalent consultation and reporting requirements, limiting the ability of the President to place U.S. armed forces under foreign command during peacekeeping operations, imposing a requirement on the President to submit a memorandum to the Congress addressing the constitutionality of any peacekeeping operation).
345. H.R. 7, 104th Cong. (1995) (imposing restrictions on the President's authority to place U.S. armed forces under foreign command during United Nations peacekeeping missions and imposing a requirement on the President to submit a memorandum to the Congress addressing the constitutionality of any peacekeeping operation).
346. H.R. 3308, 104th Cong. (1996) (imposing a requirement that the President report to Congress the placing of U.S. armed forces under foreign command during peacekeeping operations). See Major Richard Watson, Recent Congressional Attempts to Limit the Placement of United States Forces from Serving Under Foreign Command (Dec. 1996) (unpublished manuscript, copy on file with author).
347. Pub. L. No. 91-672, § 12, 84 Stat. 2055 (1971).
348. Authorization for the Use of Military Force Against Iraq, Pub. L. No. 102-1, § 2(c)(1)(C)(2), 105 Stat. 3, 4 (1991).
349. Both President Johnson and President Bush specifically indicated that they believed that these authorizations were not constitutionally required to justify their prosecuting the respective conflicts. See Glennon, supra note 12, at 22 (quoting Excerpts, supra note 268, at 26); Ratner & Cole, supra note 12, at 729.
350. ELY, supra note 9, at 50.
351. See Pub. L. No. 102-1, § 2(c)(1)(C)(2), 105 Stat. 3, 4 (1991).
352. See supra note 16.
353. 31 U.S.C. § 1301(a) (1994).
354. See Kate Stith, Congress' Power of the Purse, 97 YALE L.J. 1343 (1988).
355. See supra notes 170-262 and accompanying text.
356. Id.
357. See supra notes 313-329 and accompanying text.
358. Id.
359. Youngstown Sheet & Tube Co., 343 U.S. 579, 610-11 (1952).
360. 453 U.S. 654 (1981). For a discussion of the facts of this case, see supra notes 61-64 and accompanying text.
361. Youngstown, 343 U.S. 579.
362. Ratner & Cole, supra note 12, at 773.
363. Id.
364. Congress, the President, and the War Powers: Hearings Before the Subcomm. on Nat'l. Security & Scientific Developments of the House Comm. on Foreign Affairs, 91st Cong. 124, 126-27 (1970) (statement of John Norton Moore, Professor of Law, University of Virginia School of Law).
365. See Stromseth, supra note 276.
366. Turner, supra note 12, at 691-96 (emphasis added).
367. Pub. L. No. 93-248, 87 Stat. 555 (1973) (codified at 50 U.S.C. §§ 1541-1548 (1994)).
368. Id. (emphasis added).
369. The narrow majority in the Senate in favor of war authorization for the Persian Gulf War demonstrates the reality of congressional rejection of a presidential war policy. The comments of President Bush to the effect that he intended to take action regardless of whether Congress supported that action demonstrates the reality that a President might act contrary to the explicit will of Congress. See supra note 217 and accompanying text. In such a crisis, only the courts possess the power to impose a remedy that is consistent with the constitutional scheme of war power distribution. While it is true that Congress retains the power to take other extraordinary measures in response to presidential disregard of a refusal to authorize war - specifically a cut-off of funding or even impeachment - presuming the constitutionality of a presidential action until such a remedy is imposed contradicts the balance of war power established by the Constitution. In the case of a funding cut-off, the President would certainly exercise his veto power, thereby requiring a two-thirds majority of both houses for an override. Impeachment would require the same two-thirds majority in the House of Representatives. This means that a super majority would be needed to implement the rejection of a war authorization, which requires a simple majority of only one house of Congress. In short, if a simple majority of both houses is required to authorize war, why should a super majority be needed to refuse to authorize a war?
370. United States v. Robel, 389 U.S. 258, 264 (1968).
371. See supra notes 227-238 and accompanying text.
372. Dellums v. Bush, 752 F. Supp. 1141, 1144 n.5 (D.D.C. 1990).