The common narrative is that Congress has ceded its constitutional control over war powers to the President. But the Supreme Court also bears some responsibility for that deeply troubling realignment.
This matter continues to amaze me. An attack on another country, even in self-defense, is an act of war that should require prior congressional authorization, unless exigent circumstances apply such that there isn't time to get prior congressional authorization, in which case congressional authorization for continued military action should be required as soon as possible. It seems to me it ought to be that simple.
Excellent overview. I took Ely’s course on National Security Law while he was a visitor at GULC and you have perfectly captured his argument. What’s missing is connecting this to the expansion of the “unwritten” constitution by otherwise self-professed adherents of the original text and plain language of the document itself.
In view of recent events..... Would you consider republishing this piece in its entirety outside the paywall? I've wanted to share it a half-dozen times in the last 12 hours
The President can do as he pleases because the biggest check on him, that is Congress, specifically the House, has been neutralized. The American people have significantly less to say about their own government than any other industrialized democracy. 435 members cannot “represent” 330 million people. Moreover, 435 does not come close to allowing “Representatives shall be apportioned among the several States according to their respective numbers”. So we find ourselves in the position that we cling to the Electoral College as if it were sacred scripture and allow the People’s voice to rot thereby rendering a critical part of the system of checks and balances to be worthless. This website is a paper which describes and documents how this came about.
To date, this is the most informative article you've written in terms of what I've been doing to catch myself up on the powers, or lack of, that the SCOTUS holds. I guess I never realized how many times the court has kicked the ball down the field. Unfortunately, it appears to me, there's no one there to pick up the ball and put it back in play. It's as if the ball being left out of bounds lends permission to play sans rules.
Again, thank you for your informative article, though you've expanded my homework once more.
I really appreciate this discussion. It has helped me understand much that was not understandable to me while I was living through 1965-1973, including one year in Vietnam, and why we are where we are now. I’m not happy about it, but I understand it better. I’m going to read Ely’s book.
This essay is as frustrating as it timely. Many of us would like a different result. Sadly Professor Vladeck's well thought out conclusions are no surprise. The gift he has given us is the ability to understand where we are and how we got there and enable us not to react in knee jerk fashion to the forthcoming clamor on social media.
"Neither of those scenarios is likely to be effective in stopping short-term unilateral uses of force by President Trump."
So we have a political problem, polarization, which means that Congress won't as a matter of course stop unconstitutional executive action. Congress could, and it won't, and therefore POTUS effectively has a lot of extra-constitutional power.
And that's true. But, I don't see how we can possibly take that into account in deciding to have 9 unelected judges who know nothing about military strategy or warmaking to come in and stop it. Because those 9 people are just as unelected, just as uninformed and incompetent about warmaking, and just as ill suited to dictate war policy whether or not Congress is dysfunctional.
That's WHY Marshall and the other 7 justices stopped Douglas. Douglas' action was crazy. What if some American troops had been killed because we were unable to bomb the supplies being brought in from Cambodia? If something like that happens even once, it's literally the end of judicial review in America. The public would not stand for it. Whatever ridiculous jurisdiction stripping bill necessary would become immensely popular, it would be named the Save The Lives Of American Servicemen From Clueless Judges Act, and it would pass and get signed, and we'd have to live with the consequences.
And I say that as someone who thinks the bombing of Cambodia was just as outrageous as Douglas thought it was. Still, the only people who have the legitimacy to supervise and prevent military actions are elected officials. If the elected officials don't do it, there's nothing the courts can or should do.
I should add one more thing-- if having courts enjoin the military is such a good idea, why do other countries not do this? I am not aware of any major military power that allows its courts to enter enforceable injunctions to prevent military attacks. Indeed, I suspect the prevailing reaction would be that this would be nuts.
At bottom, yeah, it sucks that the Constitution's distribution of war power to Congress is being ignored. It sucks that Presidents act like Kings when it comes to the Commander in Chief power. It sucks that all this power is concentrated in the hands of one person. But 9 unelected judges just have no legitimacy to put a stop to any of this. They have to stay out. They were right to stay out in Vietnam, and they are right to continue staying out. Better to preserve the Court's legitimacy to do judicial review in all the domestic matters where it is needed.
Forgive me, I may be reading your reply different than you intend. Are you saying that the SCOTUS should only rule on domestic policy differences? Wouldn't that take our checks and balances down to two in regards to anything dealing with international intrest?
So I'm saying that SCOTUS can't issue any ruling that tells the military that they can't launch an attack on a foreign belligerent. In other words, even though I probably completely agree with Prof. Vladeck on the meaning of the Declare War clause, it is in fact not justiciable. And Schlesinger v. Holtzman (the Cambodia bombing injunction) is just the perfect example of why-- if the Court had issued an injunction that resulted in the death of American troops due to a military offensive by the North Vietnamese or the NLF that was enabled by Cambodian supply lines, that's the end of judicial review.
But there's plenty of "international" issues, and even wartime issues, that the federal courts can review. They simply can never issue an effective order preventing the President from ordering warfare against a foreign belligerent.
This matter continues to amaze me. An attack on another country, even in self-defense, is an act of war that should require prior congressional authorization, unless exigent circumstances apply such that there isn't time to get prior congressional authorization, in which case congressional authorization for continued military action should be required as soon as possible. It seems to me it ought to be that simple.
I always thought that Truman's pursuit of the Korean War was the beginning of the Executive's usurpation of Congress' authority. Was it?
Excellent overview. I took Ely’s course on National Security Law while he was a visitor at GULC and you have perfectly captured his argument. What’s missing is connecting this to the expansion of the “unwritten” constitution by otherwise self-professed adherents of the original text and plain language of the document itself.
In view of recent events..... Would you consider republishing this piece in its entirety outside the paywall? I've wanted to share it a half-dozen times in the last 12 hours
Thanks for the suggestion. I’ve removed the paywall, so the post should be shareable in its current form.
The President can do as he pleases because the biggest check on him, that is Congress, specifically the House, has been neutralized. The American people have significantly less to say about their own government than any other industrialized democracy. 435 members cannot “represent” 330 million people. Moreover, 435 does not come close to allowing “Representatives shall be apportioned among the several States according to their respective numbers”. So we find ourselves in the position that we cling to the Electoral College as if it were sacred scripture and allow the People’s voice to rot thereby rendering a critical part of the system of checks and balances to be worthless. This website is a paper which describes and documents how this came about.
https://www.twoyearstodemocracy.com/
To date, this is the most informative article you've written in terms of what I've been doing to catch myself up on the powers, or lack of, that the SCOTUS holds. I guess I never realized how many times the court has kicked the ball down the field. Unfortunately, it appears to me, there's no one there to pick up the ball and put it back in play. It's as if the ball being left out of bounds lends permission to play sans rules.
Again, thank you for your informative article, though you've expanded my homework once more.
I really appreciate this discussion. It has helped me understand much that was not understandable to me while I was living through 1965-1973, including one year in Vietnam, and why we are where we are now. I’m not happy about it, but I understand it better. I’m going to read Ely’s book.
Ditto, and with Ely's book as well.
This essay is as frustrating as it timely. Many of us would like a different result. Sadly Professor Vladeck's well thought out conclusions are no surprise. The gift he has given us is the ability to understand where we are and how we got there and enable us not to react in knee jerk fashion to the forthcoming clamor on social media.
"Neither of those scenarios is likely to be effective in stopping short-term unilateral uses of force by President Trump."
So we have a political problem, polarization, which means that Congress won't as a matter of course stop unconstitutional executive action. Congress could, and it won't, and therefore POTUS effectively has a lot of extra-constitutional power.
And that's true. But, I don't see how we can possibly take that into account in deciding to have 9 unelected judges who know nothing about military strategy or warmaking to come in and stop it. Because those 9 people are just as unelected, just as uninformed and incompetent about warmaking, and just as ill suited to dictate war policy whether or not Congress is dysfunctional.
That's WHY Marshall and the other 7 justices stopped Douglas. Douglas' action was crazy. What if some American troops had been killed because we were unable to bomb the supplies being brought in from Cambodia? If something like that happens even once, it's literally the end of judicial review in America. The public would not stand for it. Whatever ridiculous jurisdiction stripping bill necessary would become immensely popular, it would be named the Save The Lives Of American Servicemen From Clueless Judges Act, and it would pass and get signed, and we'd have to live with the consequences.
And I say that as someone who thinks the bombing of Cambodia was just as outrageous as Douglas thought it was. Still, the only people who have the legitimacy to supervise and prevent military actions are elected officials. If the elected officials don't do it, there's nothing the courts can or should do.
I should add one more thing-- if having courts enjoin the military is such a good idea, why do other countries not do this? I am not aware of any major military power that allows its courts to enter enforceable injunctions to prevent military attacks. Indeed, I suspect the prevailing reaction would be that this would be nuts.
At bottom, yeah, it sucks that the Constitution's distribution of war power to Congress is being ignored. It sucks that Presidents act like Kings when it comes to the Commander in Chief power. It sucks that all this power is concentrated in the hands of one person. But 9 unelected judges just have no legitimacy to put a stop to any of this. They have to stay out. They were right to stay out in Vietnam, and they are right to continue staying out. Better to preserve the Court's legitimacy to do judicial review in all the domestic matters where it is needed.
Forgive me, I may be reading your reply different than you intend. Are you saying that the SCOTUS should only rule on domestic policy differences? Wouldn't that take our checks and balances down to two in regards to anything dealing with international intrest?
So I'm saying that SCOTUS can't issue any ruling that tells the military that they can't launch an attack on a foreign belligerent. In other words, even though I probably completely agree with Prof. Vladeck on the meaning of the Declare War clause, it is in fact not justiciable. And Schlesinger v. Holtzman (the Cambodia bombing injunction) is just the perfect example of why-- if the Court had issued an injunction that resulted in the death of American troops due to a military offensive by the North Vietnamese or the NLF that was enabled by Cambodian supply lines, that's the end of judicial review.
But there's plenty of "international" issues, and even wartime issues, that the federal courts can review. They simply can never issue an effective order preventing the President from ordering warfare against a foreign belligerent.