Bonus 158: The Supreme Court and the Long-Term Drift of the War Powers

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.

Welcome back to the weekly bonus content for “One First.” Although Monday’s regular newsletter will remain free for as long as I’m able to do this, I put much of the weekly bonus issue behind a paywall as an added incentive for those who are willing and able to support the work that goes into putting this newsletter together every week. I’m grateful to those of you who are already paid subscribers, and I hope that those of you who aren’t will consider a paid subscription if and when your circumstances permit.

Even though the Supreme Court handed down five rulings yesterday (including the major, and majorly controversial, 6-3 decision in Skrmetti, about which more on Monday), and is set to hand down still more rulings in cases argued this term tomorrow morning starting at 10 ET, I wanted to use this week’s bonus issue to take a step away from the Court of the moment—in light of President Trump’s beating of the war drums vis-à-vis Iran.

Commentators from across the political spectrum have understandably objected to even the possibility that the President might take the United States into an armed conflict without any authorization from Congress or even the patina of self-defense—a context in which the President would have at least a somewhat stronger claim to inherent constitutional authority. And a Congress that seems more focused on oversight of the Biden administration than on exerting any institutional authority over the White House’s current occupant is, yet again, doing nothing to assert even a modicum of its constitutional control over the war powers.

There’s no question that presidents of both parties, for decades, have claimed ever-broader authorities to use military force either on their own authority or based upon increasingly dubious interpretations of statutes purporting to authorize it (or both). Indeed, for as much as John Hart Ely is known for his book Democracy and Distrust, I’ve always found his 1993 monograph on the drift of war-making authority during Vietnam—War and Responsibility—perhaps the single-best book that’s ever been written about the war powers.

But whereas Ely is unsparing in his criticism of Congress, his book is also a powerful reminder that it is, and always has been, a tad bit misleading to pitch this entire narrative in terms of the relationship between two of the branches of the federal government. The reality is that the Supreme Court bears some responsibility for this problem as well—not, it should be said, for starting it, but for a series of rulings that have made it that much harder for anyone, Congress included, to successfully contest unilateral assertions of presidential war power. If President Trump carries through on his bluster and actually does lead the United States into a shooting war with Iran, it will be more than a little difficult to use the law to stop him. That reality is not a structural failure baked into the Constitution, though; it’s a byproduct of highly debatable (and relatively modern) judicial interpretations thereof.

For those who are not paid subscribers, we’ll be back on Monday (if not sooner) with our regular coverage of the Court. For those who are, please read on.

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Closing the Front Door:
War and Justiciability

In a coda to his opinion for the Supreme Court in Boumediene v. Bush (the 2008 Guantánamo habeas case), Justice Kennedy offered a curious reflection on judicial review of the government’s war powers. In his words, “[b]ecause our Nation’s past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury.” As a historical claim, Justice Kennedy’s rhetorical flourish was deeply flawed. Up until Vietnam, federal courts routinely reviewed a wide range of questions arising from military operations during wartime, including, among others: the legality of particular maritime captures during the “Quasi-War” with France; the validity of the naval blockade imposed by President Lincoln during the Civil War; the constitutionality of military commissions convened by President Roosevelt to try Nazi saboteurs during World War II; and, perhaps most famously, the propriety of President Truman’s seizure of steel mills during the Korean War. Indeed, the most significant military power that Congress delegated to the President in the early years of the Republic—the power to use the military during domestic emergencies—was, in the most controversial cases, expressly conditioned on judicial review (and pre-authorization). These assertions of power were not just justiciable; judicial review was a prerequisite.

Instead, Justice Kennedy was presumably alluding to the array of decisions that began during the Vietnam War, in which federal courts (and the Supreme Court, in particular) relied upon a host of justiciability rules—especially Article III standing and the political question doctrine—to avoid settling inter-branch disputes over the constitutionality of particular uses of military force. (And disputes there were; although President Johnson relied heavily upon the Gulf of Tonkin Resolution to justify the dramatic ramping up of combat operations in Southeast Asia, U.S. activities quickly took on a scale and scope that far exceeded what Congress could ever have been said to have authorized in August 1964.)

As those questions percolated through the federal courts, between 1965 and 1974, the Supreme Court used every way imaginable to avoid deciding on the merits any fundamental questions about the legality or scope of the Vietnam War, even as public and academic debate on those questions intensified. As one academic commentator has written in a comprehensive survey of those rulings,

Avoiding decisions on the merits of justiciable Vietnam issues presented by litigants with requisite standing through cryptic silence would be an ignoble abdication of the Court’s constitutional responsibilities, whether or not a judgment on the merits would have sustained or invalidated the Government’s prosecution of the war. The Court had frequently declared its power and duty to adjudicate federal questions on the merits, but it withheld judgment on the Vietnam cases. The Court was willing to approve the war by silence but would neither confirm nor condemn that result by opinion for or against the Government. Although concealed by the privilege of discretionary review, the Court’s apparent failure of courage was inexcusable.

The lower federal courts followed suit in similarly Delphic decisions. In dozens of suits, federal judges relied on two different procedural barriers to justify not reaching the merits of a wide range of litigants’ challenges to the constitutionality of the war; the draft; and a host of other Vietnam-era measures. In one class of cases, these courts held that the plaintiffs lacked “standing”; they could not prove that the allegedly unlawful government action they sought to challenge injured or would injure them specifically. In another class of cases, courts relied on the “political question” doctrine, holding that the Constitution committed disputes over the scope of whatever authorization Congress had (or had not) provided for military force in Southeast Asia to the political branches, not to the courts.

To be sure, the Supreme Court during the same period heard various disputes related to the war, several of which are now part of our constitutional canon and historical consciousness. For example, in New York Times Co. v. United States (the Pentagon Papers case), the Court famously rejected the government’s effort to enjoin the New York Times and the Washington Post from printing the Pentagon Papers. In Cohen v. California, the Court threw out the conviction of an anti-war protestor who was prosecuted for wearing a “Fuck the Draft” jacket. In United States v. O’Brien, the Court upheld a federal law that made it a crime to burn a draft card. And in Clay v. United States, the Court threw out the conviction of Muhammad Ali for refusing to report for induction, holding the government failed to demonstrate that Ali’s application for conscientious objector status was properly denied.

Every time, however, that a litigant sought to contest the substance of U.S. military or paramilitary activities in Southeast Asia, or the means by which soldiers were conscripted to participate in those operations, the Court ducked and declined to review lower court decisions, virtually all of which concluded that such disputes were not justiciable. For a time, the Supreme Court’s repeated avoidance provoked dissents from as many as three of the nine Justices, William O. Douglas foremost among them.¹ Those dissents, however, had no visible effect on the Court’s majority, which only appeared to harden against intervention as the war dragged on. The result was to radically ratchet up the bar litigants had to clear for persuading federal courts that they could review separation-of-powers questions arising out of exercises of military force—and not just individual rights questions—even as the war became ever more detached from even the thinnest reed of statutory support.

Nor did things change in the first years—or decades—after Vietnam. An especially illustrative case in point is Campbell v. Clinton, where three D.C. Circuit judges relied on a combination of Article III standing and the political question doctrine to avoid reaching the merits of a claim that nineteen members of Congress brought challenging the constitutionality of U.S. airstrikes over Kosovo. As Campbell illustrates, from the end of the Vietnam War onwards, courts faced with lawsuits challenging overseas military operations on separation of powers grounds have consistently relied on the same two doctrines—standing and the political question doctrine—to avoid reaching, let alone resolving, such thorny constitutional questions. The result has been not to sustain the President’s ability to use military force in circumstances in which neither a statute nor the Constitution authorizes it, but rather to leave the President’s power in such a case to be resolved only through the practicalities of the political process—not the formalities of litigation.

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Closing the Back Door:
Chadha and the Legislative Veto

Of course, Congress tried to make it easier for the legislature to avail itself of the political process to rein in unilateral presidential war-making—especially in the War Powers Resolution of 1973, which it enacted over President Nixon’s veto. But for three different reasons (two of which were obvious at the time; one of which the Supreme Court imposed later), the War Powers Resolution has proven all-but useless in the 52 years it’s been on the books.

The first problem with the WPR, as Ely (among countless others) has pointed out, is that the statute’s principal mechanism for constraining unilateral presidential war-making—the “60-day clock”—can serve, at least effectively, as authorization for unilateral uses of force during those 60 days. After all, the way the War Powers Resolution works, the President’s introduction of armed forces into “hostilities” doesn’t become per se unlawful until the clock has run (or until Congress passes a termination resolution, but more on why that is no longer viable below). Thus, although the WPR would be effective in undercutting presidential claims to legal authority for long-term conflicts like the war in Vietnam, it does nothing, by itself, to affirmatively foreclose authority for more transitory uses of force.

The second, and related problem is that the WPR’s trigger—“hostilities”—has itself proven to be somewhat malleable, as evidenced in, for instance, the Obama administration’s rather contested arguments about the United States’ uses of military force in and around Libya in 2011. In a context in which Congress had to know that presidents would exploit every interpretive loophole and find every possible basis for arguing that uses of force either didn’t rise to the WPR’s threshold or were in self-defense, Congress wrote a maddeningly ambiguous statute—knowing, as it must have by 1973, that the Supreme Court would be reluctant to resolve all but the clearest separation-of-powers disputes in war powers cases.

And that brings us to third problem, and back to the Court: Arguably, the most powerful mechanism the WPR created was Congress’s power, “at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States,” to order the removal of such forces via a concurrent resolution (i.e., a measure requiring a majority vote in both chambers, but not presentment to the President). Aggressive use of this provision could easily have mitigated the first two problems described above, since Congress could immediately vote to remove any troops a President introduced into overseas combat situations.

The issue here is the Supreme Court’s 1983 ruling in INS v. Chadha, in which a majority of the Court held that such “legislative vetoes” violate Article I, Section 7 of the Constitution—which requires both bicameralism and presentment for any exercises of legislative power for which the Constitution does not expressly provide otherwise. (My favorite Justice White opinion has always been his Chadha dissent.)

Congress is well aware of the Court’s ruling in Chadha; as I’ve explained elsewhere, it expressly amended the National Emergencies Act of 1976 in direct response to Chadha (albeit in a way that was stunningly self-defeating). But in the context of the War Powers Resolution, Congress’s reaction to Chadha has been … silence. Stripped of their single most effective way to exercise direct political control over unilateral uses of military force by the President, four decades of elected members of Congress have responded by burying their heads in the sand.²

The upshot of the justiciability rulings detailed above and the demise of the legislative veto is that the only inherently viable legal pathway toward repudiating unilateral uses of military force by the President is for Congress to pass new legislation expressly repudiating a unilateral use of force by the President in real-time—legislation that would, presumably, not only require veto-proof supermajorities in both chambers (good luck!),³ but that would be working its way through Congress at the worst possible political moment, i.e., when we’re in the middle of the underlying use of force (when there will be enormous pressure on the Members to not undermine the troops). To me, at least, that seems like a remarkably inadequate check.

The point is not, of course, that Article III constraints on the powers of the federal courts should somehow give way in the context of separation-of-powers questions relating to the war powers. Plaintiffs still need to have standing, and the underlying dispute still needs to be one that is capable of judicial resolution. But the fact that it isn’t self-evident that unilateral war-making by the President would present a justiciable case or controversy is something that would’ve come as quite a surprise to just about anyone as recently as the 1950s, as would the inability of Congress to pursue other tools for reining in unlawful military action by the Chief Executive.

Instead, the principal checks on the President’s unilateral use of military force will continue to be nothing more and nothing less than the political costs of its exercise—or the lack thereof. In some cases, perhaps even the current one, that might be enough. But for much of American history, it didn’t have to be. And the better reading of the Constitution, in my own view, to say nothing of common sense, is that it shouldn’t have to be.

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We’ll be back (no later than) Monday with our next regular issue of “One First.” Until then, thank you for your continued support of this newsletter—and I hope you and yours are staying safe out there.

1. Indeed, the gravamen of the colorful and remarkable August 1973 dispute between Justice Marshall and Justice Douglas in Holtzman v. Schlesinger (which is the focus of the Introduction to The Shadow Docket) was the effect of a funding cut-off Congress had passed with respect to President Nixon’s unauthorized bombing of Cambodia. Congress had provided that funds for such operations would expire on August 15. A district court had enjoined pre-August 15 operations on separation-of-powers grounds; and the Second Circuit had stayed that ruling. Marshall refused to vacate the stay; Douglas then did so himself; and Marshall issued a stay of his own (with the telephonic consent of the other seven justices), so the bombing continued. When the Second Circuit decided the Holtzman appeal the following week, it held, true to form, that the entire dispute presented a non-justiciable political question.

2. Congress also retains the power of the purse, of course. And the Constitution’s one legislative sunset is for military appropriations—which must be made on an annual basis. But the power of the purse only works either (1) prospectively (such that no new funds can be directed toward operations Congress seeks to repudiate); or (2) with veto-proof supermajorities (which can impose an immediate cut-off on already-appropriated funds). Neither of those scenarios is likely to be effective in stopping short-term unilateral uses of force by President Trump.

3. Since President Obama came to office in 2009, there have been 35 presidential vetoes, and exactly two successful veto overrides.