Jack Little is a senior in the School of Foreign Service majoring in international politics and minoring in Spanish and philosophy and an Assistant Editor for GUULR
In 1973, Congress passed the War Powers Resolution (WPR), providing itself with new statutory powers to oversee the president’s use of the military.[1] The WPR requires the president to notify Congress within 48 hours of introducing armed forces “into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances.”[2] Absent certain extenuating circumstances, the president must then withdraw military forces within 60 days unless Congress has approved of the president’s action.[3] At first glance, this congressional approval requirement is simple and allows for judicial intervention given presidential noncompliance. However, courts have generally held that such cases involve political questions outside the judiciary’s jurisdiction and are thus nonjusticiable.[4] For example, an opinion in Campbell v. Clinton decided this issue was nonjusticiable.[5] As a result, consequential disagreements about the use of armed forces go unresolved and Congress cannot enforce its power under the WPR to approve the use of armed forces. In this essay, I will argue that although the Campbell opinion was properly decided as nonjusticiable, a simple but necessary amendment to the WPR would quash these concerns and make violations of the WPR’s congressional approval requirement justiciable.
In Campbell, Congressman Tom Campbell and twenty-five other members of the House argued that President Clinton violated the WPR by using armed forces in the Federal Republic of Yugoslavia without congressional approval.[6] Although the D.C. Circuit rejected the plaintiffs’ lawsuit primarily on lack of standing, Judge Silberman also opined that the case was not justiciable, as “the statutory threshold standard is not precise enough and too obviously calls for a political judgment.”[7] The threshold standard Judge Silberman refers to is whether armed forces face hostilities or imminent hostilities, which would trigger the congressional approval requirement under the WPR.[8]
Judge Silberman’s reasoning here invokes the political question doctrine as established in Baker v. Carr.[9] The political question doctrine refers to the principle that the judicial branch does not have jurisdiction over issues of an inherently political nature because of “a court’s impotence to correct that violation.”[10] In his majority opinion, Justice Brennan described six ways in which an issue could violate the political question doctrine, one of which is “a lack of judicially discoverable and manageable standards for resolving it.”[11] Issues that would require courts to create inherently political standards fall outside their jurisdiction. He also analyzed judicial precedence and found that the “lack of judicially discoverable standards … may impel reference to the political departments’ determination of dates of hostilities’ beginning and ending.”[12] In other words, courts cannot determine when hostilities have begun or ended because this requires an inherently political determination reserved for the legislative and executive branches of government. More intuitively, how could courts possibly decide whether armed forces face hostilities or imminent hostilities given their limited military and national security expertise? Therefore, Judge Silberman was correct that the standard triggering the congressional approval requirement under the WPR is nonjusticiable.
This is not to say, however, that courts can never decide on when hostilities have occurred. Indeed, Justice Brennan included the caveat in Baker that “clearly definable criteria for decision may be available. In such case the political question barrier falls away.”[13] It stands to reason, then, that the WPR’s congressional approval requirement could be justiciable if the statutory threshold were more precise than the presence of hostilities or imminent hostilities
I, therefore, propose a simple amendment to the WPR. As it currently stands, the president is required to submit a report to Congress within 48 hours of introducing the armed forces:
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation.[14]
In this way, the WPR requires notification of Congress in situations other than which armed forces face hostilities or imminent hostilities. These other two situations—those in which armed forces enter foreign territory or substantially increase their presence abroad—are justiciable, as they meet the “clearly definable criteria” caveat to the political question doctrine under Baker.[15] Courts could determine whether these standards have been met without making political determinations outside their jurisdiction. Congressional approval, however, is only required after 60 days of armed forces facing hostilities or imminent hostilities, not for the latter two situations.[16] Therefore, Congress could amend the WPR to require congressional approval in any of the three situations in which the president is already required to notify Congress of military action. Doing so would quash the justiciability concerns presented in the Campbell and Baker cases.[17]
More importantly, this proposal would benefit U.S. national security and democracy. First, allowing courts to intervene in issues related to the WPR’s congressional approval requirement would strengthen Congress’s ability to approve armed conflict. This would, in turn, improve the long-term national security strategy because “robust checks on presidential unilateralism help ensure that a chosen strategic path can withstand tough scrutiny.”[18] After all, the Constitution gives Congress the power to fund the military and declare war, distinct from the president’s power as commander in chief, implying a role for Congress in the country’s use of armed forces.[19] Moreover, the WPR’s purpose was to “insure that the collective judgment of both the Congress and the President will apply to the” use of armed forces.[20] This proposal would thus help fulfill this purpose and strengthen the constitutional system of checks and balances.
Second, this proposal would make congressional authorization under the WPR a legal issue, allowing the president to be held accountable outside solely political processes like elections or impeachment. These political processes cannot remedy situations in the short term, potentially leading to significant loss of life or harm to national security. Allowing Congress to hold the president accountable through the legal process, however, can more rapidly remedy violations of the WPR.[NR1]
I have shown why violations of the WPR’s congressional approval requirement are currently nonjusticiable according to the political question doctrine. However, the political question doctrine also includes a caveat for defining hostilities, in which precise criteria would make this a justiciable issue. The U.S. should therefore amend the WPR to take advantage of this caveat and improve the country’s national security and democracy.
[1] War Powers Resolution, 50 U.S.C. §§ 1541-1550 (2018).
[2] Id. §1543(a)(1)
[3] Id. §1544(b)
[4] Louis Fisher, “The Law: Litigating the War Power with Campbell v. Clinton,” Presidential Studies Quarterly 30, no. 3 (09, 2000): 567, https://www.proquest.com/scholarly-journals/law-litigating-war-power-with-campbell-v-clinton/docview/215688524/se-2?accountid=11091.
[5] Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000).
[6]Id..
[7] Id. at 24-25.
[8] War Powers Resolution, 50 U.S.C. § 1543(a)(1) (2018); War Powers Resolution, 50 U.S.C. § 1544(b) (2018).
[9] Baker v. Carr, 369 U.S. 186 (1962).
[10] Id. at 5.
[11] Id. at 12.
[12] Id. at 11.
[13] Id.
[14] War Powers Resolution, 50 U.S.C. § 1543(a)(1)-(a)(3) (2018).
[15] Baker v. Carr, 369 U.S. 186, 11 (1962).
[16] War Powers Resolution, 50 U.S.C. § 1544(b) (2018).
[17] Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000); Baker v. Carr, 369 U.S. 186 (1962).
[18] Jack Landman Goldsmith and Matthew C. Waxman, “The Legal Legacy of Light-Footprint Warfare,” The Washington Quarterly 39 (2016): 18, https://law.yale.edu/sites/default/files/goldsmith_and_waxman.pdf.
[19] U.S. Const. art. 1, § 8, cl. 11-12.
[20] War Powers Resolution, 50 U.S.C. § 1541(a) (2018).
Bibliography:
Fisher, Louis. “The Law: Litigating the War Power with Campbell v. Clinton.” Presidential
Studies Quarterly 30, no. 3 (09, 2000): 564-574. https://www.proquest.com/scholarly-journals/law-litigating-war-power-with-campbell-v-clinton/docview/215688524/se-2?accountid=11091.
Goldsmith, Jack Landman and Matthew C. Waxman. “The Legal Legacy of Light-Footprint Warfare.” The Washington Quarterly 39 (2016): 21-7. https://law.yale.edu/sites/default/files/goldsmith_and_waxman.pdf
