Judicial Rulings on the War Power

Order Code RL30282

CRS Report for Congress

Received through the CRS Web

Judicial Rulings on the

War Power

August 18, 1999

Louis Fisher

Senior Specialist in Separation of Powers

Government and Finance Division

Congressional Research Service ˜ The Library of Congress

ABSTRACT

This report reviews the history of judicial rulings on the war power, starting with what the

framers intended for “defensive actions” by the President and moving forward to summarize

the principal Supreme Court and lower court decisions. For additional analysis, see Richard

F. Grimmett, “War Powers Resolution: Presidential Compliance,” Congressional Research

Service Issue Brief IB81050 (July 2, 1999) and Richard F. Grimmett, “Instances of Use of

United States Armed Forces Abroad, 1798-1998,” Congressional Research Service Report

98-881F (October 27, 1998). This report provides background data and will not be updated

unless events warrant.

Judicial Rulings on the

War Power

Summary

The Constitution empowers Congress to “declare war,” but there is broad

disagreement on the scope of presidential power to conduct undeclared wars. In

addition to wars that have been declared or specifically authorized by Congress,

Presidents have initiated a number of other military operations without either seeking

or obtaining congressional approval. This report analyzes the disputes over the war

power that have been submitted to the courts.

Dozens of war-power issues have been litigated over the past two centuries.

Although federal courts have generally avoided most of them by relying on various

threshold tests (such as standing, mootness, ripeness, and political questions), it is a

misconception to say that the judiciary generally upholds presidential action. On a

number of occasions the courts have struck down unilateral presidential actions,

challenged and rejected ambitious theories of executive power, and upheld the

prerogatives of Congress.

Of the cases that the courts have decided to sidestep, it is usually the case that

Congress—as an institution—has failed to confront the President with restrictive

legislation. Instead, a handful of lawmakers go to the courts to seek relief. Under

these conditions, the courts have made it plain that the judiciary will not referee a case

unless the two branches are in irresolute conflict and the entire Congress has

exhausted all the institutional remedies available to it.

Contents

1. Defensive Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

2. To Declare and Authorize War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

3. A Statute Trumps a Presidential Proclamation . . . . . . . . . . . . . . . . . . . . 3

4. The Smith Decision in 1806 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

5. The Civil War . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

6. Reconstruction Period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

7. The Chinese Exclusion Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

8. Protecting Life and Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

9. The Power of Dicta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

10. World War II Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

11. The Steel Seizure Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

12. The Vietnam Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

13. Does an Appropriation “Authorize” Policy? . . . . . . . . . . . . . . . . . . . 13

14. Cases Brought by Members . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

15. Member Suits (1982-99) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

16. Conclusions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Judicial Rulings on the

War Power

This report provides a brief history of judicial rulings on the war power. These

cases illustrate central themes of executive-legislative relations, the power of the

purse, and the difficulty of litigating many of these issues in court.

Although the Constitution empowers Congress to “declare war,” a declaration

of war has been used in only five military conflicts: the War of 1812, the Mexican War

of 1846, the Spanish-American War of 1898, World War I, and World War II. On

a number of occasions, Congress has chosen to authorize war instead of declaring

war. Particularly in the period since 1950, Presidents have resorted to military

operations against other countries without seeking either a declaration or an

authorization from Congress.

Some studies conclude that federal courts, over the years, have generally

supported independent presidential use of the war power. For example, a recent book

states that although the pattern of the courts is to “lie back” rather than rule on

questions of the war power, “when they are forced to rule, they usually uphold

presidential action.”1 However, the record is much more complex, with courts on a

number of occasions striking down unilateral presidential actions, challenging

ambitious theories of executive power, and upholding the prerogatives of Congress.

1. Defensive Actions

The Framers recognized that the President possessed an implied authority to use

military force for certain defensive actions. When the draft of the Constitution

empowered Congress to “make war,” it was objected that legislative proceedings

“were too slow” for the safety of the country in the event of an emergency. James

Madison and Elbridge Gerry moved to insert “declare” for “make,” leaving to the

President “the power to repel sudden attacks.”2

Reactions to the Madison-Gerry amendment emphasize the narrow grant of

authority to the President. Pierce Butler wanted to give the President the power to

make war, arguing that he “will have all the requisite qualities, and will not make war

but when the Nation will support it.” Roger Sherman objected: “The Executive shd.

be able to repel and not to commence war.” Gerry said he “never expected to hear

in a republic a motion to empower the Executive alone to declare war.” George

1

Martin S. Sheffer, The Judicial Development of Presidential War Powers x-xi (1999).

2

2 Records of the Federal Convention of 1787, at 318-19 (Max Farrand ed. 1937).

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Mason spoke “agst giving the power of war to the Executive, because not <safely>

to be trusted with it; . . . He was for clogging rather than facilitating war.”3

This line between defensive and offensive wars was understood by the early

Administrations. During the presidency of George Washington, Congress passed a

number of statutes to protect inhabitants of the frontiers from hostile actions by

Indians. Members of the Washington Administration realized that military operations

against Indians were limited to defensive actions. Secretary of War Henry Knox

wrote to William Blount, governor of the Southwest Territory, on October 9, 1792:

“The Congress which possess the power of declaring War will assemble on the 5th of

next Month—Until their judgments shall be made known it seems essential to confine

all your operations to defensive measures.”4 Writing in 1793, President Washington

instructed executive officials that “no offensive expedition of importance can be

undertaken until after [Congress] have deliberated upon the subject, and authorized

such a measure.”5

In 1801, President Thomas Jefferson sent a small squadron of frigates to the

Mediterranean to protect against possible attacks by the Barbary powers. He told

Congress that he was “unauthorized by the Constitution, without the sanction of

Congress, to go beyond the line of defense.” It was up to Congress to authorize

“measures of offense also.”6

After Congress had declared war against England in the War of 1812, President

James Madison called on the state militia pursuant to statutory authority. A legal

dispute reached the Supreme Court in 1827. The Court said there could be no

question that the legislation gave the President the right to call up state militia to repel

invasion from abroad or to suppress internal insurrections. The Court concluded that

“the authority to decide whether the exigency has arisen, belongs exclusively to the

president, and that his decision is conclusive upon all other persons.” Martin v. Mott,

25 U.S. (12 Wheat.) 19, 28 (1827).

This exclusive, unreviewable presidential judgment depended upon authority

expressly delegated by Congress. It was a power “confided by congress to the

president.” The power granted by Congress was limited to cases of “actual invasion,

or of imminent danger of invasion.” The power was to be exercised “upon sudden

emergencies, upon great occasions of state, and under circumstances which may be

vital to the existence of the Union.” Id.

2. To Declare and Authorize War

Although the constitutional text only empowers Congress to declare war, it was

well understood by the Framers that governments can make war without a formal

declaration. The first major war that involved the United States—the “quasi war”

3

Id. at 319.

4

4 The Territorial Papers of the United States 195 (Clarence Edwin Carter ed. 1936).

5

33 The Writings of George Washington 73 (John C. Fitzpatrick ed. 1939).

6

1 Messages and Papers of the Presidents 315 (Richardson ed.).

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against France from 1798 to 1800—was not declared. It was authorized, however,

by a number of statutes. The war against France came to the Supreme Court in two

cases decided in 1800 and 1801, both of which acknowledged that Congress can

resort to authorization rather than declaration. In the first case, Justice Washington

said that war could be of two forms: (1) “declared in form, . . . solemn, and . . . of the

perfect kind” and (2) “imperfect” (undeclared but authorized). Bas v. Tingy, 4 Dall.

(4 U.S.) 37, 40 (1800). To Justice Chase, Congress “is empowered to declare a

general war, or congress may wage a limited war; limited in place, in objects, and in

time.” In his judgment, the war against France was “a limited, partial war. Congress

has not declared war in general terms; but congress has authorized hostilities on the

high seas by certain persons in certain cases. There is no authority given to commit

hostilities on land.” Id. at 43. Justice Paterson spoke of an “imperfect war.” Id. at

45.

A year later, Chief Justice John Marshall wrote the opinion of the Court in the

second case on the undeclared war with France. He said that the “whole powers of

war being, by the constitution of the United States, vested in congress, the acts of that

body can alone be resorted to as our guides in this inquiry.” Congress may authorize

“general hostilities, in which case the general laws of war apply to our situation; or

partial hostilities, in which case the laws of war, so far as they actually apply to our

situation, must be noticed.” Talbot v. Seeman, 5 U.S. (1 Cr.) 1, 28 (1801).

These cases reject the proposition that the power of Congress over war is limited

to declared wars and that Presidents may use independent authority to engage in

military actions for undeclared wars. Congress had jurisdiction over both declared

and authorized wars. As Chief Justice Marshall noted, the “whole powers of war”

were vested in Congress, and legislative acts were the sole guides to judicial inquiry.

3. A Statute Trumps a Presidential Proclamation

A third case from the war against France raised another issue: when Congress

has legislated military policy, can Presidents exceed those boundaries by issuing

proclamations and other executive decrees? Part of the legislation enacted from 1798

to 1800 authorized the President to seize vessels sailing to French ports. President

John Adams issued an order directing American ships to capture vessels sailing to or

from French ports. Captain George Little followed Adams’ order by seizing a Danish

ship sailing from a French port. He was subsequently sued for damages.

When Chief Justice Marshall received this case, his “first bias” was to support

Captain Little. Although the instructions from President Adams “could not give a

right, they might yet excuse [a military officer] from damages. Military men were

expected to follow the orders of their superiors. Upon further reflection, Marshall

decided that Captain Little was liable for damages: “I have been convinced that I was

mistaken, and I have receded from this first opinion. I acquiesce in that of my

brethren, which is, that the instructions [by Adams] cannot change the nature of the

transaction, or legalize an act which, without those instructions, would have been a

plain trespass.” Little v. Barreme, 2 Cr. (6 U.S.) 170, 179 (1804).

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In short, when Congress establishes national policy for military operations, the

President, in his capacity as commander in chief, must execute statutory policy, not

independent and inconsistent executive initiatives.

4. The Smith Decision in 1806

In 1794, Congress passed the Neutrality Act to prohibit American citizens from

providing assistance to any military expedition against “the territory or dominions of

any foreign prince or state with whom the United States are at peace.” 1 Stat. 384,

sec. 5. A circuit court in 1806 reviewed the indictment of Colonel William S. Smith

for engaging in military actions against Spain. He claimed that his military enterprise

“was begun, prepared, and set on foot with the knowledge and approbation of the

executive department of our government.” United States v. Smith, 27 Fed. Cas.

1192, 1229 (C.C.N.Y. 1806) (No. 16,342).

The court repudiated Smith’s claim that a President or his assistants could

somehow authorize military adventures by private citizens after Congress had

specifically forbidden such actions. The court said that the Neutrality Act was

“declaratory of the law of nations; and besides, every species of private and

unauthorized hostilities is inconsistent with the principles of the social compact, and

the very nature, scope, and end of civil government.” Id. at 1229. Executive

officials—even the President—could not waive statutory provisions. “The President

of the United States cannot control the statute, nor dispense with its execution, and

still less can he authorize a person to do what the law forbids.” Id. at 1230. The

court also noted: “Does [the President] possess the power of making war? That

power is exclusively vested in congress.” Id. A distinction was drawn between the

President’s authority to resist invasion (a defensive power) and military actions taken

against foreign countries (an offensive power). There was a “manifest distinction”

between going to war with a nation at peace and responding to an actual invasion: “In

the former case, it is the exclusive province of congress to change a state of peace

into a state of war.” Id.

5. The Civil War

In a separate, unique category are the actions taken by President Lincoln during

the Civil War. Some accounts describe his conduct as dictatorial, but in fact he

recognized that his actions—even emergency actions—required the support of

Congress through the regular legislative process.

In April 1861, with Congress in recess, Lincoln issued proclamations calling

forth the state militia, suspending the writ of habeas corpus, and placing a blockade

on the rebellious states. The blockade was upheld by the Supreme Court in 1863.

Justice Grier said for the Court that the President as commander in chief “has no

power to initiate or declare a war either against a foreign nation or a domestic State,”

but in the event of foreign invasion the President was not only authorized “but bound

to resist force by force. He does not initiate the war, but is bound to accept the

challenge without waiting for any special legislative authority.” The President had no

choice but to meet the crisis in the shape it presented itself “without waiting for

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Congress to baptize it with a name; and no name given to it by him or them could

change the fact.” The Prize Cases, 67 U.S. 635, 668-69 (1863).

Unlike some contemporary Presidents (Truman, Bush, and Clinton), Lincoln

never claimed that he possessed full authority to act as he did. In fact, he admitted

to exceeding the constitutional boundaries established for the President and therefore

needed the sanction of Congress. He told Congress that his actions, “whether strictly

legal or not, were ventured upon under what appeared to be a popular demand and

a public necessity, trusting then, as now, that Congress would readily ratify them.”7

Lincoln used the “war power,” which included not only his powers under Article II

but those of Congress under Article I. He believed that his actions, especially

suspending the writ of habeas corpus, were not “beyond the constitutional

competency of Congress.”8 Congress debated his request at length, with Members

supporting the President on the explicit assumption that his acts were illegal.9 The

statute enacted by Congress legalized Lincoln’s actions “as if they had been issued and

done under the previous express authority and direction of the Congress of the United

States.”10

Lincoln’s deference to Congress did not extend to the judiciary. His suspension

of the writ of habeas corpus was opposed by Chief Justice Taney, sitting as circuit

judge. Taney ruled that since Lincoln had no authority under the Constitution for

suspending the writ, the prisoner, John Merryman, should be set free. When Taney

attempted to serve a paper at the prison, to release Merryman, prison officials refused

to let Taney’s marshal discharge his duty. At that point Taney noted: “I have

exercised all the power which the constitution and laws confer upon me, but that

power has been resisted by a force too strong for me to overcome.” Ex parte

Merryman, 17 Fed. Case No. 9,487 (1861), at 153. Only after the war was over and

Lincoln dead did the Court breath some life into the privilege of the writ of habeas

corpus. In 1866, the Court held that military courts could not function in states where

federal courts had been open and operating. Ex parte Milligan, 71 U.S. (4 Wall.) 2

(1866).

6. Reconstruction Period

In 1867, the Supreme Court decided a case in which the state of Mississippi

sought to enjoin and restrain President Andrew Johnson from using the military to

implement two Reconstruction Acts. The statutes divided 10 Southern states into

five military districts and made it the duty of the President to assign to each one an

officer of the army to enforce the statutes. Attorney General Stanbery warned the

Court that any attempt to subject the President to subpoena or judicial force would

be met by a presidential decision to decline to obey the Court order, “not out of any

disrespect to this court, but out of respect to the high office which he fills.” If the

President refused to obey the Court order, what then? Stanbery told the Court that

7

7 Messages and Papers of the President 3225.

8

Id.

9

Cong. Globe, 37th Cong., 1st Sess. 393 (1861) (statement by Senator Howe).

10

12 Stat. 326 (1861).

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the next steps would be to hold the President in contempt and perhaps put him in jail,

all of which would make it impossible for him to perform his duties. State of

Mississippi v. Johnson, 4 Wall. (71 U.S.) 475, 485-87 (1867).

In a unanimous opinion for the Court, Chief Justice Chase rejected plaintiff’s

assertion that the duties placed upon President Johnson were ministerial, with nothing

left to judgment or discretion. Instead, the duties were “purely executive and

political” and thus beyond “judicial interference with the exercise of Executive

discretion.” Id. at 499. The duties “must necessarily be performed under the

supervision of the President as commander-in-chief.” Id. Moreover, the Court

speculated on what would happen if it did issue an order to the President. If he

refused obedience “it is needless to observe that the court is without power to enforce

its process.” On the other hand, if the President complied with the court order and

refused to execute the congressional statutes, the House of Representatives might

impeach him. Would the Court then interfere, in behalf of the President, and attempt

to restrain by injunction the Senate from sitting as a court of impeachment? Id. at

500-01. The Court concluded: “we are fully satisfied that this court has no

jurisdiction of a bill to enjoin the President in the performance of his official duties;

and that no such bill ought to be received by us.” Id. at 501.

7. The Chinese Exclusion Case

Dicta in a case decided by the Supreme Court in 1889 is of interest because it

recognized that the executive branch at that time still acknowledged that the decision

to take offensive action against another nation was reserved by the Constitution to

Congress, not to the President. In upholding a statute that excluded Chinese laborers

from the United States, the Court discussed England’s request to the United States

for naval forces to act in concert with France against China. “As this proposition

involved a participation in existing hostilities, the request could not be acceded to, and

the Secretary of State in his communication to the English government explained that

the war-making power of the United States was not vested in the President but in

Congress, and that he had no authority, therefore, to order aggressive hostilities to be

undertaken.” The Chinese Exclusion Case, 130 U.S. 581, 591 (1889). The language

here is significant. The Court (and the Administration) referred not merely to the

war-declaring power of Congress but to the war-making power.

8. Protecting Life and Property

On numerous occasions, Presidents have used military force to protect American

lives and property without seeking—or obtaining—congressional authority. A

prominent example from the nineteenth century was the U.S. bombardment of

Greytown, Nicaragua. In 1854, an American ship was ordered to Greytown to

compel local authorities to make amends for an affront to an American diplomat.

American firms in that area had also complained about property losses. When the

commander of the American ship decided that the authorities had failed to make

appropriate amends, he bombarded the town from nine in the morning to mid-

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afternoon and subsequently sent forces ashore to destroy by fire whatever remained

of the town.11

A resident of the town sued for damages to his property, but in 1860 a federal

court upheld the commander’s actions on the basis of the President’s duty to protect

lives and property in other countries. It is to the President, said the court, that

citizens abroad “must look for protection of person and property.” Durand v. Hollins,

8 Fed. Cas. (Cir. Ct. S.D. N.Y. 1860) (Case No. 4,186), p. 1123.

In 1868, Congress legislated on the President’s power to protect lives and

property abroad. The statute directed the President to demand from a foreign

government the reason for depriving any American citizen of liberty. If it appeared

wrongful and in violation of the rights of American citizenship, the President was to

demand the citizen’s release. If the foreign government delayed or refused, the

President could use such means “not amounting to acts of war” as he thought

necessary and proper to obtain the release.12 Legislation in 1989 inserted “and not

otherwise prohibited by law” after “acts of war.”13

Another life-and-property action litigated in the courts involved President

McKinley’s sending of 5,000 U.S. troops to China in 1900 to protect American

citizens threatened by the “Boxer Rebellion.” When Congress returned from recess,

he stated that his actions “involved no war against the Chinese nation.”14 A court case

raised the question of whether the Boxer Rebellion was a “war.” Fred Hamilton, a

U.S. serviceman charged with murder and found guilty by a military court, was tried

and convicted under the 58th article of war, which requires that a general court-martial

be assembled in “time of war.” A circuit court in Kansas noted that Congress had

increased the pay of military personnel fighting in China to the amount paid in “time

of actual war.” Relying on this statutory action, the court ruled that there prevailed

in China “a condition of war, within the spirit and intent” of the 58th article of war.

Hamilton v. M’Claughry, 136 Fed. 445, 451 (C.C. Kan. 1905). From 1900 to the

1930s, there were many other examples of Presidents using the life-and-property

reason to justify intervention in the Dominican Republic, Nicaragua, Haiti, Mexico,

and other countries.15

9. The Power of Dicta

In the 1936 case of United States v. Curtiss-Wright Corp., the Supreme Court

had to decide whether Congress had delegated too broadly in empowering the

President to declare an arms embargo in South America. The statute allowed the

11

Milton Offutt, “The Protection of Citizens Abroad by the Armed Forces of the United

States,” Johns Hopkins University Studies in Historical and Political Science, ser. 44, no. 4

(1928), pp. 32-34.

12

15 Stat. 223 (1868); 22 U.S.C. § 1732 (1994).

13

103 Stat. 1900, sec. 9 (1989).

14

13 Messages and Papers of the Presidents 6423 (December 3, 1900).

15

Louis Fisher, Presidential War Power 47-54 (1995).

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President to impose an arms embargo whenever he found that it “may contribute to

the reestablishment of peace” between belligerents. In upholding this statutory grant,

the Court added dicta (extraneous observations) to describe presidential power in

broad terms, drawing not merely from the Constitution but from extraconstitutional

sources.

In two cases decided the previous year, the Court struck down the delegation of

domestic power to the President.16 All that was necessary in Curtiss-Wright was to

announce that Congress could delegate more broadly in international affairs than in

domestic affairs. The basic question: Could Congress transfer some of its power to

the President, especially for conditions that were difficult to predict with any

accuracy? Instead, Justice Sutherland, who wrote for the majority, went beyond the

statutory question to argue that the exercise of presidential power does not depend

solely on an act of Congress because of the “very delicate, plenary and exclusive

power of the President as the sole organ of the federal government in the field of

international relations.” 299 U.S. 304, 320 (1936).

A number of studies have found Sutherland’s opinion deficient on historical and

constitutional grounds.17 Moreover, several subsequent court decisions noted that the

views expressed by Sutherland were only dicta. Justice Robert Jackson noted that

“much of the [Sutherland] opinion is dictum.” Youngstown Co. v. Sawyer, 343 U.S.

579, 636 n.2 (1952). In 1981, a federal appellate court cautioned against placing

undue reliance on “certain dicta” in Sutherland’s opinion: “To the extent that

denominating the President the `sole organ’ of the United States in international

affairs constitutes a blanket endorsement of plenary Presidential power over any

matter extending beyond the borders of this country, we reject that characterization.”

American Intern. Group v. Islamic Republic of Iran, 657 F.2d 430, 438 n.6 (D.C. Cir.

1981).

Nevertheless, Sutherland’s opinion, including the dicta, is often cited for a broad

definition of presidential power in external affairs. It is frequently cited by the

Supreme Court to support the existence of independent, implied, and inherent powers

for the President.18

10. World War II Cases

Both in preparation for World War II and its prosecution, the courts regularly

upheld the delegation of vast war powers to the President. The Priorities Act of 1941,

16

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Schechter Corp. v. United States, 295

U.S. 495 (1935).

17

Charles Lofgren, “United States v. Curtiss-Wright Export Corporation: An Historical

Reassessment,” 83 Yale L. J. 1 (1973); David M. Levitan, “The Foreign Relations Power: An

Analysis of Mr. Justice Sutherland’s Theory,” 55 Yale L. J. 467 (1946); Claude H. Van Tyne,

“Sovereignty in the American Revolution: An Historical Study,” 12 Am. Hist. Rev. 529

(1907).

18

E.g., Dames & Moore v. Regan, 453 U.S. 654, 661 (1981); Knauff v. Shaughnessy, 338

U.S. 537, 542 (1950); United States v. Pink, 315 U.S. 203, 229 (1942).

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passed six months before Pearl Harbor, authorized the President to allocate any

material he deemed necessary for the public interest or to promote the national

defense. The power to mobilize the resources of the business community was upheld

by the Supreme Court. If the power of the federal government was great enough to

draft men for battle, “its power to draft business organizations to support the fighting

men who risk their lives can be no less.” United States v. Bethlehem Steel, 315 U.S.

289, 305 (1942).

After Congress declared war, mobilization authority was extended to the control

of facilities and the operation of plants closed by strikes. Under the Emergency Price

Control Act of 1942, President Roosevelt appointed a price administrator who was

authorized to designate areas in the country in which defense activities had caused an

increase in housing rents. The price administrator designated 28 such areas, set

maximum rents, and gave the rent director discretion to order decreases on his own

initiative. Judicial machinery was supplied to handle appeals. This administrative

apparatus was attacked as unconstitutional delegation of power, but this statutory

authority was upheld by the Supreme Court. Bowles v. Willingham, 321 U.S. 503

(1944).

To combat inflation, Congress authorized the President to adjust prices, wages,

and salaries “to the extent that he finds necessary to aid in the effective prosecution

of the war or to correct gross inequities.” Plaintiffs argued in court that these vague

mandates transferred the legislative power to the President, but the Court upheld that

statute. Yakus v. United States, 321 U.S. 414 (1944). Another statute, delegating

to the Administration the authority to decide on what constituted “excessive profits”

and to institute claims to recover the money, was also upheld. Lichter v. United

States, 334 U.S. 742 (1947).

Even after World War II was over, President Truman continued to exercise

broad war powers. On May 8, 1945, he announced the end of the war in Europe and

on August 14 he announced the surrender of Japan. Yet the following May he seized

certain bituminous coal mines under the authority of the War Labor Disputes Act,

which empowered the President to take possession of any plant, mine, or facility as

may be required for the “war effort.” Such authority remained in force until the

President proclaimed the “termination of hostilities,” a step Truman did not take until

December 31, 1946, more than 16 months after Japan’s surrender. Truman retained

other powers that remained in force during “a state of war” and “a state of

emergency.” Truman stressed that “a state of war still exists.”19

The Housing and Rent Act of 1947 provided for an extension of wartime rent

controls. The Supreme Court conceded in a decision in 1948 that war in modern

times left an impact on the economy for years after, and created a dangerous situation

in which the war power “may not only swallow up all other powers of Congress, but

largely obliterate the Ninth and Tenth Amendments.” However, the Court held that

continuation of rent controls in this case did not contain such implications. A housing

deficit still existed because of the return of veterans and the slowdown in wartime

residential construction. Woods v. Miller, 333 U.S. 138, 146 (1948).

19

Public Papers of the Presidents, 1946, at 513.

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Not until April 28, 1952, the effective date of the Peace Treaty between Japan

and the Allies, did President Truman sign a statement terminating the state of war

with Japan, as well as the national emergencies proclaimed by President Roosevelt in

1939 and 1941. Thus, although actual hostilities between the United States and

enemy forces lasted for less than four years, Presidents Roosevelt and Truman

together exercised emergency and war powers for more than 12 years.

11. The Steel Seizure Case

In 1952, President Truman faced a nationwide strike of steelworkers, threatening

his ability to prosecute the war in Korea. He reacted by issuing Executive Order

10340, directing the Secretary of Commerce to take possession of and operate the

plants and facilities of 87 major steel companies. In district court, the Justice

Department argued that President Truman had acted solely on inherent executive

power without any statutory support, and that courts were powerless to control the

exercise of presidential power when directed toward emergency conditions.20

District Judge David A. Pine rejected the Justice Department’s analysis of

inherent presidential power and also its claim that President Truman’s action was not

susceptible to judicial review. In holding Truman’s seizure of the steel mills to be

unconstitutional, Judge Pine acknowledged that a nationwide strike could do

extensive damage to the country but believed that a strike “would be less injurious to

the public than the injury which would flow from a timorous judicial recognition that

there is some basis for this claim to unlimited and unrestrained Executive power,

which would be implicit in a failure to grant the injunction.” Youngstown Sheet &

Tube Co. v. Sawyer, 103 F.Supp. 569, 577 (D.D.C. 1952).

The Supreme Court, split 6 to 3, affirmed Judge Pine’s decision. Youngstown

Co. v. Sawyer, 343 U.S. 579 (1952). However, each of the five concurring Justices

wrote separate opinions, advancing different views of the President’s emergency

power. Only Justices Black and Douglas insisted on specific constitutional or

statutory authority to support presidential seizure of private property. The other four

concurring Justices (Frankfurter, Jackson, Burton, and Clark) and the three dissenters

left presidential power more open-ended when responding to future emergencies.

Justice Jackson’s concurrence has greatly influenced interpretations of

presidential power. He identified three categories, ranging from presidential actions

based on express or implied congressional authorization (putting executive authority

at its maximum) to executive measures that were incompatible with congressional

policy (reducing presidential power to its lowest ebb). In between those two

scenarios lay a “zone of twilight” in which the President and Congress shared

authority. Jackson said that congressional inertia, indifference, or quiescence might

enable, if not invite, independent presidential action. 343 U.S. at 637. He said he had

no illusion that any decision by a court “can keep power in the hands of Congress if

it is not wise and timely in meeting its problems.” Although the power to legislate for

emergencies belongs in the hands of Congress, “only Congress itself can prevent

power from slipping through its fingers.” Id. at 654.

20

“U.S. Argues President Is Above Courts,” The New York Times, April 25, 1952, at 1.

CRS-11

Several cases reached the federal courts regarding the question of whether the

conflict in Korea was legally a “war” in terms of life insurance policies. One district

court held that the hostilities in Korea constituted war even if not formally declared:

“We doubt very much if there is any question in the minds of the majority of the

people of this country that the conflict now raging in Korea can be anything but war.”

Weissman v. Metropolitan Life Ins. Co., 112 F.Supp. 420, 425 (D. Cal. 1953). In

another life insurance case, a district judge concluded: “No unsophisticated mind

would question whether there was a war in Korea in 1952.” Gagliormella v.

Metropolitan Life Ins. Co., 122 F.Supp. 246, 249 (D. Mass. 1954). The same result

was reached in Carius v. New York Life Insurance Co., 124 F.Supp. 388, 391-92 (D.

Ill. 1954).

12. The Vietnam Cases

The war in Vietnam triggered dozens of cases in the federal courts, each of them

challenging the scope of presidential power. Most of the legal disputes were disposed

of at the district or appellate court level. Those that reached the Supreme Court were

regularly turned aside on various grounds.

In one of the early cases, David Henry Mitchell, III, was convicted in 1966 for

failing to report for induction into the armed forces. To justify his conduct, he argued

that alleged violations of various treaties to which the United States was a signatory

was a defense to his prosecution. The Second Circuit disagreed in 1966, pointing out

that the power of Congress “to raise and support armies” and “to provide and

maintain a navy” was quite distinct from the use the President makes of members of

the armed forces. United States v. Mitchell, 369 F.2d 323 (2d Cir. 1966). The

Supreme Court denied certiorari, with Justice Douglas dissenting. 386 U.S. 972

(1967).

In 1966 and 1967, a district court and the D.C. Circuit dismissed a suit brought

by an army private who wanted the judiciary to enjoin military officials from sending

him to Vietnam. The courts held that the suit should be dismissed because it sought

judicial review of political questions that were beyond the jurisdiction of the courts.

Luftig v. McNamara, 252 F.Supp. 819 (D.D.C. 1966), aff’d, 373 F.2d 664 (D.C. Cir.

1967), cert. denied, 387 U.S. 945 (1967). A similar case was brought by three

members of the military and disposed of in the same manner. Mora v. McNamara,

387 F.2d 862 (D.C. Cir. 1967). When the Supreme Court denied cert, two Justices

(Stewart and Douglas) dissented. 389 U.S. 934 (1967). Two other cases during this

period were handled in similar fashion. United States v. Hart, 382 F.2d 1020 (3d Cir.

1967), cert. denied, 391 U.S. 956 (1968) (Douglas, J., dissenting); United States v.

Holmes, 387 F.2d 781 (7th Cir. 1967), cert. denied, 391 U.S. 936 (1968) (Douglas,

J., dissenting). In the latter case, Justice Douglas said: “I think we owe to those who

are being marched off to jail for maintaining that a declaration of war is essential for

conscription an answer to this important undecided constitutional question.” 391

U.S. at 949.

Subsequent court challenges were also unsuccessful. A private citizen brought

a class action against President Johnson, the Secretary of State, and the Secretary of

Defense for a declaratory judgment that they had acted unconstitutionally by carrying

on the war in Vietnam without a congressional declaration of limited or general war.

CRS-12

A district court dismissed the action because the citizen lacked standing to sue and

because the case presented a nonjusticiable political question. Velvel v. Johnson, 287

F.Supp. 846 (D. Kans. 1968). That decision was upheld on appeal. Velvel v.

Johnson, 415 F.2d 236 (10th Cir. 1969), cert. denied, 396 U.S. 1042 (1970). Other

cases brought by plaintiffs in the late 1960s also went against them. Morse v.

Boswell, 289 F.Supp. 812 (D. Md. 1968), aff’d, 401 F.2d 544 (4th Cir. 1968), cert.

denied, 393 U.S. 1052 (1969) (Douglas, J., dissenting); McArthur v. Clifford, 402

F.2d 58 (4th Cir. 1968), cert. denied, 393 U.S. 1002 (1968) (Douglas, J., dissenting).

John Heffron Sisson, Jr., was indicted for refusing to comply with a draft board

order. In three separate decisions, a district court held that the issue of whether there

was a lack of constitutional authority to conscript him to serve in a war that Congress

had not declared presented a political question outside the court’s jurisdiction. United

States v. Sisson, 294 F.Supp. 511, 515, 520 (D. Mass. 1968). The district court later

decided that his prosecution violated the free exercise and establishment of religion

clauses of the First Amendment and the due process clause of the Fifth Amendment

because he was conscientiously opposed to American military activities in Vietnam,

even though he was not in a formal sense a religious conscientious objector. United

States v. Sisson, 297 F.Supp. 902 (D. Mass. 1969). The Supreme Court dismissed the

government’s appeal on the ground that the Court lacked jurisdiction; the merits of

the case, including issues of the war power, were not addressed. United States v.

Sisson, 399 U.S. 267 (1970).

Another suit, requesting injunctive and declaratory relief, was brought by

Salvatore Orlando, who had been ordered to report for transport to Indochina

(Vietnam, Laos, and Cambodia) but objected that the war had not been declared or

specifically authorized by Congress. A district court found that Congress had

repeatedly given its support for the war, both by voting appropriations and extending

the Selective Service Act. Orlando v. Laird, 317 F.Supp. 1013, 1018 (E.D. N.Y.

1970). The judge rejected the argument that Congress had been “coerced” into

offering legislative support:

. . . it is idle to suggest that the Congress is so little ingenious or so inappreciative

of its powers, including the power of impeachment, that it cannot seize policy and

action initiatives at will, and halt courses of action from which it wishes the

national power to be withdrawn. Political expediency may have counseled the

Congress’s choice of the particular forms and modes by which it has united with

the presidency in prosecuting the Vietnam combat activities, but the reality of the

collaborative action of the executive and the legislative required by the

Constitution has been present from the earliest stages. Id. at 1019.

On appeal to the Second Circuit, this decision was affirmed. The precise means

by which Congress decides to ratify or approve military operations “is a political

question.” Orlando v. Laird, 443 F.2d 1039, 1043 (2d Cir. 1971). When the

Supreme Court denied cert, 404 U.S. 869 (1971), Justices Douglas and Brennan

dissented. Other efforts during this period to challenge the legality of the war in

Vietnam were also rejected.21

21

Massachusetts v. Laird, 400 U.S. 886 (1970); Commonwealth of Massachusetts v. Laird,

(continued...)

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In 1973, the Second Circuit was asked whether the Secretary of Defense, the

Secretaries of Army, Navy, and Air Force, and the Commander of American military

forces in Vietnam may implement the President’s directive ordering mining of the

ports and harbors of North Vietnam and continuation of air and naval strikes against

military targets located in North Vietnam. The court decided that the case was a

nonjusticiable political question. The court said that judges were “deficient in military

knowledge, lack[ed] vital information upon which to assess the nature of battlefield

decisions, and [sat] thousands of miles from the field of action,” and thus could not

“reasonably or appropriately determine whether a specific military operation

constitutes an ‘escalation’ of the war or is merely a new tactical approach within a

continuing strategic plan.” DaCosta v. Laird, 471 F.2d 1146, 1155 (2d Cir. 1973).

13. Does an Appropriation “Authorize” Policy?

Many of these cases involved the question of whether Congress, by appropriating

funds for the Vietnam War, had provided “authorization” within the meaning of the

Constitution. Initially, judges were persuaded that the appropriation of funds to

prosecute the war was one form of legislative authorization. Orlando v. Laird, 317

F.Supp. at 1017; Orlando v. Laird, 443 F.2d at 1041; Davi v. Laird, 318 F.Supp. at

481. As the Second Circuit noted in 1971: “there was sufficient legislative action in

extending the Selective Service Act and in appropriating billions of dollars to carry

on military and naval operations in Vietnam to ratify and approve the measures taken

by the Executive, even in the absence of the Gulf of Tonkin Resolution.” DaCosta

v. Laird, 448 F.2d 1368, 1369 (2d Cir. 1971), cert. denied, 405 U.S. 979 (1972).

Another case, seeking a preliminary injunction, was brought by a private who

argued that his superiors were without authority to order him to South Vietnam. An

appellate court held that he did not show sufficient probability of success on the

merits and was not entitled to preliminary injunction. Berk v. Laird, 429 F.2d 302 (2d

Cir. 1970). When the case was remanded to district court, the private offered expert

testimony from Professor Richard E. Fenno, Jr., that appropriations bills “do not

encompass major declarations of policy.” Another expert witness, Don Wallace, Jr.

of the Georgetown Law Center, also emphasized that both houses of Congress have

rules against including substantive legislation in appropriations bills, and that many

Members of Congress who voted funds to support armed forces in Vietnam did not

endorse the Administration’s policy. Berk v. Laird, 317 F.Supp. 715, 718, 721 (E.D.

N.Y. 1970). District Judge Judd rejected that analysis:

Whatever the comments of individual Congressmen, the act [of appropriating

funds] nevertheless gave Congressional approval to military expenditures in

Southeast Asia. That some members of Congress talked like doves before voting

with the hawks is an inadequate basis for a charge that the President was violating

21

(...continued)

327 F.Supp. 378 (D. Mass. 1971), aff’d, 451 F.2d 26 (1st Cir. 1971); Mottola v. Nixon, 318

F.Supp. 538 (N.D. Cal. 1970), rev’d by 464 F.2d 178 (9th Cir. 1972); Davi v. Laird, 318

F.Supp. 478 (W.D. Va. 1970).

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the Constitution in doing what Congress by its words had told him he might do.

Id. at 724.

In other parts of his decision, Judge Judd underscored this point. He said an

appropriations act “is like any other act of Congress,” and that the Constitution “is

not concerned with boundaries between the jurisdiction of appropriations subcommittees and substantive committees. Rules limiting amendment, even if enforced,

are not of constitutional significance.” Id. at 728. “The entire course of legislation,”

he said, “shows that Congress knew what it was doing, and that it intended to have

American troops fight in Vietnam.” Id. Judge Judd also pointed to the Gulf of

Tonkin Resolution, enacted in 1964, as legislative authority to President Johnson to

prevent aggression in Southeast Asia. Id. at 723.

Other judges expressed reluctance to assume that in appropriating funds for

Vietnam, Members of Congress were necessarily endorsing the war. To explore such

matters, said a three-judge court in 1972, would require judges to interrogate

Members “regarding what they intended by their votes, and then synthesization of the

various answers. To do otherwise would call for gross speculation in a delicate matter

pertaining to foreign relations.” Atlee v. Laird, 347 F.Supp. 689, 706 (D. Pa. 1972),

aff’d, 411 U.S. 911 (1973). These types of issues, the court held, were political

questions beyond the competence of the court.

A year later, the D.C. Circuit revisited the issue of appropriations. Two

members of the panel, Judge Wyzanski and Chief Judge Bazelon, recognized that the

overwhelming view of courts had been that appropriations, draft extensions, and other

forms of legislation on Indochina “did constitute a constitutionally permissible form

of assent.” Judge Wyzanski noted that he had earlier expressed the same view.

However, he and Judge Bazelon “now regard that body of authority as unsound.”

Mitchell v. Laird, 476 F.2d 533, 538 (D.C. Cir. 1973). As Judge Wyzanski explained:

This court cannot be unmindful of what every schoolboy knows: that in voting to

appropriate money or to draft men a Congressman is not necessarily approving of

the continuation of a war no matter how specifically the appropriation or draft act

refers to that war. A Congressman wholly opposed to the war’s commencement

and continuation might vote for the military appropriations and for the draft

measures because he was unwilling to abandon without support men already

fighting. An honorable, decent, compassionate act of aiding those already in peril

is no proof of consent to the actions that placed and continued them in that

dangerous posture. We should not construe votes cast in pity and piety as though

they were votes freely given to express consent. Id.

The War Powers Resolution of 1973 contains a section on the issue of whether

the appropriation of funds constitutes an authorization by Congress. The resolution

provides that the authority to introduce U.S. armed forces into hostilities or into

situations where involvement in hostilities would be “clearly indicated” by the

circumstances shall not be inferred “from any provision of law (whether or not in

effect before the date of the enactment of this joint resolution), including any

provision contained in any appropriation Act, unless such provision specifically

authorizes the introduction of United States Armed Forces into hostilities or into such

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situations and states that it is intended to constitute specific statutory authorization

within the meaning of this joint resolution.”22

14. Cases Brought by Members

From the Vietnam War to the present day, Members of Congress have gone to

court to contest presidential wars and defend legislative prerogatives. In most of

these cases the courts have held that the Members lacked standing to bring the case.

Even when Members gained standing, the courts refused to grant relief for a number

of reasons. Judges pointed out that the Members bringing the case represented only

a fraction of the congressional membership, and that often another group of Members

had filed a brief defending the President’s action. Moreover, courts noted that

Congress as a whole failed to invoke its institutional powers to confront the President.

In 1972, Senator Mike Gravel, joined by another Senator and 20 Members of the

House of Representatives, went to court seeking declaratory and injunctive relief

against military activities in Indochina. They argued that the military actions were

unlawful because Congress had not declared war. A district court dismissed the suit

as not within its jurisdiction for lack of standing by the Members, as an unconsented

suit against the United States, and as presenting a nonjusticiable political question.

Gravel v. Laird, 347 F.Supp. 7 (D.D.C. 1972).

A year later, Congressman Parren Mitchell and 12 other Members of the House

filed a complaint against President Nixon and the Secretaries of State, Defense, Army,

Navy, and Air Force seeking an injunction against the war in Indochina unless

Congress explicitly authorized the war. Although the D.C. Circuit granted the

plaintiffs standing to sue, it held that the question was political and beyond the

jurisdiction of the court. Mitchell v. Laird, 476 F.2d 533 (D.C. Cir. 1973). However,

the court had no difficulty in deciding that “there has been a war in Indo-China.” Id.

at 537.

In 1973, Congressman Robert Drinan and three other Members of Congress,

joined by an airman in the U.S. Air Force, sought a declaratory judgment and

injunctive relief that the aerial combat operations in Cambodia violated domestic and

international law. A district court held that the case involved political questions. The

court also noted that Congress and President Nixon had reached an agreement,

known as the “August 15 Compromise,” which allowed for the bombing to continue

for an additional 45 days. Therefore, the branches were not “in resolute conflict.”

Drinan v. Nixon, 364 F.Supp. 854, 860 (D. Mass. 1973). Had it been apparent that

the branches were “clearly and resolutely in opposition as to the military policy to be

followed by the United States, such a conflict could no longer be regarded as a

political question, but would rise to the posture of a serious constitutional issue

requiring resolution by the judicial branch.” Id. at 858. That decision was upheld on

appeal; 502 F.2d 1158 (1st Cir. 1973).

22

87 Stat. 558, sec. 8(a)(1) (1973).

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The same result was reached in a case brought by Congresswoman Elizabeth

Holtzman, who sought a determination that President Nixon could not engage in

combat operations in Cambodia and elsewhere in Indochina in the absence of

congressional authorization. Initially a district court granted her standing to bring the

suit and refused to dismiss the case on political question grounds. Holtzman v.

Schlesinger, 361 F.Supp. 544 (E.D. N.Y. 1973).

In a subsequent ruling, the court held that the President would be enjoined from

engaging in combat operations in Cambodia, but that the effective date of the

injunction would be postponed in order to permit the Administration to apply for a

stay from the appellate court. Holtzman v. Schlesinger, 361 F.Supp. 553 (E.D. N.Y.

1973). The court reviewed the history of the “August 15 Compromise.” After

President Nixon vetoed an appropriations bill that included language denying the use

of funds for bombing in Cambodia, Congress was unable to override the veto. The

two branches then agreed on language that allowed the bombing to continue until

August 15, 1973, after which the use of funds for combat activities in North Vietnam,

South Vietnam, Laos, and Cambodia would be prohibited. The court said that it

“cannot be the rule that the President needs a vote of only one-third plus one of either

House in order to conduct a war, but this would be the consequence of holding that

Congress must override a Presidential veto in order to terminate hostilities which it

has not authorized.” Id. at 565. The Second Circuit reversed the district court,

holding that the Holtzman challenge presented a political and not a justiciable

question. Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973). The Second

Circuit took note of the “August 15 Compromise” as evidence that Congress had

approved the Cambodian bombing. Id. at 1313.

Congressman Michael Harrington, joined by other Members of Congress and

private taxpayers, brought an action to enjoin shipments of war ordnance on the

ground that the shipments violated statutes prohibiting the expenditure of funds to

support U.S. combat activities in Southeast Asia. A district court held that the

questions were political and beyond the scope of judicial inquiry, remarking that “it

is the function of the Congress to determine whether the Executive has executed the

laws at variance with the intent of Congress.” Harrington v. Schlesinger, 373 F.Supp.

1138, 1141 (D. N.C. 1974). This decision was affirmed by the Fourth Circuit, which

denied standing for the Members of Congress and the private taxpayers. Harrington

v. Schlesinger, 528 F.2d 455 (4th Cir. 1975).

15. Member Suits (1982-99)

During the Administrations from Ronald Reagan to Bill Clinton, Members of

Congress continued to bring war power cases to court. They were regularly denied

relief under doctrines that included nonjusticiability, mootness, ripeness, and standing.

A number of these cases, however, highlight the factors that would be necessary to

effectively challenge presidential war power in court.

Congressman George Crockett and 28 other Members of Congress brought a

lawsuit against President Reagan for supplying military equipment and aid to El

Salvador, claiming that these actions violated the Constitution, the War Powers

Resolution (WPR), and the Foreign Assistance Act. A district court held that the

claim involving the WPR was nonjusticiable because it would require the court to do

CRS-17

factfinding to determine whether U.S. forces had been introduced into “hostilities or

imminent hostilities” in El Salvador. Crockett v. Reagan, 558 F.Supp. 893, 898

(D.D.C. 1982). Such factfinding had to be left to the political branches:

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 under the WPR, or to the

effect that the forces should be withdrawn, and the President disregarded it, a

constitutional impasse would be presented. Id. at 899.

The court exercised its equitable discretion to dismiss the claim that El Salvador,

under the Foreign Assistance Act, should be denied security assistance because it had

violated human rights. The doctrine of equitable discretion23 allows the court to

dismiss a claim when Members of Congress have a dispute that is primarily with

fellow legislators. President Reagan had issued certifications to Congress that El

Salvador had made a concerted and significant effort to comply with internationally

recognized human rights and Congress had accepted those certifications. Id. at 902.

The district court’s decision was affirmed on appeal. Crockett v. Reagan, 720 F.2d

1355 (D.C. Cir. 1983), cert. denied, 467 U.S. 1251 (1984).

Another case, involving Nicaragua, was brought by 12 Members of Congress,

citizens of Nicaragua, and residents of the state of Florida. The Nicaraguan plaintiffs

sought damages for injuries allegedly caused by U.S.-sponsored terrorist raids against

various towns and villages in Nicaragua. The congressional plaintiffs claimed

violations of the Constitution, the neutrality laws, the Boland amendment, and the

War Powers Resolution. The Florida residents sought to enjoin the alleged operation

of U.S.-sponsored paramilitary training camps located in Florida. A district court held

that these claims presented a nonjusticiable political question. Sanchez-Espinoza v.

Reagan, 568 F.Supp. 596 (D.D.C. 1983). When this decision was affirmed on

appeal, Judge Ruth Bader Ginsburg in a concurring opinion noted that Congress “has

formidable weapons at its disposal—the power of the purse and investigative

resources far beyond those available to the Third Branch. But no gauntlet has been

thrown down here by a majority of the Members of Congress.” Sanchez-Espinoza v.

Reagan, 770 F.2d 202, 211 (D.C. Cir. 1985).

A third challenge to President Reagan’s use of military and paramilitary forces

came from Congressman John Conyers and 10 other Members of Congress who

challenged the constitutionality of the invasion of Grenada. A district court held that

pursuant to the doctrine of equitable/remedial discretion, it would not exercise its

jurisdiction in action. In denying the motion for injunctive relief and granting the

motion to dismiss, the court explained that the doctrine of equitable discretion is

designed to prevent Members of Congress from asserting their constitutional or

legislative claims in court when they have collegial or in-house remedies available to

them. Conyers v. Reagan, 578 F.Supp. 324, 326 (D.D.C. 1984). By the time this

case reached the appellate court, the invasion had been terminated. The case was thus

23

This doctrine, unique to the D.C. Circuit, is now in doubt as a result of the Supreme Court

decision in Raines v. Byrd, 521 U.S. 811 (1997).

CRS-18

dismissed on grounds of mootness. Conyers v. Reagan, 765 F.2d 1124 (D.C. Cir.

1985).

Yet a fourth war powers case was brought against President Reagan, this time

involving 110 Members of the House who requested a district court to declare that

the President was required to file reports that would trigger the 60-to-90 day clock

of the War Powers Resolution with regard to U.S. escort operations in the Persian

Gulf. The court held that the constraints of equitable discretion and the political

question doctrine made the exercise of jurisdiction inappropriate. Lowry v. Reagan,

676 F.Supp. 333 (D.D.C. 1987). Once again a court noted that Congress had failed

to mount a challenge to the President by using legislative remedies available to it.

Had Congress enacted a joint resolution stating that hostilities existed in the Persian

Gulf for purposes of section 4(a)(1) of the War Powers Resolution, and if the

President still refused to file a report triggering the 60-to-90 day clock, “this Court

would have been presented with an issue ripe for judicial review.” Id. at 341. This

decision was affirmed by the D.C. Circuit in 1988 (No. 87-5426).

A more significant case involved a 1990 suit brought by 53 Members of the

House and one Senator who requested an injunction to prevent President Bush from

initiating an offensive attack against Iraq without first securing a declaration of war

or other explicit congressional authorization for such action. Although a district

judge ruled that the issue was not ripe for judicial determination, he decisively rejected

many of the sweeping claims for presidential war-making prerogatives promoted by

the Justice Department. Dellums v. Bush, 752 F.Supp. 1141 (D.D.C. 1990). The

department argued that the issue was political rather than legal, and that only the

political branches could determine the question of using military force against Iraq.

The judge said that claim was “far too sweeping to be accepted by the courts.” Id.

at 1145. If the President

had the sole power to determine that any particular offensive military operation,

no matter how vast, does not constitute war-making but only an offensive military

attack, the congressional power to declare war will be at the mercy of a semantic

decision by the Executive. Such an “interpretation” would evade the plain

language of the Constitution, and it cannot stand. Id.

In a footnote, the judge explained how a dispute would be ripe for judicial

determination. If Congress decided that U.S. forces should not be used in foreign

hostilities and the President refused to abandon participation in such hostilities,

“action by the courts would appear to be the only available means to break the

deadlock in favor of the constitutional provision.” Id. at 1144 n.5.

Second, the court cited earlier cases for the proposition that “courts do not lack

the power and the ability to make the factual and legal determination of whether this

nation’s military actions constitute war for purposes of the constitutional War

Clause.” Id. at 1146. The court said it had “no hesitation” in concluding that an

offensive military operation against Iraq by several hundred thousand U.S. servicemen

“could be described as a `war’ within the meaning of Article I, Section 8, Clause 11,

of the Constitution.” Id.

CRS-19

Third, the Justice Department argued that the plaintiffs lacked standing to sue.

The threat of injury, it said, was not immediate because there was only a “possibility”

that the President would initiate war against Iraq, and that there was no way of

knowing before that occurred whether he would seek a declaration of war from

Congress. Id. at 1147. The court concluded: “that argument, too, must fail,”

pointing out that it was “disingenuous for the Department to characterize plaintiffs’

allegations as to the imminence of the threat of offensive military action for standing

purposes as ‘remote and conjectural.’” Id. at 1148.

Having challenged the Administration’s arguments on these grounds, the court

identified a familiar weakness to Congress’s position: It had yet to act through the

regular legislative process to safeguard its institutional interests. It would be “both

premature and presumptuous” for the court to decide whether a declaration of war

was required “when the Congress has provided no indication whether it deems such

a declaration either necessary, on the one hand, or imprudent, on the other.” Id. at

1149-50. What would happen, said the court, if it issued the injunction requested by

the plaintiffs and a majority of the Members of Congress decided that the President

was free, as a legal or constitutional matter, to act militarily toward Iraq without a

congressional declaration of war? Id. at 1150. The court could find itself out on a

limb, taking a position without support from the political branches. To protect the

court from this embarrassment, it would be necessary for a majority of the Members

of Congress “to seek an order from the courts to prevent anyone else, i.e., the

Executive, from in effect declaring war. In short, unless the Congress as a whole, or

by a majority, is heard from, the controversy here cannot be deemed ripe.” Id. at

1151.

Two other lawsuits—brought by a sergeant of the National Guard in one case

and a private citizen in another—challenged President Bush in his contemplated action

against Iraq. Both cases were dismissed by district courts. The first case was

dismissed on the ground that the President’s deployment orders and activities in the

Persian Gulf were not subject to judicial review. Ange v. Bush, 752 F.Supp. 509

(D.D.C. 1990). In the second, a court held that the citizen did not establish a “case

or controversy” necessary for federal jurisdiction. Pietsch v. Bush, 755 F.Supp. 62

(E.D. N.Y. 1991).

Finally, Congressman Tom Campbell and 25 other Members of the House

brought an action in 1999, seeking a declaration that President Clinton had violated

the War Powers Clause of the Constitution and the War Powers Resolution by

initiating offensive air operations against the Federal Republic of Yugoslavia without

obtaining authorization from Congress. A district court concluded that the plaintiffs

did not have standing to raise their claims. Campbell v. Clinton, Civil Action No. 991072 (PLF) (D.D.C. 1999). In seeking guidance on legislative standing, the court

relied particularly on the Line Item Veto decision of Raines v. Byrd, 521 U.S. 811

(1997). As in other cases, the court emphasized the importance of Congress acting

as an institution, through a majority of Members, rather than having a few legislators

bring an issue to the judiciary. Only after Congress acted against a President to create

a true “constitutional impasse” or “actual confrontation” between the two political

branches would there be a basis for legislative standing, for “otherwise courts would

‘encourage small groups or even individual Members of Congress to seek judicial

resolution of issues before the normal political process has the opportunity to resolve

CRS-20

the conflict.’” Memorandum Opinion at 17, quoting Goldwater v. Carter, 444 U.S.

at 997-98 (Powell, J., concurring). The court said that if Congress had directed

President Clinton “to remove forces from their positions and he had refused to do so

or if Congress had refused to appropriate or authorize the use of funds for the air

strikes in Yugoslavia and the President had decided to spend that money (or money

earmarked for other purposes) anyway, that likely would have constituted an actual

confrontation sufficient to confer standing on legislative plaintiffs.” Id.

16. Conclusions

From 1789 to 1950, the power to initiate war against other nations resided for

the most part in the branch that the Framers had selected: Congress. There were a

number of military actions conducted unilaterally by the President, but they were

generally short-term and modest in scope. Throughout that period, the federal courts

were supportive of legislative prerogatives.

President Truman’s decision in 1950 to go to war against North Korea was the

first major presidential war against a foreign power. Although Congress did not take

action to protect legislative interests, the Supreme Court placed a restraint on

President Truman by striking down his seizure of steel mills. Since that time,

Presidents have shown an increasing willingness to use military force against foreign

countries without seeking authorization from Congress. Legislators have taken a

number of these disputes to court, but federal judges have consistently advised them

that if they want to litigate the scope of presidential war power, they must first

exhaust all institutional and legislative remedies. Congress must act as a whole to

challenge the President.