War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution

Report for Congress
War Powers Litigation
Initiated by Members of Congress
Since the Enactment of the
War Powers Resolution
Updated March 19, 2003
David M. Ackerman
Legislative Attorney
American Law Division

Congressional Research Service ˜ The Library of Congress

War Powers Litigation Initiated by Members of
Congress Since the Enactment
of the War Powers Resolution
Article I, § 8, of the Constitution confers on Congress the power to “declare
War.” Modern Presidents, however, have contended that, notwithstanding this
clause, they do not need Congressional authorization to use force. Partly in response
to that contention, and because of widespread concern that Congress had allowed its
war power to atrophy in the Korean and Vietnam conflicts, Congress in 1973 enacted
the War Powers Resolution (WPR). The WPR, inter alia, requires the President to
report to Congress any time U.S. military forces are introduced into “hostilities or ...
situations where imminent involvement in hostilities is clearly indicated by the
circumstances.” Once such a report is submitted, the WPR requires that the forces
must be withdrawn within 60 days (90 days in specified circumstances) unless
Congress declares war or otherwise authorizes their continued involvement.
Nonetheless, subsequent Presidents have continued to maintain that they have
sufficient authority independent of Congress to initiate the use of military force; and
all Presidents from Nixon to Bush have viewed the WPR as trenching on their
constitutional powers. Congress has on four occasions enacted authorizations
specifically waiving the 60-90 day limitation on the use of force otherwise imposed
by the WPR. But in six other instances involving U.S. military involvement in El
Salvador, Nicaragua, Grenada, the Persian Gulf conflict between Iraq and Iran, Iraq’s
invasion of Kuwait (prior to the Congressional authorization), and NATO’s action
in Kosovo, Presidential avoidance and Congressional inaction have led a number of
Members to initiate suits in federal court to compel various Presidents to comply
with the reporting and/or troop withdrawal requirements of the Resolution or to
otherwise recognize Congress’ war powers. A seventh suit, recently decided, sought
to enjoin the President from using military force against Iraq on the grounds such an
action would exceed the authority conferred by Congress in the statute it adopted in
October, 2002.
In every instance to date (with the exception of part of the last decision) the
courts have found reasons not to render a decision on the merits of the suits. The
courts have variously found the political question doctrine, the equitable/remedial
discretion doctrine, the issue of ripeness, and the question of Congressional standing
to preclude judicial resolution of the matter. Although not ruling out the possibility
that a conflict over the use of force between Congress and the President could require
a judicial resolution, the courts so far have deemed the matter to be one for the
political branches to resolve.
This report summarizes the seven cases initiated by Members of Congress. It
will be updated as circumstances warrant.

In troduction ..................................................1
El Salvador...................................................3
Nicaragua ....................................................4
Grenada .....................................................6
Persian Gulf Conflict Between Iran and Iraq.........................6
Iraq’s Invasion of Kuwait........................................7
NATO’s Air War in Kosovo and Yugoslavia........................8
Regime Change and Disarmament in Iraq..........................12
Conclusion ..................................................13

War Powers Litigation Initiated by Members
of Congress Since the Enactment of the
War Powers Resolution
Seven times since the enactment of the War Powers Resolution in 1973,1
Members of Congress have filed suit to force various Presidents to comply with its
requirements or otherwise to recognize Congress’ war powers under the Constitution.
Seven times the federal courts have refused to render a decision on the merits.2 In
four instances the suits have foundered on the political question or equitable
discretion doctrines, which the federal courts use to insulate themselves from
essentially political disputes. In another case the suit failed on grounds of standing,
and in two cases the suits foundered on the ripeness doctrine.
Article I, § 8, of the Constitution confers on Congress the power to “declare
War”; and Congress has enacted such declarations eleven times in American history.
It has also enacted a number of authorizations for the use of military force not rising3
to the level of a declaration of war. Nonetheless, concern that Congress had allowed
its war power to atrophy in the contexts of the Cold War and the wars in Korea and
Vietnam led to the enactment in 1973, over President Nixon’s veto, of the War
Powers Resolution (WPR). The legislation’s supporters hoped that its enactment
would ensure that a national consensus precedes the use of U.S. armed forces in
hostilities abroad. Accordingly, the Resolution requires the President to consult with
Congress “in every possible instance” prior to introducing U.S. armed forces into
hostilities and to report to Congress within 48 hours when, absent a declaration of
war, U.S. armed forces are introduced into “hostilities or ... situations where
imminent involvement in hostilities is clearly indicated by the circumstances.”4
Unless Congress authorizes continued involvement by adopting a declaration of war

1 P.L. 93-148 (Nov. 7, 1973); 87 Stat. 555; 50 U.S.C. §§ 1541 et seq. (1994).
2 But see infra Doe v. Bush, 2003 U.S. App. LEXIS 4477 (1st Cir. 2003) (rejecting on the
merits a contention that Congress in the “Authorization for the Use of Force Against Iraq
Resolution of 2002” unconstitutionally delegated its war-declaring power to the President).
3 For a thorough review of Congress’ actions in enacting declarations of war and otherwise
authorizing the use of force and of the legal consequences of these actions, see CRS Report
RL31133, Declarations of War and Authorizations for the Use of Force: Historical
Background and Legal Implications.
4 50 U.S.C. § 1543.

or other authorization, the WPR requires that U.S. troops be withdrawn at the end of

60 days (90 days in certain circumstances).5

Presidents from Ford to Bush have submitted more than 100 reports to Congress
giving notice of the involvement of U.S. armed forces in hostile situations.6 But
because all of these Presidents have objected to the War Powers Resolution as
unconstitutionally trenching on their constitutional powers, their reports to Congress
on the involvement of U.S. troops in hostilities overseas have generally avoided
using language that would trigger the time limitation and the consequent need for
Congressional authorization for continued involvement.7 That practice has frustrated
numerous lawmakers and has led some to pursue other avenues, including litigation,
to compel the President to recognize the legal necessity of obtaining Congressional
authorization for the use of force.
Although both the White House and the Members who have initiated the suits
have claimed that each will ultimately prevail if the courts ever pass on the merits of
the controversy, neither thus far has taken steps that would give the courts a viable
statutory or constitutional issue to resolve, rather than a policy dispute. On the one
hand, despite periodic Administration claims that it would welcome a court test, the
Justice Department has consistently raised threshold obstacles to court challenges
such as Member standing to sue and the political question doctrine – obstacles which
have so far successfully forestalled judicial rulings on the merits. On the other hand,
litigation by Members of Congress to force a decision has not been preceded by
legislative actions that have been sufficient to create the “irreconcilable conflict”
between the executive and legislative branches that might make a judicial decision
possible, if not probable.
This report summarizes the seven suits that have been brought by Members of
Congress since the enactment of the War Powers Resolution which have alleged
Presidential noncompliance with the Resolution and/or the requirements of the
Constitution with respect to the involvement of U.S. armed forces in El Salvador,
Nicaragua, Grenada, U.S. escort operations in the Persian Gulf, Iraq’s invasion of
Kuwait, NATO’s actions against Yugoslavia, and Iraq’s noncompliance with its
obligation to disarm.

5 Id. § 1544.
6 See CRS Issue Brief IB81050, War Powers Resolution: Presidential Compliance.
7 The one exception to that practice was President Ford’s report to Congress on the U.S.
response to the seizure of the Mayaguez in 1975 by Cambodian naval vessels, which
specifically cited the section of the Resolution (§ 4(a)(1)) triggering the time limit. For a
detailed description and analysis of Presidential compliance with the War Powers
Resolution, see CRS Report RL31185, The War Powers Resolution: After Twenty-Eight

El Salvador
In Crockett v. Reagan8 in 1982 16 Senators and 13 House Members asked a
federal district court to declare that military aid supplied to the government of El
Salvador by President Reagan usurped Congress’ war powers under the Constitution
and violated the War Powers Resolution and the Foreign Assistance Act. In
particular, the lawmakers charged that the unreported dispatch of 56 members of the
U.S. armed forces as military advisers to war-racked El Salvador constituted a
violation of the Resolution. The Reagan Administration moved to dismiss the action
on the grounds the suit involved a political question, and the district court granted the
motion. The U.S. Court of Appeals for the District of Columbia affirmed.
Examining the categories of political questions set forth in Baker v. Carr,9 the
trial court rejected the Administration’s arguments that judicial resolution was
inappropriate because it would interfere with executive discretion in the foreign
affairs field or because the suit involved the apportionment of power between the
executive and legislative branches. However, it concluded, judicial resolution was
inappropriate because there were no “judicially discoverable and manageable
standards for resolution” of the case:
The questions as to the nature and extent of the United States’ presence in El
Salvador and whether a report under the WPR is mandated because our forces
have been subject to hostile fire or are taking part in the war effort are
appropriate for congressional, not judicial, investigation. Further, in order to
determine the application of the 60-day provision, the Court would be required
to decide at exactly what point in time U.S. forces had been introduced into
hostilities or imminent hostilities, and whether that situation continues to exist.
This inquiry would be even more inappropriate for the judiciary.

8 Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff’d per curiam, 720 F.2d 1355,

1357 (D.C.Cir. 1983), cert. den., 467 U.S. 1251 (1984).

9 369 U.S. 186 (1962). The Supreme Court in Baker identified the possible dimensions of
the political question doctrine as follows:
It is apparent that several formulations which vary slightly according to the
settings in which the questions arise may describe a political question, although
each has one or more elements which identify it as essentially a function of the
separation of powers. Prominent on the surface of any case held to involve a
political question is found a textually demonstrable constitutional commitment
of the issue to a coordinate political department; or a lack of judicially
discoverable and manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind clearly for nonjudicial
discretion; or the impossibility of a court’s undertaking independent resolution
without expressing lack of respect due coordinate branches of government; or an
unusual need for unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements by
various departments on one question.
Id. at 217.

The Court lacks the resources and expertise (which are accessible to the
Congress) to resolve disputed questions of fact concerning the military situation10
in El Salvador.
The trial court contrasted the situation in El Salvador with the conflict in
Vietnam, noting that the latter conflict had persisted for seven years, resulted in more
than a million deaths (including over 50,000 Americans), and involved the
expenditure of $100 billion. In El Salvador, the court noted, the American military
personnel were relatively few in number and had suffered no casualties.
Accordingly, the court concluded, the question of whether U.S. forces had been
introduced into hostilities in El Salvador was less obvious than Vietnam, and “[t]he
subtleties of fact-finding in this situation should be left to the political branches.”11
The court declined to speculate about the kind of Congressional actions that
might give rise to a judicially manageable issue, noting simply that “Congress has
taken absolutely no action that could be interpreted to have that effect.” However,
it did state that “were Congress to pass a resolution to the effect that a report was
required under the WPR, or to the effect that the forces should be withdrawn, and the
President disregarded it, a constitutional impasse appropriate for judicial resolution
would be presented.”12
On appeal the United States Court of Appeals for the District of Columbia
affirmed the dismissal in a brief per curiam opinion “for the reasons stated by the
District Court.”
In Sanchez-Espinoza v. Reagan13 in 1983, twelve Members of the House of
Representatives, 12 Nicaraguan citizens, and 2 United States citizens sued for
damages, injunctive relief and a declaration that President Reagan and other
executive officials had violated various federal statutes, including the War Powers
Resolution, by supporting paramilitary operations designed to overthrow the
government of Nicaragua. A federal district court dismissed the litigation as raising
nonjusticiable political questions, and the U.S. Court of Appeals for the District of
Columbia again affirmed.
The district court stated as a predicate that the separation of powers doctrine
affords the judiciary a very limited role in matters related to foreign policy and
national security, stating that such matters are largely, if not exclusively, entrusted
to the political branches. The court then examined various benchmarks established
by the Supreme Court for application of the political question doctrine, and found

10 558 F.Supp. at 898.
11 Id. at 899.
12 Id. at 899.
13 Sanchez-Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983), aff’d, 770 F.2d 202 (D.C.
Cir. 1985).

three of the criteria established in Baker v. Carr, supra, for determining whether a
question falls into that category to be particularly relevant.
In accord with the Crockett decision, the district court held that resolution of the
issue raised by the Congressional plaintiffs called for fact-finding that exceeded its
competence. In political question terms the court said that resolution of the issue
raised by the lawmakers was difficult if not impossible because of the lack of
“judicially discoverable and manageable standards.”14 According to the court, the
circumstances before it were even more egregious than those in Crockett since “the
covert activities of CIA operatives in Nicaragua and Honduras are perforce even less
judicially discoverable than the level of participation by U.S. military personnel in
hostilities in El Salvador.”15 In addition, the court stated, in light of the wide
differences between the President and Congress concerning Nicaraguan policy, “[a]
second reason for finding this matter non-justiciable is the impossibility of our
undertaking independent resolution without expressing a lack of the respect due
coordinate branches of government.”16
Finally, the court averred, because Administration policy was under constant
review at both ends of Pennsylvania Avenue, attempts at a resolution by the judiciary
presented a real danger of embarrassment from multifarious pronouncements by
various departments on the question of U.S. involvement. “Such an occurrence,” it
said, “would, undoubtedly, rattle the delicate diplomatic balance that is required in
the foreign affairs arena.”17
The United States Court of Appeals for the District of Columbia affirmed on
appeal. With respect to the claim of the Congressional plaintiffs that the assistance
given the contras by the executive branch violated the Boland amendment forbidding
the CIA and the Department of Defense from providing any such assistance, the court
noted that the Boland amendment was an appropriations rider and had expired at the
end of fiscal 1983. As a consequence, it held that the claim had to be dismissed as
moot. With respect to the Congressional plaintiffs’ claim that the assistance to the
contras amounted to waging war and that, as a consequence, they had “been deprived
of their [constitutional] right to participate in the decision to declare war,” the
appellate court, citing Crockett, held that the “war powers issue presented a
nonjusticiable political question.”18 Justice Ginsburg filed an opinion concurring in
the latter ruling on the grounds the issue was “not ripe for judicial review.” She
stressed that the political branches had not as yet reached “a constitutional impasse”

14 568 F. Supp. at 600.
15 Id.
16 Id.
17 Id. The court noted in a footnote that another reason for dismissing the suit lay in the
doctrine of equitable or remedial discretion. As explained by the court, that doctrine
counsels judicial restraint where the Congressional plaintiffs could obtain substantial relief
through Congressional action and the suit represents, as a consequence, a “circumvent(ion
of) the process of democratic decisionmaking.” See 568 F. Supp. 600-601, n. 5.
18 770 F.2d at 210.

on the issue. Congress, she said, has “formidable weapons at its disposal ... [b]ut no
gauntlet has been thrown down here by a majority of the Members of Congress.”
In Conyers v. Reagan19 in 1984, eleven Members of the House challenged the
President Reagan’s use of force in Grenada as an executive usurpation of Congress’
war powers under the Constitution. The federal district court dismissed the action
on the basis of the doctrine of equitable/remedial discretion, which counsels the
courts to refrain from hearing cases brought by Congressional plaintiffs who can
obtain substantial relief by legislative action. In particular, the court said, “[w]hat is
available to these plaintiffs are the institutional remedies afforded to Congress as a
body; specifically, the War Powers Resolution ....”20
On appeal the United States Court of Appeals for the District of Columbia
affirmed largely on mootness grounds because the invasion had been concluded.
Congressional plaintiffs’ attempt on appeal to raise the war powers issue because of
the post-invasion presence of U.S. military personnel in Grenada, the appellate court
said, came too late and did not alter the moot character of the case.
Persian Gulf Conflict Between Iran and Iraq
In Lowry v. Reagan21 in 1987, a federal district court dismissed an action
brought by 110 Members of the House to compel President Reagan to file a report
under the War Powers Resolution in connection with the initiation of U.S. escort
operations of reflagged Kuwaiti oil tankers in the Persian Gulf during the war
between Iran and Iraq. The grounds for dismissal this time were both the equitable
discretion and political question doctrines. Once again, the U.S. Court of Appeals
for the District of Columbia affirmed.
Taking note of the divisions in Congress with respect to the applicability of the
War Powers Resolution and the wisdom of the escort operation, the district court
Although styled as a dispute between the legislative and executive branches of
government, this lawsuit evidences and indeed is a by-product of political
disputes within Congress regarding the applicability of the War Powers22
Resolution to the Persian Gulf situation.
The court also took note of several unsuccessful legislative efforts to force
Presidential compliance with the law and to revise and strengthen the War Powers
Resolution and concluded that the plaintiffs’ “dispute is ‘primarily with [their] fellow

19 Conyers v. Reagan, 578 F. Supp. 324 (D.D.C. 1984), aff’d, 765 F.2d 1124 (D.C. Cir.


20 578 F. Supp. at 327.
21 Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987), aff’d, No. 87-5426 (D.C. Cir. 1988).
22 Id. at 338.

legislators.’”23 Accordingly, the court said it was proper as a matter of equitable
discretion to withhold the exercise of jurisdiction and the requested relief. It noted,
however, that if Congress enacted legislation to enforce the Resolution and the
President ignored it, “a question ripe for judicial review” would be presented.
Analyzing the complex international political situation as it impacted on the
Gulf in light of the benchmarks set in Baker v. Carr, supra, the court also concluded
“that plaintiffs’ request for declaratory relief presents a nonjusticiable political
question.”24 A judicial resolution of the matter, it said, would risk “the potentiality
of embarrassment ... from multifarious pronouncements by various departments on
one question.”25
In an unpublished opinion the United States Court of Appeals for the District
of Columbia dismissed the appeal on grounds the suit presented a nonjusticiable
political question and on grounds of mootness.26 By the time of its decision Iran and
Iraq had agreed to a cease-fire.
Iraq’s Invasion of Kuwait
In Dellums v. Bush27 in 1990, fifty-three House Members and one Senator
sought to enjoin President Bush from initiating an offensive attack against Iraq
without first obtaining Congressional authorization. Iraq had invaded and occupied
Kuwait in August, 1990; and President Bush, with the sanction of the United Nations
Security Council, had assembled a massive military force in the vicinity with the
apparent purpose of reversing that occupation. He had not, however, sought or
obtained Congressional authorization for the use of force. In those circumstances a
federal district court ruled that the issue was not yet ripe for judicial decision and
dismissed the case.
In contrast to the preceding decisions, the court concluded that neither the
political question nor the equitable/remedial discretion doctrines precluded it from
resolving the question presented by the suit. It said that “in principle, an injunction
may issue at the request of Members of Congress to prevent the conduct of a war
which is about to be carried on without congressional authorization.”28 On the
political question issue, it noted the “clear” language of the Constitution authorizing
Congress to declare war and the absence of any serious factual dispute that the
initiation of combat operations against Iraq by several hundred thousand troops
would constitute a war. It further asserted that the courts were not excluded from
resolving suits merely because they involved questions of foreign policy. On the

23 Id. at 339.
24 Id. at 340.
25 Id. at 340, quoting Baker v. Carr, supra, at 217.
26 Lowry v. Reagan, No. 87-5426 (D.C. Cir. 1988).
27 752 F.Supp. 1141 (D.D.C. 1990).
28 Id. at 1149.

remedial discretion issue, the court concluded, without further explanation, that the
plaintiffs “cannot gain substantial relief by persuasion of their colleagues alone.”29
Nonetheless, the court refused to resolve the case on the merits on the grounds
that not all the elements necessary for a decision were yet present, i.e., the case was
not yet “ripe” for decision. On the one hand, it noted, a majority of the Congress had
taken no action on the matter of whether Congressional authorization was needed in
this instance; the plaintiffs, it observed, represented only about 10 percent of the
Congress. On the other hand, it said, it was also not yet irrevocably certain that the
President intended to initiate a war against Iraq. Both elements, it asserted, were
necessary before a court could address the constitutional issue. It said that a majority
of Congress had to request relief “from an infringement on its constitutional war-
declaration power,” and the Executive Branch had to be shown to be committed to
“a definitive course of action.”
No appeal was taken from this decision.
NATO’s Air War in Kosovo and Yugoslavia
In Campbell v. Clinton30 in 1999, twenty-six Members of the House initiated a
suit asking for a declaratory judgment that U.S. participation in NATO’s military
actions against Yugoslavia in the Kosovo situation violated Congress’ constitutional
power to declare war or otherwise authorize military action and that the War Powers
Resolution required the termination of U.S. participation “no later than sixty calendar
days after March 24, 1999” (the date NATO began bombing Yugoslavia) unless
Congress authorized continued U.S. involvement. A federal district court dismissed
the action on the grounds the Members lacked standing to bring the suit, and the U.S.
Court of Appeals for the District of Columbia affirmed on the same grounds. The
Supreme Court denied a request to review the decision.
The district court noted that the House and Senate had taken a number of actions
with respect to NATO’s offensive in Yugoslavia. On March 23, 1999, the Senate
had approved a concurrent resolution authorizing the President to “conduct military
air operations and missile strikes in cooperation with our NATO allies against ...
Yugoslavia” by a vote of 58-41. On March 24, the day the attacks began, the court
said, the House approved a resolution stating that it “supports the members of the
United States Armed Forces who are engaged in military operations against the
Federal Republic of Yugoslavia and recognizes their professionalism, dedication,
patriotism, and courage” by a vote of 424-1. On April 28 the House defeated a joint
resolution declaring war on Yugoslavia by a vote of 2-427; rejected the concurrent
resolution that had been approved by the Senate on a tie vote of 213-213; rejected a
concurrent resolution directing the President to withdraw U.S. armed forces from
their involvement in the NATO campaign by a vote of 139-290; and passed a bill
barring the use of Department of Defense funds for the deployment of ground forces
in Yugoslavia without specific authorization by voice vote. Finally, the court noted

29 Id. at 1149.
30 Campbell v. Clinton, 52 F.Supp.2d 34 (D.D.C. 1999), aff’d, 203 F.2d 19 (D.C. Cir.), cert.
den., 531 U.S. 815 (2000).

that Congress had enacted a supplemental emergency appropriations bill on May 20
providing funds for the conflict in Yugoslavia but had not stated, as required to
satisfy the War Powers Resolution, that the measure constituted specific statutory
authorization for the continued involvement of U.S. armed forces.
The trial court stated that the lawsuit raised “especially grave separation of
powers issues” and observed that courts traditionally have been reluctant “to
intercede in disputes between the political branches of government that involve
matters of war and peace.”31 It rejected the argument, however, that courts can never
adjudicate disputes that involve foreign relations. But it said that in this instance it
did not need to determine whether the case was properly subject to judicial decision
because the Congressional plaintiffs lacked standing to bring the suit. While the D.C.
Circuit had in the past followed a fairly relaxed standard with respect to
Congressional standing, it said, the Supreme Court in Raines v. Byrd32 had
“dramatically” altered the legal landscape. In that case, it asserted, the Court had
held that members of Congress who voted against the Line Item Veto Act33 lacked
standing to challenge the constitutionality of the Act because they retained a political
remedy, namely, the repeal of the Act or the exemption of individual appropriations
from its purview. Any injury they suffered with respect to their votes on future
appropriations bills and to the balance of power between Congress and the President,
the Court had ruled, was “wholly abstract and widely dispersed” and lacked the
particularity and concreteness necessary to confer standing.
Thus, the court said, it was not sufficient in this case for the Congressional
plaintiffs to allege simply that the President had ignored the declaration of war clause
of the Constitution or the War Powers Resolution. Nor, it held, was it sufficient to
allege that Congress had taken actions in this instance which the President had
nullified or ignored by initiating and continuing U.S. involvement in the NATO
campaign. For Members of Congress to have standing, the court said, there had to
be a genuine “constitutional impasse.” Had Congress directed the President to
withdraw U.S. forces and he had refused to do so, or had Congress refused to
appropriate funds for the air strikes and the President had used other funds for that
purpose, the court suggested, “that likely would have constituted an actual
confrontation sufficient to confer standing on legislative plaintiffs.”34 But the
Congressional votes here, the court stated, did “not provide the President with such
an unambiguous directive” but instead sent “distinctly mixed messages.” The court
Where, as here, Congress has taken actions that send conflicting signals with
respect to the effect and significance of the allegedly nullified votes, there is no

31 Id. at 40.
32 521 U.S. 811 (1997).
33 2 U.S.C. § 691.
34 521 U.S. at 43.

actual confrontation or impasse between the executive and legislative branches35
and thus no legislative standing.
The court also noted that the 26 plaintiffs in this case had not been authorized by the
House to institute the suit.
On February 18, 2000, the U.S. Court of Appeals for the District of Columbia36
affirmed on standing grounds. The court noted that in Coleman v. Miller the
Supreme Court had ruled that state legislators who claimed their votes had been
sufficient to defeat the ratification of a constitutional amendment had standing to
challenge the actions of the Kansas Secretary of State in authenticating the
amendment as approved, because the effect of the authentication was to nullify the
effectiveness of their votes. In Campbell the appellate court interpreted Coleman to
mean that the legislators had standing only if they had no legislative remedy
whatsoever. But in this case, it concluded, “appellants ... continued ... to enjoy ample
legislative power to have stopped prosecution of the `war’”:
Congress certainly could have passed a law forbidding the use of U.S. forces in
the Yugoslav campaign .... Congress always retains appropriations authority and
could have cut off funds for the American role in the conflict .... And there
always remains the possibility of impeachment should a President act in
disregard of Congress’ authority on these matters.
This reasoning, the court said, applied to the plaintiffs’ claims regarding both the
War Powers Resolution and the constitutional allocation of the war power.
Each of the three judges on the appellate panel filed concurring opinions as well.
Judge Silberman stated that in his opinion the plaintiffs’ claims (and, apparently, any
other war power claim) should also be dismissed on grounds of nonjusticiability,
because “[w]e lack `judicially discoverable and manageable standards’ for addressing
them, and the War Powers Clause claim implicates the political question doctrine.”
The 60-day withdrawal mandate of the War Powers Resolution, he stated, is triggered
only if U.S. forces are engaged in hostilities or are in imminent danger of hostilities.
But that standard, he contended, “is not precise enough and too obviously calls for
a political judgment to be one suitable for judicial determinations.” Similarly, he
asserted, there is no constitutional test for determining what constitutes a war or
when a declaration of war is necessary, and the judiciary is ill-equipped to engage in
the fact-finding involved in making such determinations. Finally, Judge Silberman
said, such issues are necessarily ones of “the greatest sensitivity for our foreign
relations” on which conflicting pronouncements by the different branches of
government ought to be avoided.
Judge Tatel’s concurring opinion took issue with this assertion that the case
presented a nonjusticiable political question. Determining whether war exists or not,
he contended, “is no more standardless than any other question regarding the
constitutionality of government action”; and, he said, courts have frequently made

35 Id. at 44.
36 307 U.S. 433 (1939).

that determination. Moreover, he asserted, the plaintiffs’ claim regarding the War
Powers Resolution did not even require the court to make that determination but only
whether U.S. armed forces were introduced into “hostilities.” “One of the most
important functions of Article III courts,” he said, “[is] determining the proper
constitutional allocation of power among the branches of government.” Claims that
a case involves issues of foreign relations and risks the danger of government
speaking with “multifarious voices,” Judge Tatel concluded, should not prevent a
court from determining “whether the President exceeded his constitutional or
statutory authority by conducting the air campaign in Yugoslavia”:
If in 1799 the Supreme Court could recognize that sporadic battles between
American and French vessels amounted to a state of war, and if in 1862 it could
examine the record of hostilities and conclude that a state of war existed with the
confederacy, then surely we, looking at similar evidence, could determine
whether months of daily airstrikes involving 800 U.S. aircraft flying more than

20,000 sorties and causing thousands of enemy casualties amounted to “war”

within the meaning of Article I, section 8, clause 11.
Finally, Judge Randolph contended that the court had misapplied the Supreme
Court’s decisions in Coleman and Raines but that the case still should have been
dismissed on the grounds of standing and also of mootness. The plaintiffs lacked
standing, he said, not because they retained legislative remedies for what they
claimed to be the President’s illegal actions but because their votes had not, as
required by Raines, been completely nullified. In fact, he said, their vote against a
declaration of war deprived the President of the greatly expanded powers he obtains
under a number of statutes in a declared war and deprived him as well of the
“authority to introduce ground troops into the conflict.” Thus, he asserted,
“plaintiffs’ votes against declaring war were not for naught,” and for that reason they
lacked standing to sue. The reasoning of the majority opinion was wrong, he
contended, because it “confused the right to vote in the future with the nullification
of a vote in the past.” In addition, he said, the case was moot, because hostilities had
ended at least by June 21, 1999. If the issue were one “capable of repetition, yet
evading review,” Judge Randolph noted, it would not be moot. But neither element
was satisfied here. The D.C. Circuit’s prior decision in Conyers v. Reagan, supra,
he stated, had held that wars initiated without congressional approval are not matters
that inherently evade review. Moreover, he said, it was doubtful that the statutory
claim that the President continued the war for more than 60 days without
congressional authorization met the “capable of repetition” element. President
Clinton, he noted, was the first President “who arguably violated the 60-day
provision,” and the plaintiffs themselves stated that in modern times most U.S.
attacks on foreign nations “will be over quickly, by which they mean less than 60
The Congressional appellants sought further review in the Supreme Court; but
on October 2, 2000, the Court denied review.

Regime Change and Disarmament in Iraq
In Doe v. Bush37 twelve Members of the House of Representatives, three
members of the military, and fifteen parents of service members instituted suit to
enjoin President Bush from launching a military invasion of Iraq to remove Saddam
Hussein from power and to enforce Iraq’s disarmament. Notwithstanding enactment
in October, 2002, of the “Authorization for the Use of Force Against Iraq
Resolution,”38 the plaintiffs contended that the authorization unconstitutionally
delegated to the President Congress’ power to declare war or, alternatively, that an
invasion of Iraq would exceed the authority granted by the authorization. On
February 24, 2003, a federal district court held the suit to raise a nonjusticiable
political question and dismissed the case. On March 13, 2003, the U.S. Court of
Appeals for the First Circuit affirmed on the basis that the issues in the case were not
ripe for judicial review and that the October authorization did not constitute an
unlawful delegation of Congress’ constitutional authority.
Citing Baker v. Carr, supra, the trial court held that judicial resolution of a war
powers issue would be appropriate “only when the actions taken by Congress and
those taken by the Executive manifest clear, resolute conflict.” The Constitution, it
said, commits the conduct of the nation’s foreign relations to the political branches
of the federal government. As a consequence, it stated, “absent a clear abdication of
this constitutional responsibility by the political branches, the judiciary has no role
to play.” In this instance, the court ruled, there was no “intractable constitutional
gridlock.” In the October, 2002, authorization, it noted, “Congress has expressly
endorsed the President’s use of the military against Iraq”; and as of the day of its
decision, it said, “the President, for his part, has not irrevocably committed our armed
forces to military conflict in Iraq.” Given the “day to day fluidity” in the situation,
the court concluded, the case raised “political questions ... which are beyond the
authority of a federal court to resolve.”
On March 13, 2003, the U.S. Court of Appeals affirmed. Eschewing reliance
on the political question doctrine, the appellate court held that there was no
“constitutional impasse” between Congress and the President regarding the use of
force against Iraq and, as a consequence, the issue was not ripe for judicial review.
Ripeness, the court said, “mixes various mutually reinforcing constitutional and
prudential considerations.” One, it stated, is to prevent rulings on “abstract
disagreements.” A second is “to avoid unnecessary constitutional decisions.” A
third element simply recognizes that courts can benefit “from a focus sharpened by
particular facts.” In this instance, it asserted, “[m]any important questions remain
unanswered about whether there will be a war, and, if so, under what conditions.”

37 Doe v. Bush, 2003 U.S. Dist. LEXIS 2773 (D. Mass. Feb. 27, 2003), aff’d, 2003 U.S. App.
LEXIS 447 (1st Cir. Mar. 13, 2003), petition for rehearing denied, 2003 U.S. App. LEXISst

4830 (1 Cir. Mar. 18, 2003).

38 P.L. 107-243 (Oct. 16, 2002). In its operative section the statute authorizes the President
to use the armed forces of the United States “as he determines to be necessary and
appropriate in order to – (1) defend the national security of the United States against the
continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council
resolutions regarding Iraq.”

Even if the plaintiffs’ assertion that the October authorization does not authorize the
use of force against Iraq is granted, it said, “it is impossible to say yet whether or not
those commands will be obeyed.” “If courts may ever decide whether military action
contravenes congressional authority,” the court concluded, “they surely cannot do so
unless and until the available facts make it possible to define the issues with clarity.”
The court did, however, reach the merits of the issue on the plaintiffs’ other
claim, namely, that the discretionary authority to use force conferred on the President
by the October authorization unconstitutionally delegated Congress’ power to declare
war. That issue might be “clearly framed,” the appellate court stated, “if Congress
gave absolute discretion to the President to start a war at his or her will.” But, it said,
“the mere fact that the October Resolution grants some discretion to the President
fails to raise a sufficiently clear constitutional issue.” Even with respect to the
exercise of powers that are entirely legislative in nature, it noted, the Supreme Court
has upheld “enactments which leave discretion to the executive branch ... as long as
they offer some ‘intelligible principle’ to guide that discretion.” Moreover, it
stressed, in the area of foreign affairs the Court has made clear that “the
nondelegation doctrine has even less applicability ....” In addition, it said, “there is
[no] clear evidence of congressional abandonment of the authority to declare war to
the President.” For more than a decade, it noted, Congress “has been deeply involved
in significant debate, activity, and authorization connected to our relations with Iraq
....” The October resolution itself, the court said, “spells out justifications for a war
and frames itself as an ‘authorization’ of such a war.” These circumstances, the court
concluded, “do not warrant judicial intervention.”
On March 18, 2003, the appellate court rejected an emergency petition for
rehearing of its decision. The court stated:
Although some of the contingencies described in our opinion appear to have been
resolved, others have not. Most importantly, Congress has taken no action which
presents a “fully developed dispute between the two elected branches.” Thus,
the case continues not to be fit for judicial review.
Historically, the courts have been reluctant to act in cases involving issues of
national security and foreign policy. The enactment of the War Powers Resolution
in 1973 does not appear to have altered that situation. Seven efforts by lawmakers
since enactment of the Resolution effectively calling upon federal judges to put
traditional scruples aside have proven to be unavailing. In each and every case
brought to resolve the Presidential-Congressional impasse over the law and/or the
constitutional division of the war power since the WPR’s enactment, the courts have
concluded that the factors calling for abstention outweigh those in favor of
involvement. The courts have variously relied on the political question doctrine, the
equitable/remedial discretion doctrine, ripeness, mootness, and Congressional
standing. In the one ruling arguably on the merits, the U.S. Court of Appeals for the
First Circuit ruled that a discretionary grant of authority to the President to use force
under specified circumstances does not constitute an unlawful delegation of
Congress’ power to declare war.

The courts have made clear, however, that while formidable, none of the
aforementioned procedural barriers constitutes an insurmountable obstacle to
resolving the statutory or constitutional issues concerning war powers. All of the
opinions to date indicate that the barrier to the exercise of jurisdiction stems from the
posture of the cases, not some institutional shortcoming. If the courts are to be
believed, both statutory and constitutional war powers issues can be judicially
determined if a legal, as distinguished from a political, impasse is created. It has
been suggested that this can come about by Congressional action that directs the
President to take a particular action, or bars him from doing so, and by Presidential
noncompliance. Absent such an irreconcilable conflict, however, it seems unlikely
that the courts will venture into this politically and constitutionally charged thicket.