The Contemporary Presidency: Judicial Restraint and the New War Powers

[I]t is the exclusive province of [C]ongress to change a state of peace into a state of war. (UnitedStates v. Smith 1806, 1230) [I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance. (Baker v. Carr 1962, 211-12) [N]one of the legislation drawn to the court's attention may serve as a valid assent to the Vietnam War. Yet it does not follow that plaintiffs are entitled to prevail. (Mitchell v. Laird 1973, 616). War Is a Three-Branch Question From the founding to 1950, war usually proceeded in constitutional order: congressional authorization followed by executive enforcement. Over that century and a half, federal judges adjudicated dozens of war-related disputes raised by private litigants that hinged on executive branch adherence to Congress's prior legislative direction. Today, presidents of both parties order new offensive military actions abroad without explicit congressional consent before or even during the conflict. Although House and Senate majorities eventually support these actions one way or another (bills and/or appropriations), on 10 occasions, members of Congress (up to 110 at a time) challenged presidential wars in federal court. These unsuccessful lawsuits deserve new attention because they reflect a quiet, but steady, three-branch constitutional revolution on war that has taken place in the United States, under both parties' watch and under a variety of foreign policy contexts. If all three branches now interpret congressional silence as consent, constitutional war processes have flipped, and the War Powers Resolution is a dead letter. This article offers three arguments about these developments, using case law, institutional archives, and interviews with members of Congress and their attorneys. (1) First, there is no constitutional reason for federal courts to demur on war powers suits filed by members of Congress, outside of decades of judge-made precedent. Federal judges and scholars are divided on whether courts should take these cases, not whether they can. Second, federal courts hold member--plaintiffs to a different standard than private interest litigants. Members of Congress must show supermajority disapproval of the president's unilateral actions whereas private war litigation once hinged on prior simple majority authorization of the action. Third, the legal postures of all three branches reflect deeply ingrained institutional habits, not partisan differences. Unlike other public policy areas, presidential war is not ideologically divisive. Reflecting this new normal, the United States has been engaged in a military campaign against the so-called Islamic State in Iraq and Syria (ISIS) since August 2014, with no Authorization for the Use of Military Force (AUMF). According to the Department of Defense, Operation Inherent Resolve has cost an average of $11 million per day for 450 days of operations, which destroyed or damaged over 16,000 targets. (2) While calling for new AUMF in the State of the Union Address in January 2015, and sending a proposal to Congress earlier that year, President Barack Obama and his administration maintained that the necessary authorization is already in place through the 2001 and 2002 AUMFs (against al-Qaeda and Iraq, respectively; Weed 2015b). While ISIS-related terrorist attacks in France have fueled some bipartisan criticism of administration strategy, a new AUMF is unlikely (Carney 2015). Despite repeated cries of "lawlessness" against the president on domestic policy actions, members of Congress have not pursued a lawsuit on the ISIS actions. Even if members did band together to file a suit that challenged the current ISIS campaign, it is unlikely to jump the formidable hurdles to member suits that federal courts have built over four decades. However, a House-sanctioned lawsuit against the Obama administration on enforcement of the Affordable Care Act (ACA) was recently granted standing to proceed on the merits regarding whether the administration spent money on ACA implementation that was not appropriated by Congress (see United States House of Representatives v. …