The Law: Litigating the War Power with Campbell v. Clinton

Several recent scholars have suggested that federal courts have rarely decided cases involving the war power and that when they do, they invariably support the president. In a study on judicial review and the war power, Christopher May (1989) offered this analysis: "Before World War I the Supreme Court--with one short-lived exception--refused to pass on the validity of laws adopted under the war powers of the Constitution" (p. vii). He spoke of "the long-standing position that war powers legislation is not subject to judicial review" (p. 1). "The notion that the war powers were exempt from judicial scrutiny had a long and distinguished lineage" (p. 16). A similar perspective appears in a more recent study by Martin Sheffer (1999) on the judiciary's record of passing judgment on presidential war powers. Executive-legislative conflicts regarding war and peace "rarely find their way to the judiciary and, when they do, are rarely decided according to proper constitutional interpretation" (p. ix). Courts, "speaking generally, either postpone ruling or uphold, when they do rule, [presidential] exercises of the [war] power" (p. x). The courts "lie back, seeking to avoid having to rule on questions of the conduct of commander-in-chief (and war) powers, and when they are forced to rule, they usually uphold presidential action" (pp. x-xi). However, it has not been the practice of federal courts to regularly flinch from deciding war power and foreign-affairs questions. For most of American history, the judiciary has accepted and decided these cases, and they have recognized and upheld congressional prerogatives as much as, if not more than, presidential prerogatives (King and Meernik 1999). The Judiciary Decides War Power Cases Two early Supreme Court cases, in 1800 and 1801, involved the "Quasi War" against France. In Bas v. Tingy (1800), the Court left to Congress the judgment whether it wanted to fully declare war or to authorize an "imperfect" war (4 Dall. 37). Congress chose to do the latter in the war against France. In Talbot v. Seeman (1801), Chief John Marshall looked solely to Congress for defining the scope of the war power: "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" (5 U.S. 1, 28). What happened when a presidential decision in time of war collided with policies that Congress had established in a statute? Did the courts run for cover, designating the dispute a political question to be decided solely by the elected branches? No, the case was treated like any other dispute, to be resolved in accordance with legal and constitutional principles. Little v. Barreme (1804) involved a proclamation by President John Adams to seize ships, although his order exceeded the authority granted him by Congress. In a major ruling, Chief Justice Marshall said that national policy is defined by statute, not by conflicting executive pronouncements. Presidential "instructions cannot change the nature of the transaction, or legalize an act which without those instructions would have been a plain trespass" (6 U.S. 170, 179). Under this decision, military commanders who implement illegal presidential proclamations are liable for damages. Another major decision was United States v. Smith (1806), decided by a federal circuit court. Colonel William S. Smith, indicted under the Neutrality Act for engaging in military actions against Spain, claimed that his military enterprise "was begun, prepared, and set on foot with the knowledge and approbation of the executive department of our government" (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 activities by private citizens after Congress had specifically forbidden such actions. The court ruled that the Neutrality Act was "declaratory of the law of nations; and besides, every species of private and unauthorized hostilities is inconsistent with the social compact, and the very nature, scope, and end of civil government" (p. …