War powers, foreign affairs, and the courts: some institutional considerations.

• Author: Entin, Jonathan L.
• Position: Symposium: Presidential Power and Foreign Affairs

Abstract

As other contributions to this symposium make clear, much of the debate over presidential power in foreign affairs has focused on the dynamics of policy-making within the executive branch and about the relationship between the executive branch and Congress. Strikingly absent from the discussion has been the role of the judiciary. The courts have not been entirely silent, but they have played a diminished role in this area. Although it might very well be "the province and duty of the judicial department to say what the law is," (1) courts generally have not played, nor are they likely to play, a significant role in resolving the debate over the roles of Congress and the president in war and foreign affairs. Getting courts to address those issues requires overcoming various procedural and jurisdictional obstacles. If those challenges are surmounted, courts generally have shown considerable deference to the executive on the merits of these disputes even when ruling against the president's position. This essay concludes, somewhat tentatively, that a modest judicial role in this area probably is desirable because this leaves resolution of interbranch conflicts to the political process.

CONTENTS I. PROCEDURAL AND JURISDICTIONAL BARRIERS TO JUDICIAL REVIEW A. Standing B. Justiciability C. Timing 1. Ripeness 2. Mootness II. DEFERENCE TO THE EXECUTIVE ON THE MERITS III. THE BENEFITS OF POLITICAL RESOLUTION OF INTERBRANCH DISPUTES I. PROCEDURAL AND JURISDICTIONAL BARRIERS TO JUDICIAL REVIEW

To be sure, the Supreme Court has decided some well-known national security cases. Among them are the Steel Seizure case, Youngstown Sheet 8J Tube Co. v. Sawyer, (2) the Pentagon Papers case, New York Times Co. v. United States; (3) the Iranian hostage case, Dames ?J Moore v. Regan; (4) and some notable First Amendment cases arising out of World War I, such as Schenck v. United States (5) and Abrams v. United States. (6) Then there are the Japanese internment decisions during World War II, notably Korematsu v. United States, (7) as well as Ex parte Quirin, (8) which upheld the use of military commissions to try German agents who landed in the United States as part ofa sabotage mission. Most recently, the Supreme Court has addressed questions arising from the government's response to the attacks of September 11, 2001, in such cases as Hamdi v. Rumsfeld, (9) Hamdan v. Rumsfeld, (10) and Boumediene v. Bush. (11) These cases do matter, but they have not clearly resolved the constitutional and other legal issues that pervade the debate about presidential power and foreign affairs.

Beyond the limitations of the Supreme Court rulings, the judiciary probably will not contribute very much to the debate. Various procedural and jurisdictional obstacles make ir difficult for courts to address the merits of disputes about war powers and foreign affairs. Even if those obstacles can be surmounted, those who decry what they view as presidential excess should note that the judiciary typically has taken a deferential role in reviewing challenges to executive action.

1. Standing

   Because the judicial power of the United States encompasses only cases and controversies, (12) neither Congress nor the president could obtain an advisory opinion about war powers or foreign affairs, even if they were so inclined. To satisfy the requirement of standing, an appropriate plaintiff must allege a legally cognizable injury that was caused by the defendant and could be redressed by a suitable judicial remedy. (13)

   Most citizens will lack standing to challenge military actions or foreign policy decisions because they would be asserting a generalized grievance. This was the basis for rejecting a challenge to the constitutionality of the Vietnam War. The plaintiffs in Schlesinger v. Reservists Committee to Stop the War (14) claimed that members of Congress who were members of the military reserve were susceptible to undue influence by the executive branch, but the Supreme Court never reached the merits. The Court concluded that the plaintiffs lacked standing because they were asserting "an interest shared by ali citizens." (15)

   Although most citizens would be foreclosed from suing, perhaps a member or group of members of Congress might have standing. Legislators might try to assert that executive actions infringed their constitutional authority. This possibility seems to have been foreclosed by Raines v. Byrd, (16) which held that individual members of Congress lacked standing to challenge the constitutionality of the Line Item Veto Act. (17) The challengers, four Senators and two Representatives, (18) could not and did not allege that their votes against the measure had been "completely nullified"; (19) they opposed the bill and "simply lost." (20) Accordingly, these individual legislators lacked standing. (21)

   This reasoning suggests that congressional opponents of presidential military and foreign policy initiatives would lack standing to sue unless they could claim that their votes "would have been sufficient to defeat (or enact)" legislation blocking executive action. (22) Even that kind of showing might not suffice, however. A challenge to President Clinton's decision to participate in the NATO operations in the former Yugoslavia foundered because the congressional plaintiffs in Campbell v. Clinton (23) lacked standing. The U.S. District Court for the District of Columbia recognized that the more than two dozen congressional plaintiffs alleged that they had sufficient votes to defeat a resolution authorizing the president to conduct air strikes in Yugoslavia and also to defeat a declaration of war; both measures in fact were defeated, but the military, action went ahead anyway. (24) Nevertheless, the situation did not involve "a true 'constitutional impasse' or 'actual confrontation' between the legislative and executive branches" because "neither vote facially required the President to do anything or prohibited him from doing anything." (25) In fact, other congressional actions pointed in the opposite direction: a proposal to require the president to withdraw American forces from the Yugoslavian conflict also failed, and Congress later passed an emergency supplemental appropriation for military operations there. (26) The U.S. Court of Appeals for the District of Columbia Circuit affirmed the judgment that the congressional plaintiffs lacked standing, although the three judges on the panel needed four opinions to explain the result. (27)

   Presumably one or both houses of Congress would have standing to challenge executive action. The Supreme Court suggested as much in INS v. Chadha, (28) in which both congressional chambers intervened to support the constitutionality of the legislative veto when the executive branch declined to support it. The Court observed that the House and Senate were "proper parties" to advance legal arguments that the executive branch declined to make. (29) An institutional decision by either or both houses might confirm the existence of the "constitutional impasse" or "actual confrontation" between the branches that the district court in Campbell found lacking. (30)

   For standing purposes, a member of the armed forces who receives orders to report to a combat zone might well be able to challenge a military operation. Soldiers face powerful disincentives to confront authority, (31) but courts did find that some military personnel had standing to challenge the legality of the Vietnam War. (32) Moreover, a member who is prosecuted for refusing orders to participate in a conflict would be able to assert the illegality of the operation as a defense to charges of insubordination. (33)

   The Supreme Court reinforced the significance of the standing barrier in this area in a decision rendered as this article was going to press. Clapper v. Amnesty International USA (34) held that a group of lawyers as well as human rights and other organizations did not have standing to challenge the procedures for authorizing electronic surveillance of persons outside the United States for foreign-intelligence purposes. The plaintiffs had asserted legally cognizable injuries in fact relating to their fear of having sensitive communications monitored and the costly steps they had taken to avoid such monitoring, (35) those injuries were caused by the government's surveillance policies, (36) and that their asserted injuries could be redressed by an appropriate judicial order. (37)

   Ina 5-4 ruling, the Court held that the plaintiffs' alleged injuries were "highly speculative" and rested on "a highly attenuated chain of possibilities" and therefore were not "certainly impending." (38) Moreover, those injuries were not "fairly traceable" to the program that the plaintiffs were challenging, (39) because the plaintiffs could "only speculate" about whether any potential interception of their communications would occur under the aegis of the surveillance program at issue. (40)

   The Court conceded that its ruling might make it very difficult for anyone to challenge the surveillance program but noted that this was no basis for adopting a more permissive approach to standing. (41) Even if the Court had found that the plaintiffs had standing, such a ruling would not have resolved...