A Conveniently Unlawful War

Before congress approved the use of force against Iraq in October 2002, and before the war began, some in the Bush administration believed that the president had constitutional power as commander-in-chief to attack Iraq without congressional authorization. Their theory was unconvincing, presupposing, as it did, a concentration of power in the presidency that found scant support in the constitutional text, the intent of the Framers, prior case law, or subsequent custom and practice.¹  Still, the view lives on, and to its adherents it would no doubt seem but one small step to conclude that that same broad constitutional power would now permit the president to continue to wage war in Iraq even if Congress did not approve.

A small step, but a mistaken one.

For the view rests upon a theory of concurrent power that pertains only where Congress is silent — not where Congress has spoken and set limits, as it has regarding Iraq. As the Supreme Court ruled 200 years ago in three seminal war powers cases, when Congress sets limits, those limits control.

These three cases, brought during the undeclared naval war with France in the 1790s, invalidated the seizure of enemy shipping by U.S. naval vessels. Congress had authorized the use of force, subject to specified limits. The president exceeded those limits, the Court concluded, and his acts were struck down. Congress, it found, can both declare war generally and can authorize limited or “imperfect” war — war with defined objectives and restrictions. The president, the Court made clear, is obliged to respect congressional restrictions when Congress has authorized imperfect war. In an imperfect war, Justice Bushrod Washington said in the 1800 case of Bas v. Tingy, 4 U.S. 37 (1800),  those “who are authorized to commit hostilities . . . can go no farther than to the extent of their commission. ” The following year, in Talbot v. Seeman, 5 U.S. 1 (1801), Chief Justice John Marshall wrote that “[t]he 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 enquiry. ” In Little v. Barreme, 6 U.S. 170 (1804), Marshall wrote that “the legislature seems to have prescribed the manner in which this law shall be carried into execution, ” and the legislative limits therefore controlled.

These cases, decided in the earliest days of the Republic, have never been overruled. (One of the cases, Little, was relied upon by Justice Tom Clark in his concurring opinion in the Steel Seizure case² as providing the controlling rule of law.) They remain good law and they are directly applicable to Iraq. Congress did not declare war generally against Iraq but authorized an imperfect war with limited objectives. In the language of modern constitutional jurisprudence, measures exceeding the conditions of an explicit congressional authorization are “incompatible with the expressed or implied will of Congress,” and place the president’s commander-in-chief power at “its lowest ebb.”³ The Supreme Court has used this framework time and time again in analyzing separation-of-powers disputes.⁴ The upshot is of monumental importance: When Congress has spoken and set limits, the president cannot infer authority to wage war from the commander-in-chief clause. Authority to wage war must then come, if at all, from Congress. If the limits imposed by the Congress are exceeded, then the war stands without legal authorization. In the words of the Court: “Executive action under legislatively delegated authority . . . is always subject to check by the terms of the legislation that authorized it; and if that authority is exceeded it is open to judicial review.”⁵

Statutory authorization

The question, then, is what legislation is in force that delegates authority to the executive to wage continuing war in Iraq, and what limits that legislation imposes. Only two statutes exist from which the president might conceivably infer such authority to wage continued war in Iraq. The first is, of course, the 2002 Joint Resolution in which Congress approved military action against Iraq. The other is, perhaps, the Authorization for Use of Military Force, passed regarding al Qaeda in 2001 in the immediate aftermath of the September 11 attacks.

Enacted in 2002, the Joint Resolution granted authorization for the initial invasion of Iraq. It did so, however, in pursuit of two explicitly defined objectives. The Joint Resolution provided that “the President is authorized 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;
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.⁶

As a review of the record will reveal, both of these objectives have now been accomplished. The legislative history demonstrates that Congress saw the “threat posed by Iraq” as stemming from the government of Saddam Hussein, which no longer exists. Likewise, the authorization to enforce un resolutions was aimed at resolutions outstanding in 2002 — principally those relating to Iraq’s weapons of mass destruction program. Those un resolutions have been fulfilled. Congress, in short, in 2002 did not authorize an open-ended military involvement in Iraq. The president is without power to exceed the authorized objectives.

The continuing threat

The first purposeof the Joint Resolution has been fulfilled. The regime of Saddam Hussein and the threat posed by it are gone. Hussein is dead. A different government is in place. It does not possess or seek weapons of mass destruction. It does not support or harbor terrorists. There are, of course, terrorists present in Iraq today who pose a threat to American troops there. They may someday pose a threat to the general U.S. population. But Congress in 2002 authorized use of force against the old Iraqi government, not against groups unaffiliated with Saddam Hussein ’s regime (some of which actually opposed it).

The wording and the legislative history of the Joint Resolution both reflect this intent in two respects. First, the text refers to the continuing threat posed “by Iraq” — not a continuing threat from Iraq. The Joint Resolution is not, and was not intended to be, an open-ended authorization to use force against any future threat arising from any group that happens to be located within the territory of Iraq. Its sponsors had in mind a particular “continuing threat” — one emanating in some way from the Iraqi government. Second, the threat in question was “continuing,” i.e., it is one that existed before the Joint Resolution was adopted and would continue to exist afterwards, until it could be eliminated with the use of force. Threats that emerged after the enactment of the Joint Resolution therefore would not be continuing threats — they would not have continued from the period before use of force was authorized. Some threat may be posed today by entities that were not operating within Iraq before enactment of the Joint Resolution —  by, for example, al Qaeda in Iraq, but these are not among the entities against which the Joint Resolution authorizes the use of force.

This conclusion is borne out by the Joint Resolution’s legislative history. The House committee report’s description of “The Current Threat in Perspective” focuses directly on the threat posed by Iraqi weapons of mass destruction, although it also identifies support from the Iraqi government to terrorist organizations.⁷  The report declares that:

The current Iraqi government’s demonstrated capability and willingness to use weapons of mass destruction, the risk that the current Iraqi regime will either employ those weapons to launch a surprise attack against the United States or its Armed Forces or provide them to international terrorists who would do so, and the extreme magnitude of harm that would result to the United States and its citizens from such an attack, combine to justify action by the United States to defend itself.

The House committee report repeatedly uses the “Iraqi regime” as a synonym for “the Baathist government of Iraq led by Saddam Hussein.” The report traces the history of Iraqi aggression and obstinacy in the face of international demands for transparency and compliance with human rights law and international standards for inspection and monitoring of its wmd-capable facilities. The report notes specifically:

Iraq both poses a continuing threat to the national security of the United States and international peace and security in the Persian Gulf region and remains in material and unacceptable breach of its international obligations by, among other things, continuing to possess and develop a significant chemical and biological weapons capability, actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations. The continuing threat posed by Iraq is the motivation for the Committee’s favorable action on H.J.Res. 114.

The report highlights repeated Iraqi renunciations of its obligations under un Security Council resolutions, “brutal repression of its civilian population,” Iraqi “capability and willingness” to use wmd externally and internally (against Iran and its own Kurdish citizens), and continuous hostile acts towards the U.S., including the attempt to assassinate former President G.H.W. Bush in 1993. The report cites Iraqi attacks on U.S. and coalition aircraft enforcing the unilaterally-imposed no-fly zones over northern and southern Iraq.

These are the sorts of “continuing threats” that Congress had in mind in using the term in the 2002 Joint Resolution.

In the Senate, Senator Joseph Lieberman, one of the original co-sponsors of the Senate version of the text that became the Joint Resolution, characterized the authorization as follows:

[I]n responding to the threat to our national security posed by Iraq under the leadership of Saddam Hussein, it represents our best effort to find common ground to dispatch our constitutional responsibility and to provide an opportunity for the broadest bipartisan group of Senators to come together and express their support of action to enforce the United Nations resolutions that Saddam Hussein has constantly violated. . . .

In the House, Representative Richard Gephardt, a co-sponsor of the Joint Resolution, stated:

[T]his resolution confines [authorization] to the continuing threat posed by Iraq; that is, its current and ongoing weapons programs and support for terrorists. We do not want Congress to provide this or subsequent Presidents with open-ended authority to use force against any future threats that Iraq might pose to the United States that are not related to its current weapons of mass destruction programs and support for international terrorism.

At present, U.S. forces in Iraq are engaged in the joint use of force with Iraqi forces. President Bush has praised the leadership of Iraqi Prime Minister Nouri al-Maliki. It is hard to see how any “continuing threat” — a threat that has continued since before 2002 — is still posed by that government. Senator Richard Lugar was right. “The rationalization for the authorization to use force passed in 2002,” he said, “is obsolete and in need of revision.”⁸ The first clause of the 2002 Joint Resolution is no longer available as a source of authority to use force in Iraq.

Enforcing “relevant” resolutions

The second clause of the 2002 Joint Resolution further authorizes the use of force to “enforce all relevant United Nations Security Council resolutions regarding Iraq.”⁹ To the extent that any resolutions adopted before enactment of the 2002 Joint Resolution are still applicable, all have been honored by the Iraqi government; the United States surely is not contemplating the use of force to enforce them against that government. The current administration has argued that the current un mandate for the multinational force in Iraq — Security Council Resolution 1790 (2007) — is among the un resolutions contemplated in the Joint Resolution.¹⁰ The question, therefore, is the meaning of “relevant”: Does the term, as used in the second clause, refer to future United Nations Security Council resolutions — resolutions relevant to Iraq adopted by the Security Council since the invasion? The Joint Resolution, it is worth noting, does not set a pertinent time period; if it were construed as authorizing force to enforce a future Security Council resolution, there would be no reason, in other words, to believe that that authority would not continue indefinitely into the future, until the 2002 Joint Resolution is formally repealed.

In addressing this question, the House committee report specified exactly what constitutes a relevant Security Council resolution for these purposes:

This section states that Congress supports the efforts of President Bush to strictly enforce, through the United Nations Security Council, all Security Council resolutions adopted prior to the enactment of this Act addressing the threats posed by Iraq, or adopted afterward to further enforce the earlier resolutions [emphasis added].

Representative Gephardt explained that the “resolution and its accompanying report define the threat posed by Iraq as consisting primarily of its weapons of mass destruction programs and its support for international terrorism. They also note that we should continue to press for Iraqi compliance with all outstanding un resolutions. . . .”

The legislative history thus reveals that the second prong of the 2002 Joint Resolution was intended to authorize use of force for the enforcement of: 1) pre-existing Security Council resolutions; and 2) at most, future Security Council resolutions aimed at implementing the earlier resolutions and related to “the continuing threat posed by Iraq.” Security Council Resolution 1790 — the current un authorization for the Multinational Force — does not fall within the scope of either class. Nothing in Resolution 1790 even mentions resolutions that were outstanding in October 2002, much less provides for their enforcement.

Constitutional problems

Interpreting the 2002 Joint Resolution to authorize the enforcement of an unlimited set of future Security Council resolutions regarding Iraq would raise potentially serious problems regarding the delegation of legislative power, the appointments clause, and presentment requirements.

Constitutionally, the “delegation doctrine” precludes Congress from delegating power without providing an “intelligible principle” to guide its application.¹¹ Congress cannot enact a law that, in effect, permits others to enact a law. While the doctrine recognizes necessary flexibility in the functioning of modern government, it is not without limits. Applied internationally, an open-ended grant of power to the un Security Council to determine — within U.S. domestic law — the time, place, manner and objectives of U.S. use of force in Iraq would raise delegation concerns. The Constitution permits only 535 members of Congress to place the United States in a state of war — not the un ambassadors of Belgium, Croatia, and Indonesia.

A second constitutional problem concerns the Constitution’s Appointments Clause. Article II gives the president the power to appoint “officers of the United States” only with the advice and consent of the Senate. The Supreme Court has made clear that “any appointee exercising significant authority pursuant to the laws of the United States ” must be appointed pursuant to the clause.¹² The question arises whether the un representative of a state that is a member of the Security Council would be exercising “significant authority pursuant to the laws of the United States” if that individual were permitted, in casting a vote within the Security Council, to give the resulting resolution force and effect within the domestic law of the United States.

Construing the second clause as applying to future Security Council resolutions creates a third potential problem, concerning presentment. In INS v. Chadha, the Supreme Court implied that Congress cannot give a measure the force and effect of law unless it is presented to the president for his signature or veto. Yet that would be precisely the effect of a future-looking construction of the second clause: It would give a future Security Council resolution the force of federal law without presentation to the president for his signature or veto.

Taken alone, any of these constitutional difficulties might not prove fatal. Together, however, they are troubling. Without attempting to specify the tipping point at which these problems become controlling, their existence further supports the interpretation provided by the legislative history, for it is a settled canon of statutory construction that interpretations which raise constitutional doubts will be avoided.¹³

The aumf and Iraq

The only other law on which the president might conceivably rely in claiming that Congress has approved use of force in Iraq is the “Authorization to Use Military Force,” or aumf, enacted in 2001 immediately following the September 11 attacks on the Pentagon and World Trade Center. The pertinent provision of the aumf reads as follows:

[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.¹⁴

Two problems undermine the claim that the aumf< provides authority to wage war in Iraq. First, the aumf requires some nexus between the entity in question and the 2001 attacks on the Pentagon and World Trade Center. It is doubtful that “al Qaeda in Iraq” is the same organization that engaged in those attacks. The mere fact that both organizations share the same name is not legally sufficient to bring the Iraqi entity within the scope of the aumf. Second, even if the aumf were applicable to al Qaeda in Iraq, force is being used by the United States in Iraq against persons and entities not related to al Qaeda in Iraq. In May, 2008 Director of Central Intelligence Michael V. Hayden portrayed al Qaeda as essentially defeated in Iraq. Apparently fewer than 20 or 25 percent of U.S. casualties in Iraq can be attributed to al Qaeda in Iraq. Military operations directed at insurgents responsible for the remaining 75 or 80 percent of U.S. casualties are not authorized by the aumf. Perhaps for this reason, as recently as January 2007 the administration did not rely upon the aumf as a source of authority for U.S. military operations in Iraq. In response to a written question concerning sources of authority that was put to Condoleezza Rice by Senator Joesph Biden following her oral testimony, Secretary Rice cited only the 2002 Joint Resolution and the president’s constitutional authority, not the aumf.¹⁵

“Clear statement rule”

At most, therefore, it is debatable whether authority to continue to use force in Iraq is provided by the 2002 Joint Resolution. At most, it is debatable whether such authority is provided by the aumf. The War Powers Resolution’s “clear statement rule” establishes a default rule about debatability: When it comes to the monumental question whether a statute confers authority to use force, the Resolution provides, debatable authority is not enough. The War Powers Resolution requires that such authority be specific. Section 8(a)(1) provides not only that the statute in question must explicitly refer to the Resolution; it provides that it must specifically authorize the use of force. That section provides as follows:

Sec. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred ( 1) 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 situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. . . .¹⁶

Because serious ambiguities are present in both the 2002 Joint Resolution and the aumf if they are construed as authorizing the continued use of force in Iraq, it cannot be said that either statute “specifically” does so.

The War Powers Resolution’s clear statement rule also undercuts Ambassador David Satterfield’s claim that authority may be inferred from the fact that “Congress has repeatedly provided funding for the Iraq war, both in regular appropriations cycles and in supplemental appropriations.”¹⁷ The section explicitly provides that authority to introduce the armed forces into hostilities “shall not be inferred . . . from any provision of law . . . including any provision contained in any appropriation Act, ” without specific authorization and reference to the War Powers Resolution.¹⁸  No appropriations act meets either condition.

Thus, the War Powers Resolution precludes inferring authority to use force in Iraq from the 2002 Joint Resolution, from the aumf, or from any appropriations legislation.

It is true that in the waning days of the Clinton administration, the Justice Department ’s Office of Legal Counsel, looking to find some constitutional rationale for the congressionally-unauthorized air attacks on Yugoslavia, argued in 1998 that the strikes were in fact implicitly approved.¹⁹  It is also true that its opinion was without merit.

These and other constitutional arguments against the clear statement rule come down to two assertions. The first is that one Congress cannot bind a later Congress; legislative acts must be alterable when the legislature chooses to alter them. One legislature, the argument goes, is competent to repeal any law which a former legislature was competent to pass. New legislators cannot be bound by policies of earlier days. New legislators have a right to repeal by inference preexisting laws; the latest expression of the legislative will must prevail. Therefore, Congress remains free to authorize use of force implicitly, the words of section 8(a)(1) notwithstanding.

The difficulty with this argument is that it assumes that section 8(a)(1) is somehow “unrepealable.” Obviously it is not. Any time Congress wishes to repeal section 8(a)(1) it can do so. It can do so, moreover, using precisely the same procedure applicable to the repeal of any other statute. The Congress that enacted section 8(a)(1) thus did not in this sense “bind” later Congresses, for later congresses retain full discretion to alter that section if and when they choose to alter it. Any Congress wishing to authorize use of force implicitly can easily do so: It can either repeal section 8(a)(1) at the same time it enacts such implicit authorization, or it can simply provide by law that section 8(a)(1) does not apply to the legislation in question.

What this first challenge to section 8(a)(1) neglects to note is that the so-called “last-in-time doctrine” is not mandated or created by the Constitution. The doctrine is simply a canon of construction — a judicially-invented guideline for “finding” the will of Congress where that will is in doubt. In the event two statutes conflict, the courts simply assume, quite reasonably, that Congress probably intended the latter. But that assumption is always rebuttable. If the evidence is clear that Congress intended the former, the first in time will prevail, the object being, again, simply to give effect to the will of Congress. Like other canons of construction, the last-in-time doctrine therefore can be countermanded by Congress, which may intend that its intent be gleaned using a different canon of construction. (Legislatures regularly adopt their own canons of construction. State criminal codes, for example, typically subject all provisions to a canon that requires that their provisions be construed narrowly.) Section 8(a)(1) simply sets forth a canon of construction. That canon provides that, in specified circumstances, the intent of Congress should be gleaned not through application of the last-in-time doctrine, but through application of a first-in-time principle. There is no constitutional reason why the last must control if Congress indicates otherwise in a legislatively-prescribed nonsupersession canon, nor is there any reason why Congress must leave its intent to be guessed at by the executive or the courts.

The second argument against the constitutionality of the War Powers Resolution’s clear statement rule is that use of force may be authorized constitutionally by appropriations statutes and other laws that implicitly or indirectly facilitate that use. Therefore, it is contended, section 8(a)(1) would rob Congress of a constitutionally permissible method of authorizing war. This argument also proceeds from the presupposition that section 8(a)(1) is unalterable. But that presupposition is, again, unfounded: Congress has not disabled itself from exercising its right to authorize hostilities through the enactment of appropriations legislation if it wishes to do so. Indeed, section 8(a)(1) places appropriations laws on a footing no different from general legislation. Either method may be used if Congress chooses to do so. But each is subject to the canon of construction set out in section 8(a)(1). If Congress wishes to use appropriations legislation to authorize use of force, no impediment precludes it from doing that. The effect of section 8(a)(1) is simply to make clear the congressional intent that such authorization not be inferred unless Congress clearly intended to grant it. There is nothing novel in such a canon, which has, indeed, been used by Congress in other contexts in the realm of foreign relations.²⁰

If these two objections were correct, Congress, in enacting the War Powers Resolution, wrote empty words: Whatever the constitutional validity of the 60-day time limit, that requirement will virtually never apply because Congress will almost always be deemed to have enacted some implicit authorization contemplated by the Resolution. The objections proceed on the assumption that a disclaimer of authority cannot simply be stated once, as the clear statement rule does, but must be reiterated in every single piece of legislation from which authority might conceivably be inferred. Yet Congress, in enacting legislation, is deemed to be on notice as to what laws already exist; its intent is considered to embrace all acts in pari materia. Section 8(a)(1) is in effect a statement by Congress that it wants the nonsupersession canon to apply to every piece of authorizing and appropriating legislation insofar as that legislation might be read as approving the introduction of the armed forces into hostilities.

The War Powers Resolution’s clear statement rule serves a critically important purpose. It ensures that the decision whether to authorize armed force — the most significant decision Congress can make — will not be misinterpreted. Action that momentous calls for decisional clarity. That is all that section 8(a)(1) requires. Its enactment represented a triumph of congressional responsibility and accountability, and its validity ought not be doubted.

The politics of second-best

This, then, is the case against the constitutionality of continuing U.S. use of force in Iraq. It is not a case against the reasonableness of U.S. use of force in Iraq. Good public policy can be unconstitutional; bad public policy can be constitutional. Whether that use of force is wise or unwise, it is nonetheless unconstitutional, and it is the responsibility of Congress to make it lawful, perhaps subject to updated limits, or of the executive to halt it.

Neither, however, seems likely to happen at this point. Indeed, the fog of war being what it is, it ’s impossible to ascertain precisely when the line was crossed and when continued war became unauthorized and unlawful. Nevertheless, this situation has persisted for some time, and an obvious question arises: How is it that the executive can wage an unlawful war that neither Congress nor the courts are willing to stop?

The answer is as disappointing as it is complex — disappointing because it suggests that Madison’s system of setting “ambition against ambition” isn’t working, and complex because the answer involves an interplay of timorous politics and flaccid law that together generate mutually-reinforcing congressional passivity and judicial gutlessness.

Politically, both the executive and Congress prefer the status quo to the alternative that the other would prefer — and might well have the votes to get if new authority were enacted. The executive ’s first choice would of course be a new law that broadly authorizes use of force in Iraq and sets out few restrictions. But to ask Congress for such authority would mean not only conceding that congressional approval is necessary; it would mean running the risk that new and unacceptable restrictions will be added. Better, from the executive ’s perspective, to go with the status quo, since Congress can be counted upon to prefer posture over action and the judiciary can be counted upon to remain quiescent on issues of war and peace. A closer look at the internal legislative dynamics reveals why the executive ’s view is not unfounded.

Congress’s first choice fluctuates as a function of which bloc dominates in which house. On the question of use of force in Iraq, three blocs are in contention. The first consists of administration supporters, who believe that victory, however defined, is necessary and possible, who share the administration ’s concern about unwanted limits, and who are willing to confer new statutory authority on the president to prosecute the war with maximal flexibility in both objectives and tactics. A second, “out-now,” bloc distrusts the executive and would give it no new authority except what is needed to effect an expedited withdrawal. Many members of this bloc, however, doubt the possibility of drafting a sufficiently tight withdrawal directive and fear that even seemingly narrow legislative authority to pull out would inadvertently permit unwanted offensive military operations. A third, “orderly withdrawal,” bloc in Congress would prefer conditional authority leading to a diminished U.S. presence over a more extended period, coupled with broader approval to conduct combat operations aimed at political stabilization, border integrity, and terrorism control. Yet this bloc, too, doubts that it can garner the requisite votes.

Within all three blocs are many senators and representatives who understand the Constitution ’s system of separated powers and are devoted to vindicating it. Still, all three have been chastened by the political penalties paid by colleagues who voted the wrong way earlier — against the first Gulf War, or for the second. They thus have little motivation to place their careers on the line with another vote; “cheap talk” is less risky than voting. As a result, legislators have an incentive to focus not upon current legality or illegality, but upon past mistakes, misjudgments, and misrepresentations that are, for all practical purposes, irreversible. Within each bloc, the consequence is that legislators ’ second-best choices win out, and an unlawful war continues to be fought because the alternative for each is politically riskier. Ambition does triumph on the Hill, but not ambition to check the abuse of executive power; what prevails is ambition to stay in office, ambition to elude accountability, ambition to look tough but to leave plenty of room for backtracking should the show of toughness prove misdirected.

The least courageous branch

John marshall is famous for having fathered a system of judicial supremacy, reflected in his ringing assertion in Marbury v. Madison, 5 U.S. 137 (1803) that it is “emphatically the province and duty of the judicial department to say what the law is. ” As Bas v. Tingy, Talbot v. Seeman, and Little v. Barreme all reveal, Marshall and his colleagues did not hesitate to decide cases bearing upon war and peace. But American courts today say little on such matters, strikingly less than did their Federalist predecessors, whose power was more recently claimed and more precariously held. The courts today routinely decline to hear war powers cases for three doctrinal reasons, any one of which would likely prove fatal to an effort to achieve judicial redress in the war in Iraq.

The first is the political question doctrine. The reach of the doctrine was summarized by the Supreme Court in the 1962 reapportionment case of Baker v. Carr. It said:

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 the 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.²¹

A dispute that falls into one of more of those categories will be dismissed in the belief the courts should leave its resolution to the political branches. In recent decades, the courts have not reached the merits in any war powers controversy, and the political question doctrine has been a frequent rationale for abstaining.

This is lamentable, because it undercuts the American commitment to a rule of law enforced by independent courts against all law violators, high or low. John Marshall well knew that some cases present political questions not appropriate for adjudication, something he noted explicitly (and only in passing) in Marbury. Yet his Court decided Bas, Talbot, and Little without ever noting that any of these cases might have presented a political question; the possibility was not even worth addressing. And with good reason: In such cases, arguments for the political question doctrine are in fact arguments for unfettered executive hegemony. The executive always wins when it can present Congress and the country with a fait accompli, using force free of judicial review. Such abstention, it is true, keeps the courts out of the political hot-seat and in a sense protects their legitimacy. But it is worth remembering that political legitimacy is a double-edged sword: Not deciding a case that presents a manifest constitutional violation can undermine public respect for the courts even more than deciding it. When the political system is incapable of righting itself and re-establishing an equilibrium of power, the courts ’ legitimacy is enhanced by intervening.

A second ground on which courts dismiss war powers cases is standing. Under longstanding doctrine, to bring a legal action one must suffer concrete, personal injury that can be traced to the challenged violation of the law. In war powers cases, individuals who can allege such injury are few. Private litigants, such as the plaintiffs in the Marshall Court ’s three prize cases, seldom can allege direct, personal harm that can be traced to a constitutional violation. Members of the armed forces who are ordered to a theater of combat do suffer personal injury, but of course no case or controversy arises unless they challenge the legality of their orders; finding a soldier willing to do so is not always easy, for obvious reasons.

One way of overcoming this difficulty has been to find a member of Congress to serve as a plaintiff in a war powers case. Until 1997, the federal courts were willing, at least occasionally, to find that members of Congress had an interest in protecting their right to vote on matters entrusted to their respective chambers by the Constitution. The theory was that in such circumstances a congressional plaintiff suffers an unconstitutional deprivation of his constitutional duties or rights. This injury was thought to differentiate the representative or senator from members of the general public, who had no such entitlement and therefore suffered no such injury. In 1997, however, the door to congressional standing was slammed shut by the Supreme Court in Raines v. Byrd, 521 U.S. 811 (1997), in which it held that Senator Robert Byrd and several colleagues lacked standing to challenge the constitutionality of the Line Item Veto Act of 1996.

This retrenchment, too, is unfortunate. Members of Congress sometimes are the only individuals who can allege sufficient injury to litigate a constitutional violation. They can do so only because of their unique legislative role, which is undermined when the executive fails to respect a constitutional requirement of legislative approval. To deny legislators standing in such cases is, too often, to ensure that the laws or constitutional provisions at issue in those cases will never be enforced by the courts. The executive rather than the courts then becomes the final arbiter of the meaning of the Constitution.

Finally, the doctrine of ripeness recently has taken on an enlarged role in blocking access to the courts to challenge war powers abuses. Ripeness relates to timing; a case is considered not ripe for review if its factual development would make judicial resolution premature. In war powers cases, this can mean that a case is not ripe unless actual “adverseness” arises between Congress and the president. Dellums v. Bush is an example.²² In it, 56 members of Congress asked a federal district court in 1990 to issue an injunction ordering the president not to use offensive force against Iraq without prior congressional consent. The court declined. “It is only if a majority of the Congress seeks relief from an infringement on its constitutional war-declaration power, ” the court held, “that it may be entitled to receive it.”²³

This approach has a superficial attractiveness; why, after all, can’t Congress fend for itself? Why should the courts confront the president when Congress itself is not willing to? The answer is that the theory in effect requires Congress to re-enact a pre-existing constitutional prohibition over a presidential veto. It hardly makes sense to permit judicial enforcement of a basic constitutional check, such as the war power, only when Congress can muster a two-thirds vote to establish a predicate for doing so. The real issue is judicial independence: The courts are not independent guarantors of constitutional regularity if they are willing to exercise that role only when receiving a statutorily re-enacted copy of a constitutional restriction, appended, in effect, with a note that Congress really means it.

This obsequious judicial posture, coupled with congressional paralysis, creates a negative feedback loop. Judicial deference to the executive discourages members of Congress from speaking out. When judges give the impression that violation of the Constitution is of no consequence, legislators feel less pressure to address the violation. When legislators fail to address it, the courts in turn retreat to the “ripeness” doctrine to adjudicate the matter, and underscore the message that the constitutional violation is of little consequence. The result is an ever-expanding reach of executive power, trenching upon the provinces of both the legislature and the courts, that renders the Constitution ’s most majestic check — its transfer of the war power “from those who are to spend to those who are to pay,” in Jefferson’s words — unenforced and unenforceable.

Substituting reason for law

All three branches are therefore quietly complicit in subverting the application of the rule of law to the use of force. Their members ’ occasional protestations to the contrary, each branch’s interests are served by substituting reason, as they see it, for law. The steady subsidence of bedrock legal principles is of course not their aim; it is not venality or malice that drives constitutional erosion through institutional inertia. Members of each branch act in good faith in convincing themselves that their motivations reflect sound public policy. But the reality is that, in the end, each branch resists subjecting the use of force to the rule of law; each, at bottom, would prefer that war-making be unregulated.

Among the many sorry aspects of that preference is that, because the Constitution explicitly regulates the use of force, American sincerity in promoting the rule of law internationally is undercut. All three branches would doubtless agree that the hand of the United States ought to be strong in dealing with other countries. But the American hand is weakened when the U.S. is, and is seen to be, hypocritical. The least the United States can do to promote the rule of law is to lead by example. It is unseemly for the world ’s leading proponent of the rule of law to fight a war that is unlawful under its own Constitution. If the rule of law is to be respected, the use of force by the United States in Iraq must either be statutorily re-authorized or halted.