Article I of the Constitution empowers Congress to “declare war,” and the War Powers Resolution requires that the executive branch “consult with Congress before introducing United States Armed Forces into hostilities.” Yet presidents of both parties have repeatedly plunged our nation into war while neglecting Congress’s constitutionally mandated role. In 2011, for example, the Obama administration intervened in Libya without prior congressional approval—and failed to turn to Congress for approval even though the conflict extended past the 60-day deadline in the War Powers Resolution to remove U.S. forces from unauthorized hostilities. The Trump administration assassinated the senior Iranian General Qassem Soleimani and an Iraqi security official without first consulting Congress. Both the Trump and Biden administrations carried out bombing campaigns in Syria without seeking congressional assent, as well. Indeed, Congress has not voted to authorize the use of military force since 2002, yet a 2019 study found that Americans were actively engaged in military activities in 80 countries, with combat operations in 14. In short, there has been little democratic accountability for the wars the United States has waged over the past two decades.
In the past, members of Congress have attempted to respond to what they regarded as illegal wars by suing the executive branch to halt the hostilities. Yet courts have uniformly dismissed these cases, relying on justiciability doctrines—especially standing and the political question doctrine—to avoid reaching the merits of the cases. An earlier Just Security article examined how the limits on standing might be overcome. This article examines the political question doctrine, arguing that Congress could act to limit courts’ recourse to the doctrine, making it more likely that they will reach the merits of their challenges.
Political Question Doctrine
The political question doctrine is animated by the idea that certain questions are more fit for resolution by the political branches than by the judiciary. It thus limits courts’ ability to decide issues that are inherently political, rather than legal. The Court established the modern doctrinal test in Baker v. Carr (1961), which outlines six different factors to determine if a case presents a nonjusticiable political question. If any of the factors is met, a political question exists.
The District Court for the District of Columbia and the D.C. Circuit have dismissed war powers suits as presenting political questions under four of the six Carr factors. In Crockett v. Reagan (1982), the district court held and the D.C. Circuit affirmed that there was a “lack of judicially discoverable and manageable standards for resolution” in a suit challenging President Reagan’s unilateral decision to send military aid and troops to El Salvador. In Sanchez-Espinoza v. Reagan (1983), the district court dismissed a suit contesting the Reagan administration’s support of paramilitary operations in Nicaragua, for judicial resolution would “express[] a lack of the respect due coordinate branches of government.” (The D.C. Circuit affirmed, but primarily on other grounds.) In Lowry v. Reagan (1987), the district court set aside a challenge to Reagan’s unilateral initiation of escort operations of Kuwaiti oil tankers during the Iran-Iraq war, because judicial resolution would risk “the potentiality of embarrassment . . . from multifarious pronouncements by various departments on one question.” The D.C. Circuit affirmed, per curiam, in an unreported decision. Finally, in Smith v. Obama (2016), the district court dismissed a suit seeking to declare Operation Inherent Resolve illegal (the counter-ISIL campaign), for “decision-making in the fields of foreign policy and national security is textually committed to the political branches of government.” (Michael Glennon wrote in Just Security why he thought the doctrine was misapplied. The D.C. Circuit affirmed on other grounds.)
The willingness of the courts to dismiss war powers cases on political questions grounds stands at some odds with the Court’s decision in Baker, which rejected the proposition that “all questions involving foreign relations are political questions.” In Baker, the Court recognized that not “every case or controversy which touches foreign relations lies beyond judicial cognizance.” The Supreme Court underscored this point in Japan Whaling Association v. American Cetacean Society (1986). There it decided that when a case implicates foreign affairs or national security, courts may adjudge issues that do not “revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” This includes courts’ “authority to construe treaties and executive agreements,” and the duty to “interpret[] congressional legislation,” despite “the premier role which both Congress and the Executive play in [foreign relations]” and even if doing so “may have significant political overtones.”
Courts weren’t always squeamish about deciding cases about the use of force on the merits. The Supreme Court decided that President Lincoln had the power to order seizures of vessels bound for confederate ports before Congress formally declared war in the Prize Cases. Bas v. Tingy, which concerned the Quasi-War with France, turned on the Court’s determination that “hostilities . . . subsist[ed] between [the] two nations,” evinced by Congress’s authorization of hostilities, suspension of commerce, dissolution of a treaty, and raising of an army. The Court similarly decided the President lacked authority to seize ships during the Quasi-War in Little v. Barreme.
How Congress Might Overcome the Doctrine
War powers reform is once again on the agenda. As the debate unfolds, Congress should consider including in reform legislation instructions to the courts not to apply the prudential political question doctrine. That would make it more likely that illegal wars could be effectively challenged in court.
This approach has a solid legal foundation. While Congress cannot instruct courts to disregard doctrines that arise directly from the Constitution, it can instruct them to disregard judge-made prudential doctrines. This includes prudential exercise of the political question doctrine.
In his concurrence in Goldwater v. Carter (1979), Justice Powell explained that while certain factors of the political question doctrine arise from Article III of the Constitution, other factors “rest . . . on prudential concerns calling for mutual respect among the three branches of Government.” Justice Souter reaffirmed that “the political question doctrine . . . deriv[es] in large part from prudential concerns” in his Nixon v. United States (1993) concurrence. The D.C. Circuit, codifying this distinction in National Treasury Employees Union v. U.S., clarified that the political question doctrine is “composed of prudential elements which ‘Congress is free to override,’” and “core component[s]” which are “essential and unchanging . . . requirement[s] of Article III.”
As Justice Sotomayor explained in Zivotofsky v. Clinton (2012), there are several circumstances under which the political question doctrine “address[es] circumstances in which prudence,” not the Constitution, “may counsel against a court’s resolution of an issue presented.” These include when judicial resolution would risk “embarrassment from multifarious pronouncements by various departments on one question” or express a “lack of the respect due coordinate branches of government.” The D.C. Circuit has adopted this framework, repeatedly referring to these as “prudential factors” or “prudential considerations” of the political question doctrine. Thus, to the extent courts would dismiss a war powers lawsuit on either of these grounds (as the courts did in Lowry v. Reagan and Sanchez-Espinoza v. Reagan), Congress can instruct courts not to apply the political question doctrine and decide on a war’s legality.
This approach is, admittedly, not a panacea. Courts have not only thrown out war powers litigation on these prudential grounds: the district court dismissed Smith v. Obama because the war powers are “textually . . . commit” to “a coordinate political department,” and dismissed Crockett v. Reagan because there is a “lack of judicially discoverable and manageable standards for resolving” over war powers disputes. These two factors arise from Article III of the Constitution. As a consequence, Congress cannot instruct the courts to disregard the political question doctrine altogether.
The Supreme Court’s decision in Zivotofsky, however, offers a promising precedent. While the lower courts found that the underlying dispute presented a political question, the Supreme Court made clear that “this case ask[ed] the courts to determine only whether Zivotofsky can vindicate his statutory right . . . to choose to have Israel recorded as his place of birth on his passport.” There was no “textually demonstrable constitutional commitment” because “it is ‘emphatically the province and duty’ of the Judiciary to determine the constitutionality of a statute.” Nor is there “‘a lack of judicially discoverable and manageable standards for resolving’ the question before the court” when the issue is “the more focused one of the constitutionality of” the statute, for “[m]aking such determinations is a familiar judicial exercise.” Similarly, if Congress authorizes members to sue on behalf of the body, courts would not be opining on an issue that implicates Article III political question concerns. Instead, courts would be undertaking the “familiar judicial exercise” of statutory interpretation and determining whether the statute has been faithfully implemented.
Conclusion
Congress has begun to take steps to reclaim its war powers and put to rest unfettered combat abroad undertaken unilaterally by the executive. As reform unfolds, Congress should consider when and how the laws it enacts will be enforced and take steps to empower members of Congress to effectively challenge illegal wars in court.