Judicial Rulings on the War Power

Publication Date: August 1999

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Government

Type:

Abstract:

The Constitution empowers Congress to “declare war,” but there is broad disagreement on the scope of presidential power to conduct undeclared wars. In addition to wars that have been declared or specifically authorized by Congress, Presidents have initiated a number of other military operations without either seeking or obtaining congressional approval. This report analyzes the disputes over the war power that have been submitted to the courts.

Dozens of war-power issues have been litigated over the past two centuries. Although federal courts have generally avoided most of them by relying on various threshold tests (such as standing, mootness, ripeness, and political questions), it is a misconception to say that the judiciary generally upholds presidential action. On a number of occasions the courts have struck down unilateral presidential actions, challenged and rejected ambitious theories of executive power, and upheld the prerogatives of Congress.

Of the cases that the courts have decided to sidestep, it is usually the case that Congress—as an institution—has failed to confront the President with restrictive legislation. Instead, a handful of lawmakers go to the courts to seek relief. Under these conditions, the courts have made it plain that the judiciary will not referee a case unless the two branches are in irresolute conflict and the entire Congress has exhausted all the institutional remedies available to it.