The Contemporary Presidency: Judicial Restraint and the New War Powers

Abstract

Over the past four decades, members of Congress have filed 10 lawsuits challenging military actions abroad that were ordered or sustained by presidents without prior legislative consent. In dismissing these cases, federal courts told the plaintiffs to use their legislative tools to show disapproval of the actions already in progress. Under this logic, the House and Senate must have a veto‐proof supermajority to end an existing military engagement before a case can be heard on the merits. These precedents contrast with previous war powers cases initiated by private litigants, which focused on prior simple majority legislative authority for presidential action.

Could President Trump Rely on Legal Advice to Order the Offensive Use of Military Force at His Discretion?

“…In the other camp, scholars emphasize the need to set limits on executive power, holding the president accountable to the rule of law (Farrier 2016; Fisher 2014; Pfiffner 2008; Pyle and Pious 2010; Sollenberger 2014). These scholars are sometimes pejoratively described as “pro-Congress,” with the implication that they subjectively favor Congress over the president (Zeisberg 2013, 11).…”

“…For the system of checks and balances to work as designed, each branch of government must be engaged. When it comes to war power, Congress is best positioned to limit presidential power, especially because the courts have been reluctant to play a role (Farrier 2016). The 2013 Syrian episode provides recent evidence that Congress can be effective: President Obama was poised to order military action against the Assad regime but changed course when more than 140 members of Congress signed a letter making clear that, under the Constitution, the president could not take this action without congressional authorization (Edelson 2016, 97).…”

The Law: Presidential Signing Statements and Coordinate Constitutional Interpretation

“…Some suggest that this gives the president a unique advantage insofar as he operates as a unitary executive and Congress must expend tremendous energy to assemble and maintain majorities in both houses. “Divided government, partisan gridlock, and a dysfunctional political culture may prevent Congress from using normal legislative processes to challenge presidential actions, but does that mean any president can act unilaterally until disapproved?” (Farrier , 389).…”

“…Individual members of Congress may seek to challenge the constitutionality of executive action. But the Court has argued that such challenges lack standing (see generally Farrier ). Citizens, states, or other private parties can challenge the constitutionality of executive action by arguing that it impinges upon statutory or constitutional rights.…”