Abandoning the separation of powers in times of war

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

The war in Iran shows how far the United States has come from any semblance of enforcing checks and balances as to war powers. President Donald Trump obviously believes that he can do whatever he wants in this regard without needing congressional approval. And he has reason not to worry about the courts holding his actions in Iran unconstitutional, as the judiciary has abdicated any serious role in enforcing the Constitution in times of war. It was not always this way, but rather a development of the last century.

The genius of the Constitution’s design of separation of powers is that it is meant to require the involvement of two branches of the federal government for any major action. Congress and the president are both involved to enact a law while enforcing it requires participation of both the executive branch and the courts. Treaties are negotiated by the president but must be ratified by the Senate. Appointments to the federal bench or the cabinet are made by the president and must be confirmed by the Senate.

Whether to go to war is one of the most profoundly important decisions any nation can make. The Constitution requires two branches of government to be involved: Article I gives Congress the power to declare war and if so, Article II gives the president the power as commander-in-chief to wage it. James Madison wrote: “Those who are to conduct a war cannot in the nature of things, be proper or safe judges, whether a war ought to be commenced.”

Although it was understood that the president could defend the United States in case of an attack, the Framers believed that going to war was a choice for Congress to make. When the governor of South Carolina implored President George Washington to go on the offensive against the Wabash Indians, for example, Washington responded: “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they have deliberated on the subject, and authorized such a measure.”

In 1801, President Thomas Jefferson sent a small squadron of frigates to the Mediterranean to protect against possible attacks by the Barbary powers. He told Congress that he was “unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defense.” He said that it was up to Congress to authorize “measures of offense also.”

Early in American history, courts got involved in cases involving war powers.  Between 1798 and 1800, the United States was engaged in an undeclared naval war with France known as the Quasi-War. This conflict, which was fought primarily in the Caribbean, stemmed from French privateers seizing American merchant ships. Although there was no formal declaration of war, it was authorized by several federal statutes. It led to a few cases before the Supreme Court.

In the 1800 case of Bas v. Tingy, the Supreme Court recognized that Congress could authorize war both by a formal declaration and by passing statutes that recognized a state of “limited,” “partial,” or “imperfect” conflict. Justice Bushrod Washington stated that war could be of two forms: (1) “declared in form, . . . solemn, and . . . of the perfect kind” and (2) “imperfect,” undeclared but authorized.

A year later, in Talbot v. Seeman, the court emphasized the importance of Congress’ involvement in any type of war. Chief Justice John Marshall wrote for the court and stated that the “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 inquiry.” Congress may authorize “general hostilities, in which case the general laws of war apply to our situation, or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.” The court stressed that the “whole powers of war” were vested in Congress.

In the 1804 case of Little v. Barreme, Marshall established that even during wartime the president cannot authorize actions that violate acts of Congress. The court concluded that a U.S. Navy captain was liable for damages for seizing a neutral ship, despite orders from President John Adams, because Congress had not authorized that specific seizure.

The involvement of the judiciary in issues of warmaking continued through the 19th century. In the Prize Cases, decided in 1863, the Supreme Court, 5-4, upheld the constitutionality of President Abraham Lincoln’s blockading Southern ports in 1861 after the firing on Fort Sumter. Several ships and their cargo, owned by both British and Northern merchants, were seized as “prizes of war.” The Supreme Court ruled that although the president cannot initiate war, as commander-in-chief he could meet an armed rebellion with force. Although the closely divided court ruled in favor of Lincoln, all nine justices assumed that it was the judicial role to decide the question.

Today, however, any court challenge to Trump’s waging war in Iran without congressional approval surely would be dismissed as a so-called “political question”; that is, as better suited for the executive or legislative branches and therefore not for courts to decide upon. How did this change so dramatically? Although there is not space to explore this entire issue in a single column, perhaps the answer starts with the court’s decision in the 1936 case of United States v. Curtiss-Wright Export Corp. Because of concern that United States munitions manufacturers were arming both sides of a war in South America, Congress adopted a law that empowered the president to issue a proclamation making illegal further sales of arms to the warring nations. The case arose at a time when the court was invalidating laws pertaining to domestic affairs as impermissible delegations of legislative power to the executive.

The court upheld the delegation from Congress to the president to stop munitions shipments. But, in doing so, it also spoke of a fundamental difference between domestic and foreign policy. Justice George Sutherland, writing for the court, declared that “[t]he two classes of power are different both in respect of their origin and their nature. The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs.”

Sutherland maintained that the realities of conducting foreign policy require that the president possess much greater inherent powers than in the realm of domestic affairs. The court explained: “In this vast external realm, with its important, complicated, delicate, and manifold problems, the President alone has the power to speak or listen as a representative of the nation.”

Sutherland’s view is inconsistent with a written Constitution that contains provisions concerning foreign policy and delegates these to Congress. If Sutherland’s view were correct, there would have been no reason for the Constitution to provide any powers in the area of foreign affairs; all powers would exist as an inherent part of the presidency. The detailing of authority for conducting foreign policy thus rebuts the assumption that the president has complete control over foreign affairs simply by virtue of being chief executive.

But Curtiss-Wright has shaped how both presidents and courts have treated foreign policy, causing courts to give great deference to the president and refuse to hear challenges to his war making powers. During the Vietnam War, several dozen cases were filed in the federal courts arguing that the war was unconstitutional because there was no congressional declaration of war. In line with Curtiss-Wright, the lower courts dismissed the lawsuits as posing non-justiciable political questions (that is, as not for the courts to decide). A few of these cases came to the Supreme Court, but there never were more than three votes for certiorari so none were heard or decided – Curtis-Wright’s reasoning held sway. 

Since then, there have been lawsuits, including by members of Congress, challenging military actions in El Salvador, Iraq, and Libya. All have been dismissed as political questions without reaching the Supreme Court.

In Marbury v. Madison, Chief Justice Marshall explained that the Constitution exists to limit the government and that these limits are meaningless unless they can be enforced. The constitutional requirement for Congress to affirmatively declare war before the United States is involved in one now has become meaningless. At least until recently, presidents and Congress thought some form of congressional approval of a war was essential. President Lyndon Johnson sought and received congressional approval of the Gulf of Tonkin Resolution in 1965 authorizing military force in Vietnam. President George W. Bush sought and received congressional approval of the Authorization for Use of Military Force in 2001 before the wars in Iraq and Afghanistan.

There obviously has been no congressional approval of the war in Iran. Congress, divided almost entirely along party lines, failed in its effort do so. The courts should repudiate the legacy of Curtiss-Wright and enforce these constitutional provisions, just as they do all others. When Marshall wrote in Marbury v. Madison that “[i]t is emphatically the province and duty of the Judicial Department to say what the law is,” he did not say except in foreign policy or as to war powers.