"Where-ever law ends, tyranny begins. . . - John Locke'
The Constitution of the United States divides the nation's warpowers between Congress and the President. Specifically, the Constitution vests Congress with the legislative power to declare war and the President with the executive power to conduct war. Recently, however, the President has dominated this constitutional framework. Congress has largely acquiesced to the President unilaterally engaging the nation's armed forces abroad, and as a result, the President now has quasi-unilateral war-making authority.
Notwithstanding the War Powers Resolution, Congressmen and service members alike have sought judicial intervention to enjoin the President from unilaterally engaging the nation's armed forces. They have argued that such unilateral engagement infringes upon both the WarPowers Resolution and Congress's exclusive constitutional authority to declare war. However, courts have increasingly dismissed these suits based upon the political question doctrine, which instructs that certain issues afe nonjusticiable because they are better left for either Congress or the President to resolve. Consequently, courts implicitly rule in the President's favor when they invoke the political question doctrinebecause the parties are left status quo ante.
In light of such judicial deference, this Comment will argue that federal courts must fulfill their Article III duties and preserve the constitutional limits of the President's war-powers. Although such power undoubtedly implicates political matters, the underlying issue is fundamentally a question of constitutional law. Moreover, our government was founded upon a democratic system of checks and balances. Therefore, because Congress is inept to protect its war-making authority from the President, courts must intervene and determine when the President has exceeded the scope of his constitutional authority.
Ahmed, Kazi S.
"The President vs. Some Old Goat: The Justiciability of War-Powers,"
Penn State Law Review: Vol. 123
, Article 13.
Available at: https://elibrary.law.psu.edu/pslr/vol123/iss1/13