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Judicial Assessment

Separation of War Powers and The Political Question Doctrine

Due to the lack of clarity in the Constitution regarding the war powers

shared between the Legislature and Executive branches collectively, many

look to the Court for help determining their roles. The court can then

interpret the Constitution to the best of their ability. Unfortunately, the

framers in making the separation of the branches so clear, the Court has

troubles determining what they should allow of the other branches, or if they

have any say at all. The Court finds itself held back from defining the scope

the powers allotted to each branch due to fear of overstepping their own

boundaries. In the early times around the era of the Civil War, the court was

open to passing judgment on the other branches actions to their respected

powers. However, as time progresses, the Court decided on less and less

cases claiming them to be non-justiciable. The Courts overall approach in

deciding issues based strictly on whether the other branches are acting

within their powers under the United States Constitution and choosing to

decline to decide non-justiciable cases, has taken the correct approach in

doing what is apportioned to them under the Constitution.

The framers had purposely created a division of the powers of war and

foreign affairs between Congress and President. Under Article I section 8

Clause 11 of the Constitution, Congress has the power to declare War, grant

Letters of Marque and Reprisal, and make Rules concerning Captures on Land
and Water. Throughout section 8 Congress is given many other powers

regarding War, they can raise armies, suppress insurrections, provide and

maintain a navy and so on. The Constitution seems to make it clear;

Congress has the sole power in almost all war making decisions. The

Presidents powers concerning war are much less explicit. Article II Section 2

Clause 1, allows for the President to be Commander-in-Chief of the Army

and Navy of the United States. This is where the Judiciary branch finds most

of its issues deciding on war powers. How do we determine the scope of such

a limited provision? What does a Commander-in-Chief allow for? The

Constitution does put him in charge of Foreign Affairs, so drawing the line

between what can consist under duties of Commander-in-Chief and powers

solely belonging to Congress becomes blurry. In the Federalist Papers,

Hamilton attempts to clarify the powers of Commander-in-Chief, in doing so

he also makes a point to mention that the framers purposely made the

power of the President weak so he would not have complete rule like that of

the British King. It would amount to nothing more than the supreme

command and direction of the military and naval forces, as first General and

admiral of the Confederacy.(Hamilton, Federalist Papers) So as we can see,

there is a clear separation of power between the two branches that was done

so in order to prevent any one branch from getting too much power over the

other branches. In order for our nation to run smoothly in a time of war, the

two branches must collectively make decisions. These provisions require

cooperation between the President and Congress regarding military affairs,

with congress funding or declaring the operation and the President directing

it.(War Powers, The separation of powers was no mistake.

When it comes to the power to practice judicial review, the Court has

limitations to the kinds of cases in which it can decide on. The Court, under

the Constitution, is supposed to decide on all cases and controversies.

However, when it comes to the issue of the war powers, the court typically

will not decide on the case deeming it non-justiciable. We first get a sense of

the questions the Court are allowed to answer in Marshalls opinion in

Marbury v Madison. Here Marshal begins to lay down the scope of the power

of the court in practicing judicial review. Marshall claims that if a power is

wholly vested in the executive branch, the court may not decide because it

would be a plenary power that would raise a political question. The subjects

are political: they respect the nation, not individual rights, and being

entrusted to the executive in conclusive. (Marbury pg.7) This reasoning of

not stepping in and intervening and passing judgments on powers vested

only to the executive would be a breach on the separation of powers. We see

the Court use Marshalls reasoning in almost all cases that arise regarding

the presidents actions during and after the Vietnam era. After the Vietnam

War, in the case of Baker v Carr, Justice Brennan further examines the idea of

a political question. Brennan agreed with Marshalls reasoning, some issues

in their nature are just too far vested in the other branches to be considered

by the Court. Yet unlike Marshall, Brennan directly references the issue of

foreign relations posing as political questions because they are explicitly

stated in the Constitution to belong to the other branches. For the Court to

answer upon them would defy judicial application. (Baker pg.61) The most

crucial long lasting aspect of Brennans opinion was that he went beyond

Marshalls and for the first time, directly laid out the guideline of how to tell if

an issue is political in nature. There are six steps to deciding whether a

controversy is a political question, if it meets any of them the Court

determines it is out of their power to decide. Political questions show a plain

text commitment of the issue to another branch, have no judicial standing,

require non-judicial policy discretion, answering on the issue would

undermine another branch, answering questions to a political decision

already made or fear of embarrassment of the government voicing many

various opinions on the same issue. (Baker pg.61) If an issue meets any of

these requirements, the Court has to decline on deciding the issue. Although

there seems to be a whole lot of donts, Marshall in Marbury does make a

point to the cases in which the Court can pass their judgment on. The

question whether a right has vested or not, is, in its nature, judicial, and

must be tried by the judicial authority.(Marbury pg.7) While the Court will

decide cases regarding if the branches are staying within their powers, they

will typically decline to decide cases on the constitutionality of war and when

the war has begun and end. They try to primarily stay in the realm of only

deciding if they are acting Constitutionally within their powers. Because the

Constitution gives the president the power of being Commander-in-Chief, the

Court will usually stay away from deciding the Constitutionality of the
presidents use of military force. (Smith pg. 1528) We do however see during

the Civil War the court deciding on a case regarding the presidents use of

force, in the Prize Cases.

During the Civil war, the court decided on many cases without taking into

question whether they were justiciable or not. We see in the Prize Cases that

the Court deciding to use judicial review in a way it would never do again.

This case was the first and last time the Court would answer about the

nature of the Presidents war powers directly. Due to the lack of clarity on the

powers the Commanders-in-Chief actually possessed. There had been issues

speculating whether the president could use defensive measures before

gaining direct authorization from Congress. During 1861, Lincoln had ordered

a blockade of Southern ports, as a direct suppression of the Rebellion in the

South. Lincolns action was authorized previously in 1795 by an Act of

Congress, which allowed the President to stop an insurrection. In 1863

regarding Lincolns actions, The Prize Cases were heard by the Supreme

Court. Justice Grier offered the opinion of the Court in concluding, that the

president has necessary powers to take defensive measures prior to

congressional authorization under certain circumstances. If a war be made

by invasion of a foreign nation, the president is not only authorized but

bound to resist force by force. He does not initiate war, but is bound to

accept the challenge without waiting for any special legislative authority.

(Prize 1863) The Court goes way beyond in their decision than what the

Constitution allows the president to do. However, I feel the Courts overall
judicial review of the issue to be one of necessity. Although the power to

suppress Insurrections is a power vested to Congress, they had previously

delegated it to the President. The Constitution does not give the power to the

president to use defensive force, but the need to act on emergency

situations without waiting for Congressional approval is crucial. In addition,

the Constitution does call for the President to protect the Constitution. Article

II section 8 states the president must take an Oath or Affirmation before

assuming office that states, I will faithfully execute the Office of President of

the United States, and will to the best of my Ability, preserve, protect and

defend of the Constitution of the United States. (Us Const.) The majority of

the Court was correct in using the Presidents oath to preserve and protect

the Constitution and the necessity of defense measures in concluding

Lincolns actions as necessary and Constitutional. Although the Court agreed

with Lincolns actions of the blockade, three years later in Ex Parte Milligan,

they shot down his use of the suspension of Habeas Corpus. The Court never

decided on the Constitutionality of Lincolns actions, likely due to mootness,

but did declare that the suspension of Habeas Corpus was not valid. Justice

Davis stated that they suspension could not be justified because he is

controlled by the law, and has his appropriate sphere of duty, which is to

execute, not to make laws. (Milligan) The court in declining to deem

Lincolns actions justified was a necessary step to show after the Prize Cases,

that the President must still act within the sphere of his power. The
Constitution only mentions suspending writs of Habeas Corpus under Article

I, though it never mentions who has the authority to suspend them.

Presidents after the Prize Cases seemed to have assumed a widen range

of powers. They were taking on duties that were clearly out of their scope of

power, even as Commander-in-Chief. In 1952 in the Youngstown Sheet &

Tube Co. v. Sawyer, the Court makes it clear in limiting the President in his

powers. The Korean War was considered to be at peacetime due to the fact

that Congress had never declared it a war. In attempt to keep Steel

companies running for war efforts, after a strike from the Union, President

Truman seized the mills. Truman had informed Congress, who decided to

nothing about the Presidents actions. The Court was not apprehensive to

intervene and put a check on the Presidents powers. Both Justice Black who

delivered the opinion and Justice Jackson who concurred, clearly voiced their

opinion of where the President stands in taking actions, such as seizure,

during a time of Peace. The Presidents power, if any, to issue the order

must stem either from an act of Congress or from the Constitution itself.

There is no statute that expressly authorizes the President to take possession

of property as he did here. Nor is there any act of Congress to which our

attention has been directed from which such a power fairly

applied.(Youngstown pg.207) Here Justice Black is clear in his stating that

the president had no authority to act on this. The only thing that the

President can do is either what the Constitution allows him to, or powers the

Congress gives him with prior approval. The President to take seize of
property in a time where the state is not in war, is an act that is clearly

unconstitutional. The President is not subscribed some unlimited power to

act on whatever he thinks is justifiable, the act of creating laws is left to the

Congress while the President is merely allowed to Execute them. Even more

influential than Blacks opinion was Jacksons concurrence. Jackson does not

say the President is restricted to only exact words of the Constitution but

insists they do fluctuate with their conjunction or disconjunction with those

of Congress(Youngstown pg.210) Jackson furthers his opinion by the varying

degrees of power the President may have depending the relationship to

Congress. Jackson claims that The President when acting under authorization

of Congress is acting with his maximum amount of powers. No Court would

be willing to decide a case under this because it is Constitutional, the

President is possessing both powers he has vested to him and those of which

are delegated by Congress. The President acting without Congress

authorizing or denying, the President may only be acting on the powers

vested to him. There may not be clarity if he shares the power with

Congress, so acting alone would risk him being responsible for acting out of

his powers vested. And lastly, the president, when acting alone has the

lowest amount of powers. (Youngstown pg.210) Here, Jackson believed that

the President was acting under the third category. This leaves the president

acting very much out of the scope of his powers. Congress, by allowing the

president to act in such a way, is empowering the President in ways the

framers never attended. To allow the President to have such power can
actually be dangerous. The power of the President is supposed to be limited

for a reason. We may say that power to legislate for emergencies belongs in

the hands of Congress, but only Congress itself can prevent power from

slipping through its finger.(Youngstown pg.212) Although over all the

Youngstown case did not involve actual war powers, the Court did an

excellent job in limiting the powers of the President. However, they do make

a clear indication that they can only do so much in limiting the President.

They may only decide on cases when he is infringing on other branches

powers. As the strong words of Jacksons last quote stated, the Court can

only help keep the power away from the President so much, Congress must

take it upon themselves to withhold their powers. The Court was correct in

trying to limit the President, to the best of their ability, but it does require

other branches to participate. Chief Justice Vision offered a dissent in the

Youngstown case claiming, that the President has possessed such powers

before with no issues. If the President has any power under the Constitution

to meet a critical situation in the absence of express statutory authorization,

there is no basis whatever for criticizing the exercise of such power in this

case.(Youngstown pg.213)

I think Visions dissent is both correct to some extent but incorrect in

another. Yes, we have a need for the President to act prior to authorization to

emergency situations. That was established previously in the Prize Cases, but

it was stated that it was allowed for certain cases. Truman was acting in a

time of peace. A war was not declared officially and this seizing of the mill
clearly lay beyond defense of attacks power that he holds. This case could

have been constitutional maybe if we had been in a time of war. I agree with

the majority opinion, if we allowed the President to act under an unlimited

array of privileges not authorized, we face danger. The Presidents actions

disrespect the whole legislative process and the Constitutional division of

authority between the President and Congress(Youngstown pg.211) The

Court used the power of judicial review to directly show the violation of the

Presidents actions against the will of the other branches and Constitution

itself. The Court did an excellent job in explaining the scope of the

Presidents powers and declining to grant Truman what he claimed was

inherent powers. However, most cases that rise after the Korean War, during

the Vietnam War, were poised as political questions and the Court objected

to deciding them on judicial restraint grounds. Youngstown was the last case

for a long period of time when the court decided to step in and determine the

constitutionality of war actions.

After the era of the World War II, the court began to show a decline in

deciding cases, posing most cases as fostering non-justiciable issues. The

Court did not hear too many disputes between the President and Congress,

as a result they did not have to decide on cases because as previously

stated, the role of the Courts under Marshalls view, is to decide on powers

vested to the branches respectively. Typically when both Congress and the

Executive are both acting Constitutional together, the Court will most likely

not rule on it. (Korematsu pg.201) The Court feared over stepping its
boundaries by offering opinions about the actions of t he other branches

when not necessary to do so. In the light of the Vietnam War, the court was

faced with deciding the constitutionality of the Presidents actions. The court

declined because they concluded they all presented political questions and

other non-justiciable accounts. In Berk v. Laird, Berk sued for relief from

going to Vietnam on the fact that the Vietnam War had not been declared an

official war. The President had sent troops to Vietnam, but Congress had

never declared it a war. The court denied the relief of Berk stating, that it

posed as a political question. The court determined that Congress had

authorized the President to send troops. For the court to offer an advisory

judgment regarding the collective decisions between the President and

Congress would be overstepping their boundaries. If there is an authorization

between both of the branches, the Court is not supposed to offer advice.

Under Brennans outline of what consists in political question in Baker v. Carr,

the court examined that Berks case fell under the first classification of the

political question doctrine. There had been a textual commitment between

both the branches in the decision to send troops to Vietnam. (Berk 1970)

Under Article I and Article II of the Constitution, Congress can declare war,

and the President is Commander-in-Chief. For the Court to intervene would

be to intervene into powers that are purely vested to them. By declaring it as

a political question, the Court failed to examine if the President was acting in

his power. By failing to consider this issue, the court did not address the

separation of powers concerns at the root of Marshall's political question

doctrine. (Balfour, To state that the Court fails to recognize

the separation of powers, is to be blind to the fact that if the Courts were to

continue to decide on the case of Berk, it would be for them to breach their

separation of powers. Under Jacksons opinion in Youngstown, the President

in this case is at his highest amount of power. The President is acting under

authorization of Congress as well as all the powers he posses alone. If a

President is exercising a power of this nature, it is not for the Court to decide.

Although the President is at his highest power, it does not mean that he

necessarily is acting Constitutional. However, the Court declines in this case

to look at whether the President is actually acting under his powers under

Article I and The Take Care Clause. There should be some way for the

evaluation for the Presidents actions, though it should not be the Federal


There were many cases that arose during the Vietnam War, but the Courts

chose to decline decision of any of them. They felt they had lacked

competency in correctly deciding such matters. The President continued with

the undeclared War of Vietnam, but with Congressional authorization the

Court decided to stay out of it. This was again shown in Orlando v Laird. The

question the District Court was presented with was whether the Congresss

power to declare war was enough alone to allow the Court to pose it as a

political question. The District Court held that Congress plenary power to

declare war had left the Court to deem it unjustifiable. (Orlando 1971)

During the Vietnam War, the Court adapted a new way of looking into
Political Doctrines called the Ratification Theory. If it could be proven that

there was no communication or collaboration between the branches, the

court would not right away deem it a political question. It forced the Courts

to take a deeper analytic look into the cases bringing brought forth and

brought a new dynamic to the political question doctrine. (Firmage pg.94)

The Supreme Court itself however, never decided any issues involving the

Vietnam War. They declined review, leaving all Vietnam cases to be left to

the lower courts to decide. It was never known why the Court declined to

hear these cases, other than for non-justiciable reasoning. (Schoen pg.275)

After the Vietnam War, Congress took it upon themselves to limit the scope

of the Presidents war powers. Around the era of the Vietnam War many were

frightened the President had too much power. Although Congress had

granted the President the power during the Vietnam War, they feared his

control had grown dramatically. The President was making unilateral

decisions without consulting with Congress. This Congressional abdication

represented an unconstitutional delegation of congressional war powers to

the President.(Firmage pg.89) As a result in 1973 Congress created The War

Powers Act. The purpose of the Act was to make clear what war powers both

the President and Congress contain. This Act was a clear indication of the

check and balances that the branches can put on one another. The main

purpose of the Resolution was to establish procedures for both branches to

share in decisions that might get the United States involved in war.(War

Powers Act) The Act put in clear terms how the President must act with
regards to war and defense measures, even with his emergency powers. The

act did not only limit the President, it did give him more authority and clarity

to use his emergency and defensive powers. Though the Act was helpful to

clarify what the President can do legally, it made it harder for the Court to

mediate. With this textual commitment between the two branches, the Court

feels less incline to intervene.

Within the next few decades, the Court was faced with many cases that

challenged the Constitutionality of the Presidents war actions and foreign

affairs. The Court faced difficulty because to offer an opinion would not only

pose a political question but also, they deeply feared the President would

ignore their orders, resulting in a discrediting of the Court as a whole. While

they feared the possibility of being discredited, the Court again began to

insert more judgments based on the Presidents power. The President was

clearly violating the act of Congress and the Court felt it had to step in to

have some authority. When the District Court was faced with Dellums v Bush

in 1990, it still held it unjustifiable but established an opinion against the

presidents actions. Several members of Congress brought suit against

President Bush claiming he had not gotten Congressional authorization for

sending 500k troops to Iraq. District Judge Green offered the opinion of the

court and concluded the members of Congress did not have standing, the

case was not ripe and it presented a political question. The court found they

lacked standing due to they were not personally injured. The case overall

lacked ripeness because Congress had never asserted whether they were
going to vote for the war or not. In addition, they lacked standing because

there was no defensive attack from Bush at that point. Lastly, they

concluded the overall the case yet again, posed as a political question. Green

did explain however, It does not follow the judicial power is excluded from

the resolution of cases merely because they ay touch upon such

affairs.(Dellums pg.252) The major issue was the ripeness of the case.

Congress could have taken further action, or Iraq could have, changing the

overall verdict the court would have reached. The court has no hesitation in

concluding that an offensive entry into Iraq by several hundred thousand

troops could be described as a war, within the meaning of Article I Section 8

Clause 11. The clause directly gives Congress the power. However, the

verdict could not be reached for non-justiciable reasons.

Over the course of time, the Court did recognize the need to practice judicial

review. Unfortunately, with the judicial restraints placed on them by the

Constitution and precedents set before them, they were at a standstill. The

Courts decision deciding to decline almost all issues regarding war powers,

due to the political question doctrine has been one of much concern. I

believe that with the clear need for the separation of powers the court has

acted correctly within their jurisdiction to decline to get involved. Some

believe, that the court not answering questions about the Constitutionality of

the other branches, allows them to abuse the need for the separation that

our framers had in mind. If the Court could pass their judgments to the other

branches our whole government would be at a loss. The Court is supposed to

be a weak branch, partly due to the fact they are the only branch that is not

voted in to office. The framers never intended the Courts to have more

power over the other branches, especially enough to tell them when and how

to conduct their plenary powers. To have a Court that possesses that power

would create a tyranny. Judicial review without limit would result in the

degradation of democratic government and a corresponding rules by

judges.(Fimage pg.1)Justice OConnor adapted the view, if the Courts insert

too much judicial review into the war powers of Congress, it would belittle

Congress them so greatly, making their Federal powers overall meaningless.

(Hamdi pg.263) Limitations of the court to hear cases that provoke a political

question is in fact a good thing. It makes sure the court will not decide on

anything outside their vested powers that explicitly stated under Article III of

the Constitution.
Works Cited

Baker v. Carr (1962)

Balfour, Valeria. "He Political Question Doctrine: A Principled Judicial Determination of Non-

Justiciability or An Abdication of the Court's Power of Judicial Review?" INTRODUCTION.

N.p., n.d. Web. 08 May 2015.

"BERK v. LAIRD." . N.p., n.d. Web. 08 May 2015.



sid=854bacbf-e672-4329-a830-c59d46623fe6%40sessionmgr198&vid=1&hid=109." N.p., n.d.


Constitutional Interpretation Powers of Government. N.p.: Wadsworth Pub, 2012. Print.

"Credibility and War Powers." Harvard Law Review Credibility and War Powers Comments. N.p., n.d.

Web. 08 May 2015.

Dellums V Bush. 752 F. Supp. 1141 (1990). N.d. Print.



Fisher, Louis. "Judicial Review of the War Power." Presidential Studies Quarterly 35.3 (2005): 466-95.


"He War Powers Act. International Debates, 15420345, Sep2010, Vol. 8, Issue 6." N.p., n.d. Web.

Korematsu v US. (1944)

"ORLANDO v. LAIRD." ORLANDO v. LAIRD | N.p., n.d. Web. 08 May 2015.

Prize Cases. (1863)

Schoen, Rodric. A Strange Silence: Vietnam and the Supreme Court. Working paper. N.p., n.d. Web.

"War Powers." War Powers. N.p., n.d. Web. 08 May 2015.

Youngstown Sheet & Tube v Sawyer. (1952)

Ex Parte Milligan (1866)