Atomic Bomb Testing and the Warner Amendment: A Violation of the Separation of Powers

Hundreds of thousands of American soldiers and civilians were exposed to radiation during atmospheric tests of atomic bombs between 1946 and 1963. An undetermined number of them are now ill or dead from diseases traceable to that exposure. In the early 1980s, some of the soldiers and civilians, or their survivors, brought damage suits against the private contractors that had helped the United States government carry out the tests. In 1984, Congress interfered with the judicial process by passing the Warner Amendment, which retroactively provided sovereign immunity to the contractors and required dismissal of the suits.

Professor Fletcher shows that the Warner Amendment was passed for the specific purpose of requiring dismissal of the suits, thereby protecting the government and its contractors from the legal consequences of acts long since completed. Professor Fletcher then argues that the Warner Amendment's intrusion into the judicial process violates the Separation of Powers.