Litigating War: The Justiciability of Executive War Power

Courts frequently dismiss claims against the Executive’s use of the war power as being non-justiciable political questions. This lack of a judicial check has created a situation in which meaningful checks and balances on the war power are found only in the Executive Branch itself. But the Constitution places the bulk of war powers in the hands of Congress. Executive usurpation of Congress’s constitutional prerogative to initiate hostilities has significantly weakened the separation of powers.

In the aftermath of the Vietnam War, Congress sought to reassert its constitutional authority over war-making decisions by passing the War Powers Resolution. The Resolution created a private right of action for claims against the executive war power. But courts have dismissed virtually all of these claims as presenting political questions. The courts are incorrect.

Claims against the executive’s exercise of the war power have judicially discoverable and manageable standards and therefore do not pose political questions. To ensure that courts properly assess the justiciability of these claims, Congress should modernize the War Powers Resolution.