Ludecke's Lengthening Shadow: Limits on the War Powers When Wars Don't End

Abstract:     
Courts have traditionally had excessively little to do with adjudicating inter-branch debates over the temporal extent of the war power, the starkest example of which is the Supreme Court's 1948 decision in Ludecke v. Watkins. Ludecke stands for the proposition that, regardless of the situation on the ground, a "war" does not "end" until the political branches say that it does.

This paper seeks to explain both the dubious doctrinal origins of this principle, and how it has manifested itself in the various cases arising out of the Bush Administration's response to the September 11 terrorist attacks, most notably the Supreme Court's decision last Term in Hamdi v. Rumsfeld. As the paper argues, although it is undeniable that terrorism will pose a threat to our national security continuously over the coming years and decades, the war powers the Constitution vests in Congress and the President were never meant to have indefinite operation.

Nevertheless, in light of the broad deference-based principles at the heart of Ludecke, and the Supreme Court's complete unwillingness to confront the potential indefiniteness of the struggle against terrorism in Hamdi, this paper suggests that an alternative, non-judicial remedy to the indefinite war problem is necessary, and explores legislative sunsets as one possible solution. Terrorism may indeed be a new kind of war, but if that is so, then the response should be a new kind of war powers - and most pointedly not the permanent exercise of the President's traditional, temporary authority to conduct traditional, temporary wars.

Keywords: terrorism, hamdi, national security, ludecke, padilla, al qaeda, sunsets, war, separation of powers, guantanamo

Accepted Paper Series