Presidential War Power: Do the Courts Offer Any Answers?

Abstract:     
This article surveys the history of federal jurisprudence related to war making decisions. In so doing, it seeks to refute the perception that such decisions are conclusively beyond the realm of judicial review as a result of the political question doctrine of judicial restraint. Instead, the survey of these decisions demonstrates that the more relevant doctrine is that of ripeness. Accordingly, the article asserts that in the appropriate circumstances, the courts could intervene in a war powers dispute between the two political branches. However, such intervention would only be possible in response to express congressional opposition to a presidential war making decision, and only then if the President were unable to offer a legitimate theory of defensive necessity.

Number of Pages in PDF File: 55

Keywords: President, War Powers

Accepted Paper Series