The 'Enemy Combatant' Cases in Historical Context: The Inevitability of Pragmatic Judicial Review

80 Pages Posted: 16 Oct 2009

See all articles by Robert J. Pushaw

Robert J. Pushaw

Pepperdine University - Rick J. Caruso School of Law

Date Written: 2007


In this article, Professor Pushaw analyzes generally the U.S. Supreme Court’s jurisprudence regarding the President’s war powers authority and applies his analysis to the recent “enemy combatant” cases. Professor Pushaw asserts that the quest for a coherent jurisprudential framework is futile because the Constitution’s text and history do not clearly reveal any single proper way to reconcile judicial review with was powers. This uncertainty has led the Court to eschew black-letter rules in favor of a flexible approach that reflects political and practical considerations. Professor Pushaw argues that judicial discussions of statutory and constitutional meaning in this arena tend to mask three impressionistic judgment calls. First, the Court evaluates the gravity and immediacy of the military crisis, as well as the necessity for the President’s responsive measure. Second, the Justices consider the egregiousness and magnitude of the legal violation. Third, the Court calculates the likelihood that its orders will be obeyed, which depends primarily upon the President’s political strength and secondarily upon whether the crisis is ongoing or has passed. This last criterion is never articulated but often seems pivotal. In short, the rigor of judicial review waxes and wanes depending upon the context of each case.

Professor Pushaw concludes by asserting that the Court’s jurisprudence is largely appropriate, with one exception. When a politically powerful President has made an irreversible decision in seeming violation of a particular constitutional provision because he believes doing so is essential to the war effort, and when he will likely defy any judicial order to desist, the Court should not affirmatively legitimate such conduct, such as in Roosevelt’s incarceration of Japanese-Americans. Rather, the Court should either decline to review the case altogether or employ a jurisdictional avoidance mechanism such as the political questions doctrine, thereby shifting responsibility solely to elected officials.

Keywords: presidential power, war powers, executive authority, enemy combatant cases

JEL Classification: K39

Suggested Citation

Pushaw, Robert J., The 'Enemy Combatant' Cases in Historical Context: The Inevitability of Pragmatic Judicial Review (2007). Notre Dame Law Review, Vol. 82, 2007, Available at SSRN:

Robert J. Pushaw (Contact Author)

Pepperdine University - Rick J. Caruso School of Law ( email )

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Malibu, CA 90263
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