War Powers Litigation after Zivotofsky v. Clinton
29 Pages Posted: 13 Feb 2018 Last revised: 1 Apr 2018
Date Written: March 22, 2018
This symposium essay considers the role of courts in war powers disputes. In modern times, judicial opinions have been largely absent from the debate over constitutional war powers. Among other things, it is widely assumed — especially in light of the courts’ avoidance of the issue during the Vietnam War — that the political question doctrine would preclude judicial determination of war-initiation powers. In Zivotofsky v. Clinton, however, the Supreme Court appeared to re-characterize and limit the political question doctrine in a way that might allow wider litigation of war powers issues. According to Zivotofsky, the doctrine does not preclude courts from determining the meaning of statutes and the Constitution in separation-of-powers disputes, even when substantial foreign affairs issues are at stake.
The actual subject of the Zivotofsky litigation was, however, relatively modest as foreign affairs controversies go. The courts’ willingness to retreat from the political question doctrine will be more severely tested in matters of greater foreign affairs significance, such as war powers. This essay considers the implications of Zivotofsky for war powers litigation, including by revisiting the Vietnam-era decisions. It first asks whether Zivotofsky, if taken at face value, does indeed suggest a renewed viability of war powers litigation. Second, it asks whether, as a practical matter, courts can comfortably undertake the task of war powers adjudication. Third, it considers the value of more aggressive war powers adjudication, including whether a Zivotofsky-inspired approach to war powers disputes is consistent with the courts’ constitutional role. It concludes that Zivotofsky supports the justiciability of some but not all war powers disputes, and that such an approach is consistent with both the Constitution's original meaning and modern practicalities.
Keywords: war powers, declare war, political question, justiciability, constitution
JEL Classification: K10, K33
Suggested Citation: Suggested Citation