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Judicial Assessment
Due to the lack of clarity in the Constitution regarding the war powers
look to the Court for help determining their roles. The court can then
framers in making the separation of the branches so clear, the Court has
troubles determining what they should allow of the other branches, or if they
have any say at all. The Court finds itself held back from defining the scope
the powers allotted to each branch due to fear of overstepping their own
boundaries. In the early times around the era of the Civil War, the court was
powers. However, as time progresses, the Court decided on less and less
deciding issues based strictly on whether the other branches are acting
within their powers under the United States Constitution and choosing to
The framers had purposely created a division of the powers of war and
Clause 11 of the Constitution, Congress has the power to declare War, grant
Letters of Marque and Reprisal, and make Rules concerning Captures on Land
and Water. Throughout section 8 Congress is given many other powers
regarding War, they can raise armies, suppress insurrections, provide and
Congress has the sole power in almost all war making decisions. The
Presidents powers concerning war are much less explicit. Article II Section 2
and Navy of the United States. This is where the Judiciary branch finds most
of its issues deciding on war powers. How do we determine the scope of such
Constitution does put him in charge of Foreign Affairs, so drawing the line
he also makes a point to mention that the framers purposely made the
power of the President weak so he would not have complete rule like that of
the British King. It would amount to nothing more than the supreme
command and direction of the military and naval forces, as first General and
there is a clear separation of power between the two branches that was done
so in order to prevent any one branch from getting too much power over the
other branches. In order for our nation to run smoothly in a time of war, the
When it comes to the power to practice judicial review, the Court has
limitations to the kinds of cases in which it can decide on. The Court, under
However, when it comes to the issue of the war powers, the court typically
will not decide on the case deeming it non-justiciable. We first get a sense of
Marbury v Madison. Here Marshal begins to lay down the scope of the power
wholly vested in the executive branch, the court may not decide because it
would be a plenary power that would raise a political question. The subjects
are political: they respect the nation, not individual rights, and being
the Court use Marshalls reasoning in almost all cases that arise regarding
the presidents actions during and after the Vietnam era. After the Vietnam
War, in the case of Baker v Carr, Justice Brennan further examines the idea of
in their nature are just too far vested in the other branches to be considered
by the Court. Yet unlike Marshall, Brennan directly references the issue of
answer upon them would defy judicial application. (Baker pg.61) The most
crucial long lasting aspect of Brennans opinion was that he went beyond
Marshalls and for the first time, directly laid out the guideline of how to tell if
various opinions on the same issue. (Baker pg.61) If an issue meets any of
these requirements, the Court has to decline on deciding the issue. Although
point to the cases in which the Court can pass their judgment on. The
question whether a right has vested or not, is, in its nature, judicial, and
must be tried by the judicial authority.(Marbury pg.7) While the Court will
decide cases regarding if the branches are staying within their powers, they
will typically decline to decide cases on the constitutionality of war and when
the war has begun and end. They try to primarily stay in the realm of only
deciding if they are acting Constitutionally within their powers. Because the
Court will usually stay away from deciding the Constitutionality of the
presidents use of military force. (Smith pg. 1528) We do however see during
the Civil War the court deciding on a case regarding the presidents use of
During the Civil war, the court decided on many cases without taking into
question whether they were justiciable or not. We see in the Prize Cases that
the Court deciding to use judicial review in a way it would never do again.
This case was the first and last time the Court would answer about the
nature of the Presidents war powers directly. Due to the lack of clarity on the
gaining direct authorization from Congress. During 1861, Lincoln had ordered
regarding Lincolns actions, The Prize Cases were heard by the Supreme
Court. Justice Grier offered the opinion of the Court in concluding, that the
bound to resist force by force. He does not initiate war, but is bound to
accept the challenge without waiting for any special legislative authority.
(Prize 1863) The Court goes way beyond in their decision than what the
Constitution allows the president to do. However, I feel the Courts overall
judicial review of the issue to be one of necessity. Although the power to
delegated it to the President. The Constitution does not give the power to the
the Constitution does call for the President to protect the Constitution. Article
assuming office that states, I will faithfully execute the Office of President of
the United States, and will to the best of my Ability, preserve, protect and
defend of the Constitution of the United States. (Us Const.) The majority of
the Court was correct in using the Presidents oath to preserve and protect
with Lincolns actions of the blockade, three years later in Ex Parte Milligan,
they shot down his use of the suspension of Habeas Corpus. The Court never
but did declare that the suspension of Habeas Corpus was not valid. Justice
controlled by the law, and has his appropriate sphere of duty, which is to
Lincolns actions justified was a necessary step to show after the Prize Cases,
that the President must still act within the sphere of his power. The
Constitution only mentions suspending writs of Habeas Corpus under Article
Presidents after the Prize Cases seemed to have assumed a widen range
of powers. They were taking on duties that were clearly out of their scope of
Tube Co. v. Sawyer, the Court makes it clear in limiting the President in his
powers. The Korean War was considered to be at peacetime due to the fact
companies running for war efforts, after a strike from the Union, President
Truman seized the mills. Truman had informed Congress, who decided to
nothing about the Presidents actions. The Court was not apprehensive to
intervene and put a check on the Presidents powers. Both Justice Black who
delivered the opinion and Justice Jackson who concurred, clearly voiced their
during a time of Peace. The Presidents power, if any, to issue the order
must stem either from an act of Congress or from the Constitution itself.
of property as he did here. Nor is there any act of Congress to which our
the president had no authority to act on this. The only thing that the
President can do is either what the Constitution allows him to, or powers the
Congress gives him with prior approval. The President to take seize of
property in a time where the state is not in war, is an act that is clearly
act on whatever he thinks is justifiable, the act of creating laws is left to the
Congress while the President is merely allowed to Execute them. Even more
influential than Blacks opinion was Jacksons concurrence. Jackson does not
say the President is restricted to only exact words of the Constitution but
Congress. Jackson claims that The President when acting under authorization
President is possessing both powers he has vested to him and those of which
vested to him. There may not be clarity if he shares the power with
Congress, so acting alone would risk him being responsible for acting out of
his powers vested. And lastly, the president, when acting alone has the
the President was acting under the third category. This leaves the president
acting very much out of the scope of his powers. Congress, by allowing the
framers never attended. To allow the President to have such power can
actually be dangerous. The power of the President is supposed to be limited
for a reason. We may say that power to legislate for emergencies belongs in
the hands of Congress, but only Congress itself can prevent power from
Youngstown case did not involve actual war powers, the Court did an
excellent job in limiting the powers of the President. However, they do make
a clear indication that they can only do so much in limiting the President.
powers. As the strong words of Jacksons last quote stated, the Court can
only help keep the power away from the President so much, Congress must
take it upon themselves to withhold their powers. The Court was correct in
trying to limit the President, to the best of their ability, but it does require
Youngstown case claiming, that the President has possessed such powers
before with no issues. If the President has any power under the Constitution
there is no basis whatever for criticizing the exercise of such power in this
case.(Youngstown pg.213)
another. Yes, we have a need for the President to act prior to authorization to
emergency situations. That was established previously in the Prize Cases, but
it was stated that it was allowed for certain cases. Truman was acting in a
time of peace. A war was not declared officially and this seizing of the mill
clearly lay beyond defense of attacks power that he holds. This case could
have been constitutional maybe if we had been in a time of war. I agree with
Court used the power of judicial review to directly show the violation of the
Presidents actions against the will of the other branches and Constitution
itself. The Court did an excellent job in explaining the scope of the
inherent powers. However, most cases that rise after the Korean War, during
the Vietnam War, were poised as political questions and the Court objected
to deciding them on judicial restraint grounds. Youngstown was the last case
for a long period of time when the court decided to step in and determine the
After the era of the World War II, the court began to show a decline in
Court did not hear too many disputes between the President and Congress,
stated, the role of the Courts under Marshalls view, is to decide on powers
vested to the branches respectively. Typically when both Congress and the
Executive are both acting Constitutional together, the Court will most likely
not rule on it. (Korematsu pg.201) The Court feared over stepping its
boundaries by offering opinions about the actions of t he other branches
when not necessary to do so. In the light of the Vietnam War, the court was
faced with deciding the constitutionality of the Presidents actions. The court
declined because they concluded they all presented political questions and
other non-justiciable accounts. In Berk v. Laird, Berk sued for relief from
going to Vietnam on the fact that the Vietnam War had not been declared an
official war. The President had sent troops to Vietnam, but Congress had
never declared it a war. The court denied the relief of Berk stating, that it
authorized the President to send troops. For the court to offer an advisory
between both of the branches, the Court is not supposed to offer advice.
the court examined that Berks case fell under the first classification of the
both the branches in the decision to send troops to Vietnam. (Berk 1970)
Under Article I and Article II of the Constitution, Congress can declare war,
a political question, the Court failed to examine if the President was acting in
his power. By failing to consider this issue, the court did not address the
the separation of powers, is to be blind to the fact that if the Courts were to
continue to decide on the case of Berk, it would be for them to breach their
in this case is at his highest amount of power. The President is acting under
President is exercising a power of this nature, it is not for the Court to decide.
Although the President is at his highest power, it does not mean that he
to look at whether the President is actually acting under his powers under
Article I and The Take Care Clause. There should be some way for the
evaluation for the Presidents actions, though it should not be the Federal
Courts.
There were many cases that arose during the Vietnam War, but the Courts
chose to decline decision of any of them. They felt they had lacked
Court decided to stay out of it. This was again shown in Orlando v Laird. The
question the District Court was presented with was whether the Congresss
power to declare war was enough alone to allow the Court to pose it as a
political question. The District Court held that Congress plenary power to
declare war had left the Court to deem it unjustifiable. (Orlando 1971)
During the Vietnam War, the Court adapted a new way of looking into
Political Doctrines called the Ratification Theory. If it could be proven that
court would not right away deem it a political question. It forced the Courts
to take a deeper analytic look into the cases bringing brought forth and
The Supreme Court itself however, never decided any issues involving the
Vietnam War. They declined review, leaving all Vietnam cases to be left to
the lower courts to decide. It was never known why the Court declined to
hear these cases, other than for non-justiciable reasoning. (Schoen pg.275)
After the Vietnam War, Congress took it upon themselves to limit the scope
of the Presidents war powers. Around the era of the Vietnam War many were
frightened the President had too much power. Although Congress had
granted the President the power during the Vietnam War, they feared his
Powers Act. The purpose of the Act was to make clear what war powers both
the President and Congress contain. This Act was a clear indication of the
check and balances that the branches can put on one another. The main
share in decisions that might get the United States involved in war.(War
Powers Act) The Act put in clear terms how the President must act with
regards to war and defense measures, even with his emergency powers. The
act did not only limit the President, it did give him more authority and clarity
to use his emergency and defensive powers. Though the Act was helpful to
clarify what the President can do legally, it made it harder for the Court to
mediate. With this textual commitment between the two branches, the Court
Within the next few decades, the Court was faced with many cases that
affairs. The Court faced difficulty because to offer an opinion would not only
pose a political question but also, they deeply feared the President would
they feared the possibility of being discredited, the Court again began to
insert more judgments based on the Presidents power. The President was
clearly violating the act of Congress and the Court felt it had to step in to
have some authority. When the District Court was faced with Dellums v Bush
sending 500k troops to Iraq. District Judge Green offered the opinion of the
court and concluded the members of Congress did not have standing, the
case was not ripe and it presented a political question. The court found they
lacked standing due to they were not personally injured. The case overall
lacked ripeness because Congress had never asserted whether they were
going to vote for the war or not. In addition, they lacked standing because
there was no defensive attack from Bush at that point. Lastly, they
concluded the overall the case yet again, posed as a political question. Green
did explain however, It does not follow the judicial power is excluded from
affairs.(Dellums pg.252) The major issue was the ripeness of the case.
Congress could have taken further action, or Iraq could have, changing the
overall verdict the court would have reached. The court has no hesitation in
Clause 11. The clause directly gives Congress the power. However, the
Over the course of time, the Court did recognize the need to practice judicial
Constitution and precedents set before them, they were at a standstill. The
Courts decision deciding to decline almost all issues regarding war powers,
due to the political question doctrine has been one of much concern. I
believe that with the clear need for the separation of powers the court has
believe, that the court not answering questions about the Constitutionality of
the other branches, allows them to abuse the need for the separation that
our framers had in mind. If the Court could pass their judgments to the other
voted in to office. The framers never intended the Courts to have more
power over the other branches, especially enough to tell them when and how
to conduct their plenary powers. To have a Court that possesses that power
would create a tyranny. Judicial review without limit would result in the
too much judicial review into the war powers of Congress, it would belittle
(Hamdi pg.263) Limitations of the court to hear cases that provoke a political
question is in fact a good thing. It makes sure the court will not decide on
anything outside their vested powers that explicitly stated under Article III of
the Constitution.
Works Cited
Balfour, Valeria. "He Political Question Doctrine: A Principled Judicial Determination of Non-
BROUGHTON, RICHARD.
"Http://web.b.ebscohost.com.ezproxy.library.csulb.edu/ehost/pdfviewer/pdfviewer?
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"Credibility and War Powers." Harvard Law Review Credibility and War Powers Comments. N.p., n.d.
WAR POWERS AND THE POLITICAL QUESTION DOCTRINE (n.d.): n. pag. Web.
Fisher, Louis. "Judicial Review of the War Power." Presidential Studies Quarterly 35.3 (2005): 466-95.
Web.
"He War Powers Act. International Debates, 15420345, Sep2010, Vol. 8, Issue 6." N.p., n.d. Web.
"ORLANDO v. LAIRD." ORLANDO v. LAIRD | Leagle.com. N.p., n.d. Web. 08 May 2015.
Schoen, Rodric. A Strange Silence: Vietnam and the Supreme Court. Working paper. N.p., n.d. Web.