Constitutional Dysfunction on Trial

Congressional Lawsuits and the Separation of Powers

Jasmine Farrier

• Publisher: Cornell University Press
• Year: 2019
• eBook ISBN: 9781501744471
• Topic: Law
• Subtopic: Public Law
• Index: Law

In an original assessment of all three branches, Jasmine Farrier reveals a new way in which the American federal system is broken. Turning away from the partisan narratives of everyday politics, Constitutional Dysfunction on Trial diagnoses the deeper and bipartisan nature of imbalance of power that undermines public deliberation and accountability, especially on war powers. By focusing on the lawsuits brought by Congressional members that challenge presidential unilateralism, Farrier provides a new diagnostic lens on the permanent institutional problems that have undermined the separation of powers system in the last five decades, across a diverse array of partisan and policy landscapes.

As each chapter demonstrates, member lawsuits are an outlet for frustrated members of both parties who cannot get their House and Senate colleagues to confront overweening presidential action through normal legislative processes. But these lawsuits often backfire – leaving Congress as an institution even more disadvantaged. Jasmine Farrier argues these suits are more symptoms of constitutional dysfunction than the cure. Constitutional Dysfunction on Trial shows federal judges will not and cannot restore the separation of powers system alone. Fifty years of congressional atrophy cannot be reversed in court.

Part 1

WAR POWERS

1

WAR IS JUSTICIABLE, UNTIL IT ISN’T

The framers of the Constitution disagreed about the meaning of its war powers clauses as early as George Washington’s presidency. Washington’s Neutrality Proclamation to keep the United States out of the war between Great Britain and France prompted a series of dueling letters between “Pacificus” (Alexander Hamilton) and “Helvidius” (James Madison) about whether the president had to wait for congressional authorization before declaring a state of nonwar. Washington ultimately decided to wait for legislative authorization.¹ But the United States was unable to stay out of the conflict after all, which triggered the undeclared naval “Quasi War” with France under President John Adams. Three cases related to the Quasi War’s constitutionality went to the Supreme Court, all brought by private plaintiffs who claimed economic damages from the skirmishes. The Supreme Court scrutinized the legislative record to make its decisions and, in one of the cases, rebuked President Adams’s administration for exceeding Congress’s authorization.

These early war cases offer three lessons. First, if the very men who wrote and ratified the Constitution disagreed on war powers, it should be no surprise that later generations argue about them. Second, when federal courts hear conflicts related to war, judges can examine the constitutionality of executive actions if Congress provides a clear record of intent. Third, courts are in a stronger institutional position to resolve private lawsuits that claim specific economic injuries from military actions than they are to resolve public (member) lawsuits that claim vague institutional injuries. Private plaintiffs often have nowhere else to turn other than courts while members of Congress can seek relief from their colleagues.

A summary of private plaintiff lawsuits from the founding period to the early twentieth century demonstrates these points and also contrasts this earlier Supreme Court engagement in war powers conflicts with the first two member cases surrounding the Vietnam War’s expansion. Member litigation began during the Vietnam War out of frustration with imbalance of power that took permanent root in the Cold War and then remained in our political culture under new international pressures in the 1990s and after 9/11. These plaintiffs may genuinely want to stop death and destruction, and turn to federal courts because of fecklessness in the House and Senate. But Courts cannot, will not, and should not do Congress’s work for it. No amount of member litigation can correct these bipartisan institutional developments. Member litigation is an index of separation of powers dysfunction, not the cure.

Early Constitutional History

Institutionally protective members of Congress are rightfully frustrated. No matter the party in the White House or Congress, presidents after 1950 have ordered offensive military actions abroad before waiting for formal legislative authorization. The intention and text of the Constitution says the opposite. In Article I, Section 8, of the Constitution, Congress has powers to “declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy and; To make Rules for the Government and Regulation of the land and naval Forces.”

Far from being unilateral, the president’s constitutional military authority is drawn from what Congress authorizes, through declarations of war, other forms of authorizing legislation, and policymaking through the annual budget process, which can be supplemented anytime. If there is any special reservoir of war power to be found in the Constitution, James Madison’s convention notes suggest that a president can repel sudden attacks on U.S. soil, but that power would not extend to initiating purely offensive actions that begin outside of national territory.² Most modern presidents, however, assume or claim much broader discretion from the “executive power” clause (Art. II, Sec. 1) and the phrase that the president “shall take care that the laws be faithfully executed” (Art. II, Sec. 3).³

The president’s only unilateral foreign policy power in the Constitution is diplomatic: he can recognize foreign countries (stated as “receive ambassadors” in Art. II, Sec. 3). The Senate must consent to nominations of executive branch officials, and it approves treaties with a two-thirds vote (Art. II, Sec. 2). The president’s other shared legislative powers can apply to foreign or domestic policy, including the veto (Art. I, Sec. 7) and recommendation of legislation in the State of the Union (Art. II, Sec. 2). Presidents are expressly forbidden from spending money without prior congressional approval: “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law” (Art. 1, Sec. 9). The most important constitutional provision that modern presidents use to justify their decisions to begin new military action is “The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States” (Art. II, Sec. 3). All modern presidents interpret this power broadly—and say that they may order first strikes in foreign territory for the “national interest.”⁴

Yet, in Federalist 69, Alexander Hamilton described the Constitution’s presidential war powers in far weaker terms, saying the “Commander-in-Chief” provision “would amount to nothing more than the supreme command and direction of the military and naval forces … while that of the British king extends to the declaring of war and to the raising and regulating of fleets and armies—all which, by the Constitution … would appertain to the legislature.”⁵

By comparison to the legislative and executive branches, the Constitution’s description of the federal courts is short, lacking details on judges’ personal qualifications, any reference to judicial review power, and guidance on interpretation. But war and foreign policy powers are expressly described in the Constitution and can be the subject of legislation and interbranch disagreement just the same as domestic economic issues. The framers did not signal that foreign policy cases should be treated differently from others. “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies … between a State, or the Citizens thereof, and foreign States, Citizens or Subjects” (Art III, Sec. 2). Marriage, reproduction, education, technology, the environment, and health care are not mentioned in the Constitution but the Supreme Court rules on them. War powers and processes are mentioned: why are they off-limits?

Although federal courts have the authority to take up foreign policy and war powers cases, engagement in these issues is neither automatic nor always desirable. Judges can exercise at least some control over the types of cases they hear, especially at the Supreme Court. While Congress can regulate appellate jurisdiction (Art. III, Sec. 2), the courts set their own standards for justiciability and can shape their place in the political system through norms and precedent. Hamilton anticipated in Federalist 78 that federal judges will be mindful of their lack of enforcement power in their rulings, even as they have a duty to uphold the Constitution.⁶ While war powers and related processes and policies can be especially fraught for court involvement, no provision in the nation’s founding documents implies that judges have any less power or competence to accept these types of cases and in fact courts have decided some important institutional disagreements in this area. So the question among scholars is really the same one as we see among judges—not whether federal judges can rule on foreign affairs, but whether they should.

Debating Courts and War

In the twenty-first century, the most prominent scholarly debates on war powers in political science focus on the constitutional roles of the president and Congress, not the courts. From assessments of a new “imperial presidency”⁷ to defenders of a “unitary executive theory”⁸ and their detractors,⁹ we know that presidential war power is controversial, regardless of party in the White House. Congressional actions (and inactions) have also received a fresh look, with some studies highlighting House and Senate input prior to presidential war decisions and afterward in the oversight process.¹⁰ Other scholars accuse Congress of abdication on war, or at least deep institutional ambivalence, evidenced by repeated cycles of delegation and regret.¹¹ A more nuanced view on executive power development uses a lens of institutional virtues to assess constitutional boundaries across a variety of policies.¹² Scholars who are otherwise on different sides of the presidential war powers debates nevertheless agree that courts should stay out.¹³

Yet there was once a lively debate in law and political science on whether and how courts could reinvigorate the Constitution’s war powers clauses, before and after the War Powers Resolution (WPR) of 1973. If a court found a presidential-ordered military action a violation of domestic or international law, the president could appeal to Congress for statutory approval.¹⁴ In other words, as John Hart Ely put it, “Courts have no business deciding when we get involved in combat, but they have every business insisting that the officials the Constitution entrusts with that decision be the ones who make it.”¹⁵ One lesson from the Vietnam War is that when governmental power goes unchallenged by both other branches, there is little incentive for self-constraint by the president.¹⁶

Foreign policy was not cordoned off as a blanket political question in Baker v. Carr, which concluded that “it is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.”¹⁷ But the federal courts’ lack of enforcement power make war powers cases especially tricky. In an article otherwise very critical of the Nixon administration’s Vietnam-era military decisions, Alexander Bickel still argued that Congress had the burden to change the war’s direction, not the courts. He observed the Supreme Court’s capacity to enforce its judgments were limited. “The Court cannot declare the war unconstitutional and then do nothing about it. That would deny its nature as a court of law, sitting to decide cases and see controversies to their resolution. And it is on its nature as such an institution of law that the Court’s whole claim to authority rests.”¹⁸

Jesse Choper, meanwhile, said if Congress or the rest of the political system chooses not to resist presidential actions, this consensus may indicate that “no true constitutional violation has occurred. And if they seek to halt what they perceive to be an unconstitutional executive incursion and fail, there is little reason to believe that the Court will succeed when they have not.”¹⁹ Choper later updated his argument to say war powers should not be justiciable because they do not involve constitutional individual rights claims. “The judiciary should not intervene in a matter that can be appropriately resolved within the political process. Although the modern presidency is usually perceived as holding the much stronger hand in conflicts between the executive and legislative branches over military affairs, Congress has many effective tools available to express its disagreement.”²⁰ Choper wants federal courts to preserve their institutional power for more vulnerable plaintiffs than politicians.

Louis Fisher and Neal Devins similarly reject efforts to rope the judiciary into war power claims, arguing that courts are “ill equipped” to decide factual conflicts about the initiation of war but for different reasons than Choper. They maintain that congressional majorities have not set up proper constitutional conflicts through regular legislative processes. While they are sympathetic with the argument that presidents often overstep their constitutional bounds on war, “in surrendering its powers to the President, Congress has little reason to expect assistance from the courts … unless and until Congress has joined the issue by invoking its institutional powers.”²¹ And in other work, Fisher repudiates Supreme Court actions that are decidedly “pro-presidential,” and the fear of ever-more expansive precedent is reasonable.²²

At the center of these arguments are three facts of U.S. political and constitutional life. First, in the nuclear age, national security has become synonymous with the president’s branch. Second, Congress shrank back as the executive grew in stature, with partisansh...

Table of contents

• Introduction
• Part 1: War Powers
• Part 2: Legislative Processes
• Part 3: More Executive Unilateralism
• Conclusion
• Acknowledgments
• Notes
• References
• Index