Extract
The Law: Litigating the War Power with Campbell v. Clinton.
Several recent scholars have suggested that federal courts have rarely decided cases involving the war power and that when they do, they invariably support the president. In a study on judicial review and the war power, Christopher May (1989) offered this analysis: "Before World War I the Supreme Court--with one short-lived exception--refused to pass on the validity of laws adopted under the war powers of the Constitution" (p. vii). He spoke of "the long-standing position that war powers legislation is not subject to judicial review" (p. 1). "The notion that the war powers were exempt from judicial scrutiny had a long and distinguished lineage" (p. 16).
A similar perspective appears in a more recent study by Martin Sheffer (1999) on the judiciary's record of passing judgment on presidential war powers. Executive-legislative conflicts regarding war and peace "rarely find their way to the judiciary and, when they do, are rarely decided according to proper constitutional interpretation" (p. ix). Courts, "speaking generally, either postpone ruling or uphold, when they do rule, [presidential] exercises of the [war] power" (p. x). The courts "lie back, seeking to avoid having to rule on questions of the conduct of commander-in-chief (and war) powers, and when they are forced to rule, they usually uphold presidential action" (pp. x-xi). However, it has not been the practice of federal courts to regularly flinch from deciding war power and foreign-affairs questions. For most of American history, the judiciary has accepted and decided these cases, and they have recognized and upheld congressional prerogatives as much as, if not more than, presidential prerogatives (King and Meernik 1999). The Judiciary Decides War Power Cases Two early Supreme Court cases, in 1800 and 1801, invol...See the full content of this document
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