The Law: Litigating the War Power with Campbell v. Clinton

Authors

  • LOUIS FISHER

    1. Senior specialist in separation of powers at the Congressional Research Service, the Library of Congress. His numerous books include American Constitutional Law (3d ed., Carolina Academic Press, 1999) and Constitutional Conflicts between Congress and the President (4th ed., University Press of Kansas, 1997).
    Search for more papers by this author

Abstract

Presidential war power has expanded because of executive initiatives, congressional acquiescence, and judicial passivity. This article takes a look at the traditional role of courts in serving as an independent check on presidential war power. During the past half century, however, judges have increasingly invoked a number of doctrines to avoid deciding war power cases: standing, mootness, ripeness, political questions, and prudential considerations. This pattern culminates in Congressman Tom Campbell's challenge to President Bill Clinton's war in Yugoslavia, a case that failed on a combination of standing and political questions. The net effect of this legislative and judicial performance is that we now have unchecked presidential wars, a condition that would have astonished the framers of the Constitution.

Ancillary