Judicial Review of the War Power


  • AUTHOR's NOTE: The views expressed in this article are personal, not institutional, and are not intended to reflect the opinions of the CRS or the Library.

Louis Fisher is senior specialist in separation of powers with the Congressional Research Service, the Library of Congress. This article draws from a lengthier report written with Nada Mourtada-Sabbah, Is War Power a Political Question?, CRS Report RL30687 (September 25, 2000).


From the Vietnam War to the present, there has been a growing impression that federal courts lack both the jurisdiction and the competence to decide war power disputes. Such a cramped view finds no support in the first century and a half, when courts regularly accepted and decided such cases. It was only with Vietnam that courts began to avoid the merits of war power cases by invoking a variety of threshold tests. Following 9/11, the broad and expansive justifications of unilateral presidential powers by the Bush administration forced federal courts to revisit and reassert their constitutional responsibilities.