[Expanded Answer to Question 2]
Chief Justice Marshall ruled that “[t]he whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry [of whether ‘war’ existed].” Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28 (1801).
An early United States Court of Appeals decision also made clear that the power to make war is “exclusively vested in congress.” United States v. Smith, 27 F.Cas. 1192, 1230-31 (C.C.S.D.N.Y. 1806) (No. 16,342).
After the rebellion of the southern states in the beginning of the Civil War, President Lincoln established a belligerent blockade without advance approval of Congress. In The Prize Cases, the Supreme Court held that the existence of war may be recognized by the President prior to any congressional declaration and may take action to defend and make war against invasion by a foreign power or rebellion. However, in the absence of an actual or imminent invasion of the United States, Congress has the sole power to initiate war.
An early United States Court of Appeals decision also made clear that the power to make war is “exclusively vested in congress.” United States v. Smith, 27 F.Cas. 1192, 1230-31 (C.C.S.D.N.Y. 1806) (No. 16,342).
After the rebellion of the southern states in the beginning of the Civil War, President Lincoln established a belligerent blockade without advance approval of Congress. In The Prize Cases, the Supreme Court held that the existence of war may be recognized by the President prior to any congressional declaration and may take action to defend and make war against invasion by a foreign power or rebellion. However, in the absence of an actual or imminent invasion of the United States, Congress has the sole power to initiate war.
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By the Constitution, Congress alone has the power to declare a national or foreign war. . . . The constitution confers on the President the whole executive power. He is bound to take care that the laws be faithfully executed. He is Commander-in-Chief of the [armed services and the militia of the several states when called into actual service]. He has no power to initiate or declare a war either against a foreign nation or domestic state. . . . (Emphasis added.)
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be “unilateral." |
Prize Cases, 67 U.S. 2 Black 635 (1862)
Unfortunately, however, in more recent years, when there have been constitutional challenges to wars or acts of war by order of the president, courts have developed inconsistently applied means, such as the “political question” doctrine, to dodge the issue and refuse to decide the case. The justification is that the issue is purportedly so politically charged that federal courts should not decide the issue.
That has been a terrible abrogation of the responsibility of the courts to determine crucial constitutional issues, even those raised when a president decides to engage in acts of war without a determination by Congress, in clear violation of the War Power Clause of the Constitution.
The court-made tests for determining whether the “political question” doctrine may provide an excuse for not rendering an opinion include such absurd considerations as whether a court decision might be considered disrespectful of the other branches of government (which could be said to be the case anytime the courts do their job when the constitutionality of the actions of one branch of government are challenged—a necessary aspect of separation of power and a system of checks and balances) and whether the court’s involvement might cause “embarrassment” to another branch of government.
In other words, a president may egregiously violate the War Power Clause of the Constitution by unilaterally initiating war, as if he were a dictator or monarch like King George III, and the courts might reject any challenge to that unconstitutional conduct by determining that the matter involves a “political question” that might embarrass someone or make them upset with the courts.
That has been a terrible abrogation of the responsibility of the courts to determine crucial constitutional issues, even those raised when a president decides to engage in acts of war without a determination by Congress, in clear violation of the War Power Clause of the Constitution.
The court-made tests for determining whether the “political question” doctrine may provide an excuse for not rendering an opinion include such absurd considerations as whether a court decision might be considered disrespectful of the other branches of government (which could be said to be the case anytime the courts do their job when the constitutionality of the actions of one branch of government are challenged—a necessary aspect of separation of power and a system of checks and balances) and whether the court’s involvement might cause “embarrassment” to another branch of government.
In other words, a president may egregiously violate the War Power Clause of the Constitution by unilaterally initiating war, as if he were a dictator or monarch like King George III, and the courts might reject any challenge to that unconstitutional conduct by determining that the matter involves a “political question” that might embarrass someone or make them upset with the courts.
