Suing to Save the War Powers Resolution

Abstract

This chapter explores the consequence of four decades of congressional and judicial restraint that followed the passage of the 1973 War Powers Resolution. The member lawsuits began with four challenges to President Ronald Reagan (on El Salvador, Nicaragua, Grenada, and the Iran–Iraq War), and one each against George H. W. Bush (Persian Gulf War), Bill Clinton (Kosovo), George W. Bush (Iraq), and Barack Obama (Libya). These cases were dismissed for different reasons by the federal courts, citing mootness, ripeness, standing, the political question doctrine, and equitable discretion, usually in some combination, as barriers to adjudication. Upon dismissal, federal courts placed the entire burden to rein in presidential power on supermajorities in Congress, even though prior authorization may not have occurred. This disapproval would ultimately require two-thirds of both chambers to override a presidential veto. In these ways, federal courts normalized the very dynamics the member-plaintiffs were targeting in their suits.