Dellums v. Bush

The ruling perpetuated the courts' position in avoiding disputes between members of Congress and the president over commitment of U.S. military forces abroad. The district court held that it would not assume Congress' role in resolving political questions involving foreign policy. In a string of undeclared wars through the last half of the twentieth century from Korea to Bosnia, debate raged over the war powers of the president and Congress, and the role, if any, of the courts. Many congressional members contended that only Congress, through the declaration of war, could commit forces. Others insisted that the president, as commander-in-chief, was the logical initiator, with Congress serving as a check primarily through funding controls.

The framers of the Constitution, not trusting a president to hold sole power to commit the nation to war, divided war powers between the executive and legislative branches. Article II names the president commander-in-chief of the armed forces, giving him power to conduct war. Article I gives Congress the power to "raise and support armies" including funding support, and to "declare war." The Constitution does not address what happens if Congress votes not to declare war, but hostilities proceed. During the early period of the nation, the Court strongly restricted presidential war powers. In Ex parte Milligan (1866) the Court limited President Andrew Johnson's efforts to try civilians in military courts. Congress declared war on five occasions: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World War II.

With the beginning of the Cold War in 1946, a common perception took hold that the constitutional separation of war powers established in the eighteenth century no longer applied in a world of imminent nuclear war danger. The president, many argued, needed greater leeway to act quickly and decisively in deterring threats arising from the world-wide spread of Communism. Beginning with the Korean War, the presidents increasingly sent military forces abroad despite lacking clear congressional support. When hearing cases involving foreign policy issues, particularly on war, the Court often relied on the "political question doctrine." As provided in Baker v. Carr (1962), the doctrine stated that such issues are often purely political in nature and must be resolved by the two political branches of government.

The emergence of the Vietnam War in the 1960s created particularly antagonistic relations between the president and members of Congress. The federal courts either refused to hear cases involving constitutional challenges to the wars or readily ruled in favor of the president. By the early 1970s, congressional support for the war faded further and funding was greatly diminished. A federal appeals court ruled in Mitchell v. Laird (1973) that hostilities in Indochina constituted a war without congressional declaration. It also concluded that President Richard Nixon had no recourse but "to bring the war to an end." In an attempt to avoid future legal conflicts between Congress and the president over war powers, Congress passed the War Powers Resolution late in 1973 over Nixon's veto. The law stated that in the absence of a declaration of war the president must report to Congress within 48 hours of introducing military forces into hostilities and must withdraw the troops within 60 days unless Congress approves an extension or demands faster withdrawal.

The resolution brought little relief, as Congress and presidents continued to battle over a variety of foreign policy issues. Importantly, the U.S. Supreme Court ruled in Goldwater v. Carter (1979) that "a dispute between Congress and the president is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority." Justice Powell wrote that the

Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise we would encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict . . . If the Congress chooses not to confront the President, it is not our task to do so.

Therefore, the Court could not rule on that case because Congress had not voted on the matter. In Lowery v. Reagan (1987) a federal court held that it could not rule on a dispute between 110 members of Congress and the president concerning use of U.S. military ships in the Persian Gulf to escort Kuwaiti oil tankers during the Iran-Iraq war. The Court considered the dispute a political fight within Congress itself regarding application of the War Powers Resolution.