Dellums v. Bush

In a companion case before the same district court, a National Guard officer challenged the president's constitutional authority to assign him to the Persian Gulf without Congress declaring war. A different judge more forcefully applied the political question doctrine in Ange v. Bush (1990) by ruling the court had no legal authority to settle the dispute.

Following the two district court decisions, Bush requested a resolution from Congress supporting any action necessary to push Iraq out of Kuwait. Bush insisted he was not constitutionally compelled to seek it. On 12 January 1991, Congress passed such a resolution. Several days later a missile and air assault began against targets in Iraq and on 24 February a massive ground offensive began, chasing Iraqi forces into Iraq. Four days later, Iraq announced it would comply with U.N. demands and Bush declared a cease-fire. However, hostilities and threats persisted with Iraq through the 1990s. Following an assassination attempt on Bush while visiting the Middle East in spring of 1993, President Bill Clinton launched a missile assault on Iraq. Dellums again was an opponent to the presidential action.

Later, Clinton dispatched a U.S. military force to war-torn Bosnia and Hercegovina with eventual deployment of 20,000 troops by 1996. Like Bush in 1990, Clinton did not seek a declaration of war from Congress, relying instead on his constitutional powers as commander-in-chief and authority to conduct foreign relations. Clinton, like Bush, did ask for an expression of congressional support but did not consider it necessary. Congress responded with funding, but did not pass a support resolution.

The decision in Dellums continued the trend established shortly after inception of the Cold War, with courts yielding to presidential actions in cases of foreign hostile actions. The presidents have consistently considered the 1973 War Powers Resolution unconstitutional as no president had given Congress the required notice. The courts have similarly declined to require the president to conform. The three branches fell into a behavior pattern. The president determined when and where to wage war, Congress approved such decisions through resolutions and funding bills, and the judicial branch generally stayed out of war powers disputes.

The constitutional delegation of war powers has long been debated. Some, like Dellums, insisted that the War Declaration Clause gave exclusive authority to Congress to commit troops to foreign soil. Others believed that war declaration was more to satisfy international law standards and enact wartime measures on the home front. Congress could most effectively stop hostilities by simply withholding funds, or even impeaching the president. Some believed that the framers of the Constitution intended to guard against having war decisions made by a single person who well might gain personally from engaging in war. Presidents Nixon, Reagan, Bush, and Clinton were accused of using foreign wars to gain political popularity.

History has shown that cooperation between the branches is necessary to wage a successful war. The Constitution permits sufficient flexibility in the decision-making process to allow for many different ways to fight a war.