Axes of Power: Predicting the Reception of Assertions of Presidential War Powers in the Courts

Abstract

The sphinx-like nature of constitutional war powers are purposefully ambiguous in their allocation and definitions, yet judicial decisions that have faced presidential exertions of these powers consistently rely on three factors, or axes, to determine whether the executive prevails. First, the President’s power over individuals is greatest within an authorized war against a nation, and when the individuals are connected to a foreign state at war with the United States. Second, the further from the homeland the presidential use of force is, the more likely courts are to support the President, except in cases tantamount to an invasion or insurrection. Third, the more defensive the use of force, including against certain terrorists, the more favorably the courts will view presidential powers. Exigency, while itself not an axis, provides the force multiplier, tipping the balance towards the constitutional office most suited to decision, activity, secrecy, and dispatch.