The Law: Litigating the War Power with Campbell v. Clinton

Abstract

Presidential war power has expanded because of executive initiatives, congressional acquiescence, and judicial passivity. This article takes a look at the traditional role of courts in serving as an independent check on presidential war power. During the past half century, however, judges have increasingly invoked a number of doctrines to avoid deciding war power cases: standing, mootness, ripeness, political questions, and prudential considerations. This pattern culminates in Congressman Tom Campbell's challenge to President Bill Clinton's war in Yugoslavia, a case that failed on a combination of standing and political questions. The net effect of this legislative and judicial performance is that we now have unchecked presidential wars, a condition that would have astonished the framers of the Constitution.