Judicial Review of the War Power

From the Vietnam War to the present, there has been a growing impression that federal courts lack both the jurisdiction and the competence to decide war power disputes. Such a cramped view finds no support in the first century and a half, when courts regularly accepted and decided such cases. It was only with Vietnam that courts began to avoid the merits of war power cases by invoking a variety of threshold tests. Following 9/11, the broad and expansive justifica tions ofunilateral presidentialpowerJ by the Bush administration forced federal courts to revisit and reassert their constitutional responsibilities. The terrorist attacks of 9111, followed by the creation of a military tribunal, treat ment of detainees, and passage of the USA Patriot Act, brought to the fore again the question of what role federal courts should play in policing the war power. Contempo rary legal studies often argue that foreign affairs-and particularly issues of war and peace-lie beyond the scope of judicial jurisdiction and competence. However, the record over the past two centuries demonstrates that not only have courts decided war power issues many times, they have curbed presidential military actions in time of war. Political scientists have done much to promote the belief in a strong presidency