The doctrine of separation of powers enshrined in the U.S. Constitution appears increasingly illusory in times of war, as observed in the United States’ recent military actions in Iran. According to Erwin Chemerinsky in SCOTUSblog, President Donald Trump exemplified this trend by engaging in military activities without seeking congressional approval. Historically, decisions regarding war required the involvement of both Congress and the President, a system designed by the Constitution’s framers to ensure checks and balances.
Article I of the Constitution bestows the power to declare war to Congress, while Article II designates the President as Commander-in-Chief, responsible for waging the war. This dual involvement was intended to guard against hasty decisions to engage in war, as echoed in James Madison’s belief that those who conduct war may not be the best judges of when to commence it (The Founders Archive).
In early American history, as exemplified by President George Washington and Thomas Jefferson, the executive branch was cautious about exceeding congressional authorization for military actions. Notable cases, such as the 1800 Supreme Court decision in Bas v. Tingy, reinforced the necessity of congressional involvement, recognizing both declared and undeclared, yet authorized, wars. Chief Justice John Marshall affirmed in Talbot v. Seeman that the “whole powers of war” rested with Congress.
However, the judiciary’s role in reviewing war-related decisions has waned, especially since the Supreme Court’s 1936 decision in United States v. Curtiss-Wright Export Corp. This case established a precedent of deferring to the President in foreign policy matters, thus altering the landscape of judicial involvement in war powers. Justice George Sutherland’s opinion suggested that the President should possess far-reaching inherent powers in foreign affairs, diverging from the Constitution’s constraints on domestic governance.
The Curtiss-Wright decision has influenced subsequent treatment of foreign policy and military actions. Courts typically dismiss challenges to presidential warmaking powers as “political questions,” unsuitable for judicial review, as evident during the Vietnam War and conflicts involving El Salvador, Iraq, and Libya.
Though Congress occasionally involves itself, as with the Authorization for Use of Military Force prior to the Iraq and Afghanistan wars, the decision to bypass congressional war approval in Iran underscores a shift away from traditional legislative oversight, underscoring the need for the judiciary to revisit its stance on checks and balances amid evolving geopolitical landscapes (NBC News).
As Chemerinsky argues, the judiciary should reconsider the implications of Curtiss-Wright to restore the constitutionally mandated separation of powers, ensuring meaningful limits on executive actions in military conflicts, in the spirit of Chief Justice Marshall’s assertion in Marbury v. Madison that it is “the province and duty of the Judicial Department to say what the law is,” irrespective of the realm of foreign policy or war powers.