Should the Judiciary Question the Existence of Armed Conflict?

by John C. Dehn

In response to my last post, Raha Wala asked a wonderfully difficult question.  I have argued below, as well as here and here, that judicial review of executive war measures against U.S. citizens in armed conflict is not only permissible but may even be constitutionally compelled (in cases meeting other prerequisites to the exercise of judicial power).  Raha asked whether I believed our courts have a role in reviewing relevant congressional acts, specifically, whether they could review a congressional recognition or affirmation (not necessarily declaration) of the existence of an armed conflict.  Here is an edited and expanded version of my response to him in the comment thread, which I thought might be of general interest.

One could argue that determining the existence of an armed conflict with a foreign state or non-state armed group is a matter constitutionally dedicated to the elected branches.  This is suggested by: the Declare War Clause, the Prize Cases (1863) and cases such as Bas v. Tingy (1800) (looking only to acts of Congress to determine if France was an enemy at the time a certain vessel was captured).  This would make it a classic political question.  (If war theorist Carl von Clausewitz was correct in saying that “war is simply a continuation of political intercourse, with the addition of other means,” this may be the right result.)

The majority opinion in the Prize Cases, 67 U.S. 635, 668 (1863) provides important discussion on this constitutional assignment of powers.  It first says,

“By the Constitution, Congress alone has the power to declare a national or foreign war.  It cannot declare war against a State, or any number of States, by virtue of any clause in the Constitution.  The Constitution confers on the President the whole Executive power.  He is bound to take care that the laws be faithfully executed.  He is Commander-in-chief of the Army and Navy of the United States, and of the militia of the several States when called into the actual service of the United States.  He has no power to initiate or declare a war either against a foreign nation or a domestic State.  But by the Acts of Congress of February 28th, 1795, and 3d of March, 1807, he is authorized to called out the militia and use the military and naval forces of the United States in case of invasion by foreign nations, and to suppress insurrection against the government of a State or of the United States.” (emphasis added)

After examining a host of other factors, including the reaction of foreign states to the American Civil War, the Court stated,

“Whether the President in fulfilling his duties, as Commander in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this Court must be governed by the decisions and acts of the political department of the Government to which this power was entrusted.”

This language is often used to support arguments that the President is constitutionally entrusted with the power to determine the existence of a state of war.  However, considering the earlier quoted section makes it much more likely that the Court is referring to his being entrusted with that power by the referenced acts of Congress.  Other cases admittedly support a broader independent presidential power to protect citizens and instrumentalities of the U.S. abroad.  See Durand v. Hollins, 8 Fed. Cas. 111 (No. 4186) (C.C.S.D.N.Y. 1860) (“Now, as it respects the interposition of the Executive abroad, for the protection of the lives or property of the citizen, the duty must, of necessity, rest in the discretion of the President.”); see generally Henry Monaghan, The Protective Power of the Presidency, 93 Colum. L. Rev. 1 (1993).

On the other hand, Ex parte Milligan and at least two cases applying the Indian Depredation Act suggest that the existence of a state of war, particularly domestic conflict, is a factual matter to be determined by the courts in the application of domestic law.  See e.g. Montoya v. United States, 280 U.S. 261, 267 (1901) (“We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the government has deemed it necessary to despatch [sic] a military force for their subjugation, is sufficient to constitute a state of war.”)  Of course, the Milligan majority found that Congress may not constitutionally declare the existence of a domestic conflict or threat justifying the abrogation of constitutional rights (in the case, rights unavailable at trial by military commission) unless the domestic courts are closed by conflict.  The concurring opinion in Milligan suggests that Congress may do so, but perhaps only to support congressional indemnification of General Hovey (who ordered Milligan’s military commission) and his subordinates (who conducted it).

Ultimately, there is a good argument that the judiciary may review a determination by one or both elected branches of the existence of armed conflict, at least when they seek to abrogate or derogate the constitutional rights of citizens.  However, there is also a good argument, based on this and other precedent, that it may only do so in matters of domestic governance, or in the absence of a clear determination or statement by the elected branches.

This is separate question from whether the courts should refer to international law as the measure of what constitutes an armed conflict.  The majority in the Prize Cases certainly buttressed its conclusions by reference to commentary on the law of nations.  It is not clear, to me at least, whether this was essential to its decision.   The later Indian Depredation Act cases made no reference to it.  My guess is that the courts would defer to the elected branches on either the substance of international law on this point (on which actual state practice and the bulk of commentary appears conflicted) or its application to facts at hand. In my view, though, compliance with the law of nations regarding blockade and prize was absolutely essential to the Court’s upholding the seizures at issue in the Prize Cases, and has almost always (sans Korematsu and similar WW II precedent where it was not much referenced) been essential to legality of the use of war measures against citizens.

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