Resolving the War Powers conundrum through the courts?

John Hart Ely wrote a book called War and Responsibility, in which he analyzes the evolution of the balance of war powers between the President and Congress and, as this blog has, laments the general acceptance of executive-initiated war since 1950. Ely diligently analyzes multiple difficulties regarding war powers through examination of Congress's authorizations of the Vietnam War, and applies the lessons learned from that era to draft a set of proposals that would restore the balance of war powers toward expectations of congressional-initiated war.

The effectiveness of the so-called legislative veto is questioned by Ely (although he also argues for its constitutionality in the context of the War Powers Act), even as it is the backbone of this blog's own proposed war powers constitutional amendment. However, Ely does present a potentially more poignant and effective proposal: pass a revised War Powers Act that explicitly states the courts shall render judgments to suits questioning whether congressional authorization for a particular combat operation has been given. The point would not be to lasso the judiciary into setting United States foreign policy, but rather call it back to its original function of upholding the sanctity of constitutionally-prescribed processes.

The courts have increasingly dismissed cases brought by members of Congress or other parties as non-judiciable political questions. But in these cases, all the court is being asked to render is a ruling on process, not to provide a judgment on the true political question of what the foreign policies of the United States should be. The Constitution demands that Congress authorize the wars that the United States enters into, and Congress either authorizes a war through the constitutionally-proscribed legislative process or not. It is not asking too much of the judiciary to hold the President's feet to the fire and uphold the demands of the Constitution.