There is a certain irony about the stimulating papers by Louis Fisher and Peter Shane: the political scientist, Fisher, makes a normative constitutional argument of the sort typically made by legal scholars; the legal scholar, Shane, makes an institutional and policy analysis of the sort typically made by political scientists. Nevertheless, these papers share a common theme: that the President does not and should not have unfettered or unilateral power in the war-making area. Both also focus on war powers rather than other aspects of foreign affairs such as treaties and executive agreements, but their approaches have implications for those issues as well.' The reader will, I hope, forgive me for not providing a detailed critique of the common theme of these papers and for not exploring some of the larger implications of that theme for the making and implementation of foreign policy.
Instead, I want to emphasize one particularly striking feature of both papers: the dearth of references to judicial decisions. Fisher cites three district court rulings that held the Korean conflict to be a "war" for purposes of insurance coverage5 and a district court case on the legality of United States involvement in Operation Desert Storm without a declaration of war.' Shane provides the almost obligatory reference to Youngstown Sheet and Tube Co. v. Sawyer in a single footnote but cites no other judicial decisions.
The paucity of citations to cases is no accident, and I make this observation without intending criticism of either author. In- stead, I believe that this feature of the papers is instructive, especially for lawyers who have come to think almost reflexively that the Constitution means only what the Supreme Court says it means. Indeed, I want to make two principal points relating to this aspect of the papers: (1) courts are unlikely to play a very large role in resolving debates over the respective roles of Congress and the President in matters of war and foreign affairs; and, (2) that is a good thing.
Place of Original Publication
Case Western Reserve Law Review
47 Case Western Reserve Law Review 1305 (1997)
Entin, Jonathan L., "Dog That Rarely Barks: Why the Courts Won't Resolve the War Powers Debate" (1997). Faculty Publications. 362.