UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CAMPBELL, TOM

v.

CLINTON, WILLIAM J.


99-5214a

D.C. Cir. 2000


*	*	*


Silberman, Circuit Judge: A number of congressmen, led  by Tom Campbell
of California, filed suit claiming that the  President violated the
War Powers Resolution and the War  Powers Clause of the Constitution
by directing U.S. forces'  participation in the recent NATO campaign
in Yugoslavia.  The district court dismissed for lack of standing. We
agree  with the district court and therefore affirm.


I.


On March 24, 1999, President Clinton announced the com- mencement of
NATO air and cruise missile attacks on Yugo- slav targets. Two days
later he submitted to Congress a  report, "consistent with the War
Powers Resolution," detail- ing the circumstances necessitating the
use of armed forces,  the deployment's scope and expected duration,
and asserting  that he had "taken these actions pursuant to [his]
authority  ... as Commander in Chief and Chief Executive." On April 
28, Congress voted on four resolutions related to the Yugo- slav
conflict: It voted down a declaration of war 427 to 2 and  an
"authorization" of the air strikes 213 to 213, but it also  voted
against requiring the President to immediately end  U.S. participation
in the NATO operation and voted to fund  that involvement. The
conflict between NATO and Yugo- slavia continued for 79 days, ending


slavia's agreement to withdraw its forces from Kosovo and  allow
deployment of a NATO-led peacekeeping force.1  Throughout this period
Pentagon, State Department, and  NATO spokesmen informed the public on
a frequent basis of  developments in the fighting.


Appellants, 31 congressmen opposed to U.S. involvement in  the Kosovo
intervention, filed suit prior to termination of that  conflict
seeking a declaratory judgment that the President's  use of American
forces against Yugoslavia was unlawful un- der both the War Powers
Clause of the Constitution and the  War Powers Resolution ("the WPR").
See 50 U.S.C. s 1541  et seq. The WPR requires the President to submit
a report  within 48 hours "in any case in which United States Armed 
Forces are introduced ... into hostilities or into situations  where
imminent involvement in hostilities is clearly indicated  by the
circumstances," and to "terminate any use of United  States Armed
Forces with respect to which a report was  submitted (or required to
be submitted), unless the Congress  ... has declared war or has
enacted a specific authorization  for such use of United States Armed
Forces" within 60 days.  Appellants claim that the President did
submit a report  sufficient to trigger the WPR on March 26, or in any
event  was required to submit a report by that date, but nonetheless 
failed to end U.S. involvement in the hostilities after 60 days.  The
district court granted the President's motion to dismiss,  see
Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), and  this appeal


II.


The government does not respond to appellants' claim on  the merits.
Instead the government challenges the jurisdic- tion of the federal
courts to adjudicate this claim on three  separate grounds: the case
is moot; appellants lack standing,  as the district court concluded;
and the case is non-




__________

n 1 U.S. forces are currently stationed in Kosovo, which remains  part
of Yugoslavia, as part of the peacekeeping operation, but  appellants
do not claim that this deployment is relevant to their  case.


justiciable. Since we agree with the district court that the 
congressmen lack standing it is not necessary to decide  whether there
are other jurisdictional defects.


The question whether congressmen have standing in feder- al court to
challenge the lawfulness of actions of the executive  was answered, at
least in large part, in the Supreme Court's  recent decision in Raines
v. Byrd, 521 U.S. 811 (1997).  Raines involved a constitutional
challenge to the President's  authority under the short-lived Line
Item Veto Act. Individ- ual congressmen claimed that under that Act a
President  could veto (unconstitutionally) only part of a law and
thereby  diminish the institutional power of Congress. Observing it 
had never held that congressmen have standing to assert an 
institutional injury as against the executive, see id. at 821,2  the
Court held that petitioners in the case lacked "legislative  standing"
to challenge the Act. The Court observed that  petitioners already
possessed an adequate political remedy,  since they could vote to have
the Line Item Veto Act re- pealed, or to provide individual spending
bills with a statutory  exemption. See id. at 829.


Thereafter in Chenoweth v. Clinton, 181 F.3d 112, 115  (D.C. Cir.
1999), emphasizing the separation-of-powers prob- lems inherent in
legislative standing, we held that congress- men had no standing to
challenge the President's introduction  of a program through executive
order rather than statute.  As in Raines, appellants contended that
the President's action  inflicted an institutional injury upon
Congress, in this case by  circumventing its legislative authority,




__________

n 2 The Court noted that it had found standing for a congressman  in
Powell v. McCormack, 395 U.S. 486 (1969), where he was 
unconstitutionally excluded from Congress, thus depriving him of a 
salary and the House seat he was constitutionally due, both person- al
injuries. The Court did not decide whether congressmen would  have
standing to challenge actions of Congress which diminished  their
institutional role. Cf. Michel v. Anderson, 14 F.3d 623 (D.C.  Cir.
1994) (congressmen had standing to challenge House rule  which diluted
their vote in Committee of the Whole).


It is uncontested that the Congress could terminate the  [contested
program] were a sufficient number in each  House so inclined. Because
the parties' dispute is there- fore fully susceptible to political
resolution, we would  [under circuit precedent] dismiss the complaint
to avoid  "meddl[ing] in the internal affairs of the legislative 
branch." Applying Raines, we would reach the same  conclusion.


Id. at 116 (citation omitted).


There remains, however, a soft spot in the legal barrier  against
congressional legal challenges to executive action, and  it is a soft
spot that appellants sought to penetrate. In 1939  the Supreme Court
in Coleman v. Miller voted 5-4 to recog- nize the standing of Kansas
State legislators in the Supreme  Court to challenge the actions of
the Kansas Secretary of  State and the Secretary of the State Senate.
See 307 U.S.  433 (1939). That case arose out of a State Senate vote
on the  ratification of a constitutional amendment, the Child Labor 
Amendment, proposed by Congress in 1924. The State Sen- ate split 20
to 20, and the Lieutenant Governor, the presiding  officer of the
Senate, then cast a deciding vote in favor. The  State House
subsequently also passed a ratification resolu- tion. Thereupon the
twenty State Senators who voted  against ratification plus one more
(who presumably had voted  for the resolution) brought a mandamus
action in the State  Supreme Court challenging the Lieutenant
Governor's right  to vote.3 They sought an order compelling the
Secretary of  the Senate to erase the endorsement on the resolution
and  restraining the Secretary of State from authenticating the 
resolution and passing it on to the Governor. The Supreme 




__________

n 3 The government also challenges the congressmen's standing on  the
basis that they do not constitute a majority of the Congress. In 
Raines the Supreme Court did "attach some importance to the fact  that
appellees have not been authorized to represent their respec- tive
Houses of Congress in this action," but it declined to say how  much
importance. Raines, 521 U.S. at 829-30. Because we find  that
appellants lack standing for another reason, we need not  discuss that


Court of Kansas entertained the action but ruled against the 
plaintiffs on the merits. Granting certiorari, the United  States
Supreme Court determined that "at least the twenty  senators whose
votes, if their contention were sustained,  would have been sufficient
to defeat the resolution ... have  an interest ... sufficient to give
the Court jurisdiction," id. at  446, because they have a legal
interest "in maintaining the  effectiveness of their votes." Id. at


In Raines the plaintiff congressmen had relied on Coleman  to argue
that they had standing because the presidential veto  had undermined
the "effectiveness of their votes." The Su- preme Court noted that
Coleman might be distinguished on  grounds that the federal
constitutional separation of powers  concerns that underlay its
decision in Raines (and which we  emphasized in Chenoweth) were not
present, or that if the  Court in Coleman had not taken the case a
question of  federal law--the ratification vel non by the Kansas
Legisla- ture--would remain as decided by the Kansas Court. But cf. 
Coleman, 307 U.S. at 465-66 (opinion of Frankfurter, J.).  But the
Court thought it unnecessary to cabin Coleman on  those grounds. See
Raines, 521 U.S. at 824 n.8. Instead, the  Court emphasized that the
congressmen were not asserting  that their votes had been "completely


They have not alleged that they voted for a specific bill,  that there
were sufficient votes to pass the bill, and that  the bill was
nonetheless deemed defeated....


Nor can they allege that the Act will nullify their votes in  the
future in the same way that the votes of the Coleman  legislators had
been nullified ...


In addition, a majority of Senators and Congressmen can  vote to repeal
the Act, or to exempt a given appropria- tions bill.... 


Id. at 824.


Here the plaintiff congressmen, by specifically defeating  the War
Powers Resolution authorization by a tie vote and by  defeating a
declaration of war, sought to fit within the Cole- man exception to
the Raines rule. This parliamentary tactic 


led to an extensive argument before us as to exactly what the  Supreme
Court meant by a claim that a legislator's vote was  completely
"nullified."


It is, to be sure, not readily apparent what the Supreme  Court meant
by that word. It would seem the Court used  nullify to mean treating a
vote that did not pass as if it had,  or vice versa. The
"nullification" alleged in this case there- fore differs from Coleman
in a significant respect. In that  case state officials endorsed a
defeated ratification, treating it  as approved, while the President
here did not claim to be  acting pursuant to the defeated declaration
of war or a  statutory authorization, but instead "pursuant to [his]
consti- tutional authority to conduct U.S. foreign relations and as 
Commander-in-Chief and Chief Executive." See Letter to  Congressional
Leaders Reporting on Airstrikes Against Ser- bian Targets in the
Federal Republic of Yugoslavia (Serbia  and Montenegro), 35 Weekly
Comp. Pres. Doc. 528 (March  26, 1999). The Court did not suggest in
Raines that the  President "nullifies" a congressional vote and thus
legislators  have standing whenever the government does something Con-
gress voted against, still less that congressmen would have  standing
anytime a President allegedly acts in excess of  statutory authority.
As the government correctly observes,  appellants' statutory argument,
although cast in terms of the  nullification of a recent vote,
essentially is that the President  violated the quarter-century old
War Powers Resolution.  Similarly, their constitutional argument is
that the President  has acted illegally--in excess of his
authority--because he  waged war in the constitutional sense without a
congressional  delegation. Neither claim is analogous to a Coleman


We think the key to understanding the Court's treatment  of Coleman and
its use of the word nullification is its implicit  recognition that a
ratification vote on a constitutional amend- ment is an unusual
situation. It is not at all clear whether  once the amendment was
"deemed ratified," see Raines, 521  U.S. at 822, the Kansas Senate
could have done anything to 


reverse that position.4 We think that must be what the  Supreme Court
implied when it said the Raines plaintiffs  could not allege that the
"[Line Item Veto Act] would nullify  their votes in the future," and
that, after all, a majority of  senators and congressmen could always
repeal the Line Item  Veto Act. Id. at 824 (emphasis added). The
Coleman sena- tors, by contrast, may well have been powerless to
rescind a  ratification of a constitutional amendment that they
claimed  had been defeated. In other words, they had no legislative 
remedy. Under that reading--which we think explains the  very narrow
possible Coleman exception to Raines--appel- lants fail because they
continued, after the votes, to enjoy  ample legislative power to have
stopped prosecution of the  "war."


In this case, Congress certainly could have passed a law  forbidding
the use of U.S. forces in the Yugoslav campaign;  indeed, there was a
measure--albeit only a concurrent resolu- tion--introduced to require
the President to withdraw U.S.  troops. Unfortunately, however, for
those congressmen who,  like appellants, desired an end to U.S.
involvement in Yugo- slavia, this measure was defeated by a 139 to 290
vote. Of  course, Congress always retains appropriations authority and
 could have cut off funds for the American role in the conflict. 
Again there was an effort to do so but it failed; appropria- tions
were authorized. And there always remains the possi- bility of
impeachment should a President act in disregard of  Congress'


* * * *


Appellants' constitutional claim stands on no firmer footing. 
Appellants argue that the War Powers Clause of the Consti- tution
proscribes a President from using military force except  as is
necessary to repel a sudden attack. But they also argue  that the WPR
"implements" or channels congressional au- thority under the
Constitution. It may well be then that 




__________

n 4 See Coleman, 307 U.S. at 450 ("[T]he question of the efficacy of 
ratifications of state legislatures, in the light of ... attempted 
withdrawal, should be regarded as a political question....").


since we have determined that appellants lack standing to  enforce the
WPR there is nothing left of their constitutional  claim. Assuming,
however, that appellants' constitutional  claim should be considered
separately, the same logic dictates  they do not have standing to
bring such a challenge. That is  to say Congress has a broad range of
legislative authority it  can use to stop a President's war making,
see generally John  C. Yoo, The Continuation of Politics by Other
Means: The  Original Understanding of War Powers, 84 Cal. L. Rev. 167 
(1996), and therefore under Raines congressmen may not  challenge the
President's war-making powers in federal court.


Judge Randolph asserts that appellants lack standing be- cause they do
not claim that the President violated various  statutes that depend on
the existence of a war or the immi- nence of war. But that position
sidesteps appellants' basic  claim that the President
unconstitutionally conducted a war  without authority, and the logic
of Judge Randolph's reason- ing ("There is no suggestion that despite
the vote, President  Clinton invaded Yugoslavia by land or took some
other action  authorized only during a declared war.") is that if
there had  been a "war" appellants would have had standing. See infra 
at 6 (Randolph, J., concurring).5 He therefore presents as an 
alternate reason for denying standing that the President did  not
"nullify" the vote against the declaration of war because  he did not
take any actions that constitute "war" in the  constitutional sense.
See id. at 4-6. That analysis, however,  conflates standing with the
merits. At the standing stage we  must take as correct appellants'
claim that the President  violated the Constitution simply by ordering


In our view Judge Randolph's criticism of our analysis does  not give
sufficient attention to Raines' focus on the political  self-help
available to congressmen. See infra at 8-9 (Ran- dolph, J.,
concurring). Even though the congressmen in 




__________

n 5 It is certainly not logically necessary for appellants to assert a 
violation of the statutes (three of which do not even depend on a 
declaration of war) relied upon by the concurrence in order to make 
their constitutional claim.


Raines sought review before the Court of what was soon  after
determined in Clinton v. City of New York, 524 U.S. 417  (1998), to be
an unconstitutional statute, the Court denied  them standing as
congressmen because they possessed politi- cal tools with which to
remedy their purported injury. Our  colleague notes a distinction
drawn by Raines between "the  right to vote in the future [and] the
nullification of a vote in  the past," see infra at 8 (Randolph, J.,
concurring), and  asserts that the former does not remedy the latter.
But  Raines rejected this argument, which is why the congressmen  in
Raines lacked standing whereas petitioners in New York  were allowed
to contest the President's "nullification" of  particular
appropriations line items. Indeed, Raines explicit- ly rejected Judge
Randolph's argument that legislators  should not be required to turn
to politics instead of the courts  for their remedy. Although the
plaintiff legislators in Raines  had already failed to stop passage of
the Line Item Veto Act,  the Court's response was the equivalent of
"if at first you  don't succeed, try and try again"--either work for
repeal of  the Act, or seek to have individual spending bills made 
exempt. See Raines, 521 U.S. at 824-25, 825 n.9, 830. Judge  Randolph
overlooks this key portion of Raines when he  disagrees with our
conclusion that plaintiffs lack standing  because they may "fight
again tomorrow." Infra at 8 (Ran- dolph, J., concurring).6




__________

n 6 Judge Randolph also contends that our opinion is in conflict with 
Chenoweth v. Clinton, 181 F.3d 112, 116-17 (D.C. Cir. 1999). But  as
we have already described that opinion, see supra at 5, it too 
focused on the political options available to congressmen when 
denying them standing. Chenoweth did not hold, as Judge Ran- dolph
would have it, that Kennedy v. Sampson, 511 F.2d 430 (D.C.  Cir.
1974), survived Raines. Instead, we stressed the increased  emphasis
placed by such post-Kennedy cases as Raines on separa- tion of powers
concerns. See Chenoweth, 181 F.3d at 113-15.  Although appellants'
injury in Chenoweth was "precisely the harm  we held in ... Kennedy to
be cognizable under Article III," it was  also "identical to the
injury the Court in Raines deprecated as  'widely dispersed' and
'abstract,' " and therefore we affirmed the  district court's
dismissal for lack of standing. Id. We only sug- gested tentatively


* * * *


Accordingly, the district court is affirmed; appellants lack 
standing.




__________

n peculiar application of the narrow rule announced in" Coleman.  See
id. at 116 (emphasis added). Indeed, Judge Tatel understand- ably read
our opinion to "essentially overrule[ ] the theory of  legislative
standing recognized in Kennedy...." See id. at 117  (Tatel, J.,
concurring). In any event, Chenoweth's discussion of  Kennedy's fate
after Raines was dicta, and we need not decide for  purposes of this
case if Kennedy, which involved the special ques- tion of a pocket
veto, survived Raines.


Silberman, Circuit Judge, concurring: Appellants argued  that we should
consider in our standing analysis that if  congressmen lack standing
only military personnel might be  able to challenge a President's
arguably unlawful use of force,  and it would be undesirable to put
the armed forces in such a  position. Although that is not a
consideration that bears on  standing, see Schlesinger v. Reservists
Comm. to Stop the  War, 418 U.S. 208, 227 (1974), that argument leads
me to  observe that, in my view, no one is able to bring this 
challenge because the two claims are not justiciable. We lack 
"judicially discoverable and manageable standards" for ad- dressing
them, and the War Powers Clause claim implicates  the political
question doctrine. See Baker v. Carr, 369 U.S.  186, 217 (1962).


Prior litigation under the WPR has turned on the threshold  test
whether U.S. forces are engaged in hostilities or are in  imminent
danger of hostilities. But the question posed by  appellants--whether
the President's refusal to discontinue  American activities in
Yugoslavia violates the WPR--neces- sarily depends on the statute
having been triggered in the  first place. It has been held that the
statutory threshold  standard is not precise enough and too obviously
calls for a  political judgment to be one suitable for judicial
determina- tions. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202,
 209 (D.C. Cir. 1985) (aid to Contras); Crockett v. Reagan, 720  F.2d
1355, 1356-57 (D.C. Cir. 1983) (U.S. advisors in El  Salvador); see
also Ange v. Bush, 752 F. Supp. 509, 514  (D.D.C. 1990) (pre-Gulf War
buildup); Lowry v. Reagan, 676  F. Supp. 333, 340 n.53 (D.D.C. 1987)
(reflagging operations in  the Persian Gulf). I think that is correct.
Appellants point  to a House Report suggesting that hostilities for
purposes of  the WPR include all situations "where there is a
reasonable  expectation that American military personnel will be
subject  to hostile fire." See H.R. Rep. No. 287, 93rd Cong., 1st
Sess.  7 (1973). That elaboration hardly helps. It could reasonably 
be thought that anytime American soldiers are confronted by  armed or
potentially armed forces of a non-ally there is a  reasonable
expectation that they will be subject to hostile fire.  Certainly any


Appellants argue that here there is no real problem of  definition
because this air war was so overwhelming and  indisputable. It is
asserted that the President implicitly  conceded the applicability of
the WPR by sending the report  to Congress. In truth, the President
only said the report was  "consistent" with the WPR. In any event, I
do not think it  matters how clear it is in any particular case that
"hostilities"  were initiated if the statutory standard is one
generally  unsuited to judicial resolution.


Nor is the constitutional claim justiciable. Appellants con- tend this
case is governed by Mitchell v. Laird, 488 F.2d 611,  614 (D.C. Cir.
1973), where we said that "[t]here would be no  insuperable difficulty
in a court determining whether" the  Vietnam conflict constituted a
war in the Constitutional sense.  See also Dellums v. Bush, 752 F.
Supp. 1141, 1146 (D.D.C.  1990) ( "[T]he Court has no hesitation in
concluding that an  offensive entry into Iraq by several hundred
thousand United  States servicemen ... could be described as a 'war'
within  the meaning ... of the Constitution."). But a careful read-
ing of both cases reveals that the language upon which  appellants
rely is only dicta. (In Laird the Court ultimately  held that the
resolution of the issues was a political question.  See 488 F.2d at


Appellants cannot point to any constitutional test for what  is war.
See, e.g., Holtzman v. Schlesinger, 414 U.S. 1316  (1973) (Justice
Douglas, in chambers, vacating order of Court  of Appeals granting
stay of district court's injunction against 




__________

n 1 The additional cases upon which Judge Tatel relies with respect  to
this point were also held to present political questions. See 
Massachusetts v. Laird, 451 F.2d 26, 34 (1st Cir. 1971) ("All we hold 
here is that in a situation of prolonged but undeclared hostilities, 
where the executive continues to act not only in the absence of any 
conflicting congressional claim of authority but with steady congres-
sional support, the Constitution has not been breached."); Orlando  v.
Laird, 443 F.2d 1039, 1043 (2d Cir. 1971) (whether Vietnam  conflict
required a declaration of war was a political question); Berk  v.
Laird, 429 F.2d 302 (2d Cir. 1970) (denying a preliminary  injunction
against dispatch of soldier to Vietnam because whether  Congress had
authorized conflict was a political question).


bombing of Cambodia), 411 U.S. 1321 (1973) (Justice Mar- shall, in
chambers, granting stay the same day with the  concurrence of the
other Justices); Holtzman v. Schlesinger,  484 F.2d 1307 (2d Cir.
1973) (holding legality of Cambodia  bombing nonjusticiable because
courts lack expertise to de- termine import of various military
actions). Instead, appel- lants offer a rough definition of war
provided in 1994 by an  Assistant Attorney General to four Senators
with respect to a  planned intervention in Haiti, as well as a number
of law  review articles each containing its own definition of war. I
do  not think any of these sources, however, offers a coherent test 
for judges to apply to the question what constitutes war, a  point
only accentuated by the variances, for instance, between  the numerous
law review articles. For that reason, I dis- agree with Judge Tatel's
assertion that we can decide appel- lants' constitutional claim
because it is somehow obvious in  this case that our country fought a
war. See infra at 6 (Tatel,  J., concurring). Baker v. Carr speaks of
a case involving "a  lack of judicially discoverable and manageable
standards for  resolving" the issue presented, see 369 U.S. at 217,
not just a  case the facts of which are obscure; the focus is on the 
standards. Even if this court knows all there is to know  about the
Kosovo conflict, we still do not know what stan- dards to apply to


Judge Tatel points to numerous cases in which a court has  determined
that our nation was at war, but none of these  cases involved the
question whether the President had "de- clared war" in violation of
the Constitution. For instance, in  Bas v. Tingy, 4 U.S. 37 (1800),
the question whether there  was a "war" was only relevant to
determining whether  France was an "enemy" within the meaning of a
prize statute.  See id. at 37 ("[T]he argument turned, principally,
upon two  inquiries: 1st. Whether the Act of March 1799, applied only 
to the event of a future general war? 2d. Whether France  was an enemy
of the United States, within the meaning of the  law?"). Indeed,
Justice Washington's opinion in that case,  upon which Judge Tatel
principally relies, suggests that  whether there was a war in the
constitutional sense was  irrelevant. See id. at 42 ("Besides, it may


should the rate of salvage be different in such a war as the  present,
from the salvage in a war more solemn [i.e. a  declared war] or
general?"). It is similarly irrelevant that  courts have determined
the existence of a war in cases  involving insurance policies and
other contracts, the Federal  Tort Claims Act, and provisions of the
military criminal code  applicable in "time of war." See infra at 4-5
(Tatel, J.,  concurring). None of these cases asked whether there was
a  war as the Constitution uses that word, but only whether a 
particular statutory or contractual provision was triggered by  some
instance of fighting. Comparing Bas v. Tingy's lengthy  discussion
whether our quarrel with France constituted a  solemn or imperfect,
general or limited war, see 4 U.S. at 40- 41, with today's propensity
to label any widespread conflict an  undifferentiated war, it would
not be surprising if an insur- ance contract's "war" provisions, or
even a statute's for that  matter, were triggered before the


Even assuming a court could determine what "war" is, it is  important
to remember that the Constitution grants Con- gress the power to
declare war, which is not necessarily the  same as the power to
determine whether U.S. forces will fight  in a war. This distinction
was drawn in the Prize Cases, 67  U.S. 635 (1862). There, petitioners
challenged the authority  of the President to impose a blockade on the
secessionist  States, an act of war, where Congress had not declared
war  against the Confederacy. The Court, while recognizing that  the
President "has no power to initiate or declare a war,"  observed that
"war may exist without a declaration on either  side." Id. at 668. In
instances where war is declared against  the United States by the
actions of another country, the  President "does not initiate the war,
but is bound to accept  the challenge without waiting for any special
legislative au- thority." Id. Importantly, the Court made clear that
it  would not dispute the President on measures necessary to  repel
foreign aggression. The President alone


must determine what degree of force the crisis demands.  The
proclamation of blockade is itself official and conclu- sive evidence
to the Court that a state of war existed 


which demanded and authorized a recourse to such a  measure, under the
circumstances peculiar to the case.


Id. at 670.2 And, to confirm the independent authority of the 
President to meet foreign aggression, the Court noted that  while
Congress had authorized the war, it may not have been  required to:
"If it were necessary to the technical existence  of a war, that it
should have a legislative sanction, we find  it...." Id. (emphasis


I read the Prize Cases to stand for the proposition that the  President
has independent authority to repel aggressive acts  by third parties
even without specific congressional authoriza- tion, and courts may
not review the level of force selected.  See Geoffrey Corn,
Presidential War Power: Do the Courts  Offer Any Answers?, 157 Mil. L.
Rev. 180, 214 (1998); J.  Gregory Sidak, To Declare War, 41 Duke L.J.
27, 54 (1991);  Cyrus R. Vance, Striking the Balance: Congress and the
 President Under the War Powers Resolution, 133 U. Pa. L.  Rev. 79, 85
(1984). Therefore, I assume, arguendo, that  appellants are correct
and only Congress has authority to  initiate "war." If the President
may direct U.S. forces in  response to third-party initiated war, then
the question any  plaintiff who challenges the constitutionality of a
war must  answer is, who started it? The question of who is




__________

n 2 Judge Tatel's reliance on the Prize Cases as an example of the 
Court concluding a war exists is misplaced because the Court itself 
did not label the Civil War such, but instead deferred to the 
President's determination that the country was at war. See 67 U.S.  at
670 ("Whether the President in fulfilling his duties, as 
Commander-in-chief ... has met with such armed hostile resis- tance
... as will compel him to accord to them the character of 
belligerants, is a question to be decided by him, and this Court  must
be governed by the decisions and acts of the political depart- ment of
the Government to which this power was entrusted")  (emphasis in
original). Therefore, the Court's assertion that "it is  bound to
notice and to know" the war, see id. at 667, provides no  support for
the proposition that a court itself may decide when in  fact there is
one. The Prize Cases thus refute the suggestion in  Talbot v. Seeman,
5 U.S. 1, 28 (1801), that only acts of Congress are 


for a conflict is, as history reveals, rather difficult to answer,  and
we lack judicial standards for resolving it. See, e.g.,  Greenham
Women Against Cruise Missiles v. Reagan, 591 F.  Supp. 1332, 1337-38
(S.D.N.Y. 1984) (court lacked judicially  manageable standards to
decide if placement of U.S. cruise  missiles in England was a
war-like, "aggressive" act). Then  there is the problem of actually
discovering the necessary  information to answer the question, when
such information  may be unavailable to the U.S. or its allies, or
unavailable to  courts due to its sensitivity. See id. at 1338.
Perhaps  Yugoslavia did pose a threat to a much wider region of 
Europe and to U.S. civilian and military interests and person- nel


Judge Tatel does not take into account the Prize Cases  when he
concludes that the President was not exercising his  independent
authority to respond to foreign aggression be- cause "in fact, the
Kosovo issue had been festering for years."  See infra at 6 (Tatel,
J., concurring). As quoted above the  President alone "must determine
what degree of force the  crisis demands." See 67 U.S. at 670. Judge
Tatel would  substitute our judgment for the President's as to the
point at  which an intervention for reasons of national security is 
justified, after which point--when the crisis is no longer  acute--the
President must obtain a declaration of war. One  should bear in mind
that Kosovo's tensions antedate the  creation of this republic.


In most cases this will also be an issue of the greatest  sensitivity
for our foreign relations. Here, the President  claimed on national
television that our country needed to  respond to Yugoslav aggression
to protect our trading inter- ests in Europe, and to prevent a replay
of World War I. A  pronouncement by another branch of the U.S.
government  that U.S. participation in Kosovo was "unjustified" would
no  doubt cause strains within NATO. Cf. United States v. New,  50
M.J. 729, 739-40 (Army Ct. Crim. App. 1999) (lawfulness of  U.N.
peacekeeping operation in Macedonia was a political  question).




__________

n evidence of the existence of a war. See infra at 2 (Tatel, J., 
concurring).


In sum, there are no standards to determine either the  statutory or
constitutional questions raised in this case, and  the question of
whether the President has intruded on the  war-declaring authority of
Congress fits squarely within the  political question doctrine. We
therefore have another basis  for our affirming the district court's
dismissal of appellants'  case.


Randolph, Circuit Judge, concurring in the judgment: The  majority
opinion does not, I believe, correctly analyze plain- tiffs' standing
to sue. It misconceives the holding of Raines  v. Byrd, 521 U.S. 811
(1997), and conflicts with the law of this  circuit. I believe
plaintiffs lack standing, at least to litigate  their constitutional
claim, but for reasons the majority opinion  neglects. I also believe
that the case is moot, an optional  disposition of the appeal.1 The
serious questions about the  constitutionality of the War Powers
Resolution2 must there- fore be put off for still another day.


I. Standing The Constitution reserves the power to declare "war"3 to 
Congress and delegates the power to conduct war to the  


__________

n 1 While we may be required to decide jurisdictional issues before 
disposing of a case on the merits, we are not required to decide 
jurisdictional questions in any particular order. See Arizonans for 
Official English v. Arizona, 520 U.S. 43, 66-67 (1997); Galvan v. 
Federal Prison Indus., Inc., No. 98-5472, slip op. at 3-4 (D.C. Cir. 
Dec. 21, 1999) (citing Steel Co. v. Citizens for a Better Environment,
 523 U.S. 83, 94-95 (1998); Ruhrgas A.G. v. Marathon Oil Co., 119  S.
Ct. 1563 (1999)). Specifically, we may assume standing when 
dismissing a case as moot. See Friends of the Earth, Inc. v.  Laidlaw
Envtl. Servs., 2000 WL 16307, at *9 (U.S. Jan. 21, 2000)  (citing
Arizonans, 520 U.S. at 66-67).


2 I include as an Addendum to this opinion President Nixon's 1973 
message to the House of Representatives explaining why he vetoed  the
War Powers Resolution on the grounds of its unconstitutionali- ty.


3 War may be defined [as] the exercise of violence under  sovereign
command against withstanders; force, authority and  resistance being
the essential parts thereof. Violence, limited  by authority, is
sufficiently distinguished from robbery, and  like outrages; yet
consisting in relation towards others, it  necessarily requires a
supposition of resistance, whereby the  force of war becomes different
from the violence inflicted upon  slaves or yielding malefactors.


Samuel Johnson, A Dictionary of the English Language (facsimile  ed.,
Times Books, Ltd., London 1978) (1755). See United States v. 
Bajakajian, 524 U.S. 321, 335 (1998) (citing Johnson); Nixon v. 
United States, 506 U.S. 224, 229-30 (1993) (same); see also Bas v. 


President. Compare U.S. Const. art. I, s 8, cl. 11, with id.  art. II,
s 2. When President Clinton committed armed  forces to the attack on
the Federal Republic of Yugoslavia, he  did so without a declaration
of war from Congress. On April  28, 1999, after air operations and
missile strikes were under- way, the House of Representatives voted
427 to 2 against a  declaration of war. See H.R.J. Res. 44, 106th
Cong. (1999);  126 Cong. Rec. H2440-41 (daily ed. Apr. 28, 1999).


The War Powers Resolution, passed over President Nixon's  veto in 1973,
implements Congress's power to declare war  under the Constitution.
See 50 U.S.C. s 1541(a)-(b). It  commands the President to "terminate
any use of United  States Armed Forces" within sixty days "unless the
Congress  (1) has declared war or has enacted a specific authorization
 for such use of United States Armed Forces, (2) has extended  by law
such sixty-day period, or (3) is physically unable to  meet as a
result of an armed attack upon the United States."  50 U.S.C. s
1544(b). The Senate, on March 23, 1999, passed  a concurrent
resolution providing that "the President of the  United States is
authorized to conduct military air operations  and missile strikes in
cooperation with our NATO allies  against the Federal Republic of
Yugoslavia." S. Con. Res. 21,  106th Cong. (1999); 145 Cong. Rec.
S3118 (daily ed. Mar. 23,  1999). The House rejected that measure by a
tie vote on  April 28, 1999. See 126 Cong. Rec. H2451-52 (daily ed.


The Members of Congress appearing as plaintiffs contend  that President
Clinton violated the Constitution and the War  Powers Resolution and
that they are entitled to a judicial  declaration so stating. They
have standing, they say, because  President Clinton's prosecution of
the war "completely nulli- fied" their votes against declaring war and
against authoriz- ing a continuation of the hostilities. See Amended
Complaint  p 18; Brief for Plaintiffs-Appellants at 8, 16.




__________

n


Tingy, 4 U.S. (4 Dall.) 37 (1800) (relying on Blackstone and other 
commentators to distinguish between perfect and imperfect wars).


A.


The quoted phrase--"completely nullified"--is from Raines  v. Byrd, 521
U.S. 811, 823 (1997), giving the Court's appraisal  of the rule in
Coleman v. Miller, 307 U.S. 433 (1939). The  majority opinion in our
case seems to assume that the only  thing left of legislative standing
is whatever Raines pre- serves. I will not quarrel with the
assumption, at least for  cases in which a legislator is claiming that
his vote has been  illegally nullified.4 The heart of the Raines
decision is this:  "legislators whose votes would have been sufficient
to defeat  (or enact) a specific legislative act have standing to sue
if that  legislative action goes into effect (or does not go into
effect),  on the ground that their votes have been completely nulli-
fied." 521 U.S. at 823.5


Here, plaintiffs had the votes "sufficient to defeat" "a  specific
legislative action"--they defeated a declaration of war  (their
constitutional claim) and they blocked a resolution  approving the
President's continuation of the war (their statu- tory claim). To
follow precisely the formulation in Raines,  they would have standing
only if the legislative actions they  defeated went "into effect."
Obviously, this did not happen:  war was not declared, and the
President never maintained  that he was prosecuting the war with the


Plaintiffs' reply is that the President's military action  against
Yugoslavia without congressional authorization had 




__________

n 4 The Court has "recognized that state legislators have standing  to
contest a decision holding a state statute unconstitutional if state 
law authorizes legislators to represent the State's interests," Arizo-
nans, 520 U.S. at 65 (citing Karcher v. May, 484 U.S. 72, 82 (1987)). 
Compare INS v. Chadha, 462 U.S. 919, 930 n.5, 939-40 (1983), in  which
the "Court held Congress to be a proper party to defend [a]  measure's
validity where both Houses, by resolution, had authorized 
intervention in the lawsuit," and the executive branch refused to 
defend the one-House veto provision. 520 U.S. at 65 n.20.


5 A vote is "completely nullified" when it is "deprived of all 
validity," Raines, 521 U.S. at 822, "overridden and virtually held for
 naught," id. at 822-23, or "stripped of its validity," id. at 824


the effect of completely nullifying their votes, of making their  votes
worthless. With respect to their vote against declaring  war, that
clearly is not true. A congressional declaration of  war carries with
it profound consequences.6 The United  States Code is thick with laws
expanding executive power "in  time of war." See Office of the Judge
Advocate General,  United States Air Force, Digest of War and
Emergency  Legislation Affecting the Department of Defense 171-84 
(1996) (listing statutes "effective in time of war"); cf. id. at 
185-91 (listing statutes "effective in time of national emergen- cy
declared by the President"); id. at 192-98 (listing statutes 
"effective in time of national emergency declared by Con- gress").7
Under these laws, the President's authority over 




__________

n 6 Although the United States has committed its armed forces into 
combat more than a hundred times, Congress has declared war only  five
times: the War of 1812, the Mexican-American War of 1848,  the
Spanish-American War of 1898, World War I, and World War  II. See
Congressional Research Service, Instances of Use of  United States
Armed Forces Abroad, 1789-1989 (Ellen C. Collier  ed., 1989),
reprinted in Thomas M. Franck & Michael J. Glennon,  Foreign Relations
and National Security Law 650 (2d ed. 1993);  Office of the Legal
Adviser, U.S. Department of State, The  Legality of United States
Participation in the Defense of Viet- nam (1966), reprinted in 1 The
Vietnam War and International  Law 583, 597 (Richard A. Falk ed.,
1968) (listing 125 incidents prior  to the Vietnam Conflict).


7 In the early days of the Republic, the power of the executive in 
time of war was constrained by an absence of legislation. For 
example, in Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), 
the Court rejected the argument that the President had the authori- ty
to confiscate enemy property found within the United States  without
explicit statutory authority even during a declared war.  See id. at
129. The same reasoning was applied to the taking of  ships on the
high seas in Little v. Barreme, 6 U.S. (2 Cranch) 170  (1804). Even in
the wake of World War II, after Congress passed a  large number of
war-related measures, the Court strictly construed  the President's
authority. The most notable example, of course, is  Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952)  ("The President's power,
if any, to issue the order must stem either 


industries, the use of land, and the terms and conditions of  military
employment is greatly enhanced.8 A declaration of  war may also have
the effect of decreasing commercial  choices and curtailing civil
liberties.9 See William H. Rehn- quist, All the Laws but One: Civil
Liberties in Wartime 218- 19 (1998) ("Without question the
government's authority to  engage in conduct that infringes civil
liberty is greatest in  time of declared war--the Schenck and
Hirabayashi opinions  make this clear.... [B]ut from the point of view
of govern- mental authority under the Constitution, it is clear that
the  President may do many things in carrying out a congressional 
directive that he may not be able to do on his own.").




__________

n from an act of Congress or from the Constitution itself."); cf. also 
Dames & Moore v. Regan, 453 U.S. 654 (1981).


8 See, e.g., 10 U.S.C. s 2538 (authorizing the President to "take 
immediate possession of any plant that is equipped to manufacture,  or
that ... is capable of manufacturing" war material "in time of  war or
when war is imminent"); 10 U.S.C. s 2644 ("In time of war,  the
President, through the Secretary of Defense, may take posses- sion and
assume control of all or part of any system of transporta- tion to
transport troops, war material, and equipment, or for other  purposes
related to the emergency."); 10 U.S.C. s 2663(b) ("In time  of war or
when war is imminent, the United States may, immediate- ly upon the
filing of a petition for condemnation under subsection  (a), take and
use the land to the extent of the interest sought to be  acquired.");
50 U.S.C. s 1829 ("Notwithstanding any other provi- sion of law, the
President, through the Attorney General, may  authorize physical
searches without a court order ... to acquire  foreign intelligence
information for a period not to exceed 15  calendar days following a
declaration of war by the Congress.").


9 See, e.g., 18 U.S.C. s 2388(a) ("Whoever, when the United  States is
at war, willfully causes or attempts to cause insubordina- tion,
disloyalty, mutiny, or refusal of duty, in the military or naval 
forces of the United States, or willfully obstructs the recruiting or 
enlistment service of the United States, to the injury of the service 
or the United States, or attempts to do so--Shall be fined under  this
title or imprisoned not more than twenty years, or both."); 18  U.S.C.
s 3287 (tolling statute of limitations for any offense involving 
fraud against the property of the United States until three years 
after the termination of hostilities).


The vote of the House on April 28, 1999, deprived President  Clinton of
these powers. The vote against declaring war  followed immediately
upon the vote not to require immediate  withdrawal. Those who voted
against a declaration of war  did so to deprive the President of the
authority to expand  hostilities beyond the bombing campaign and,
specifically, to  deprive him of the authority to introduce ground
troops into  the conflict. See 145 Cong. Rec. H2427-41 (daily ed. Apr.
28,  1999). There is no suggestion that despite the vote, Presi- dent
Clinton invaded Yugoslavia by land or took some other  action
authorized only during a declared war. It follows that  plaintiffs'
votes against declaring war were not for naught.  For that reason,
plaintiffs do not have standing to sue on  their constitutional


As to their claim under the War Powers Resolution, the  beauty of this
measure, or one of its defects (see the Adden- dum to this opinion),
is in its automatic operation: unless a  majority of both Houses
declares war, or approves continua- tion of hostilities beyond 60
days, or Congress is "physically  unable to meet as a result of an
armed attack upon the  United States," the Resolution requires the
President to  withdraw the troops. 50 U.S.C. s 1544(b). The President 
has nothing to veto. Congress may allow the time to run  without
taking any vote, or it may--as the House did here-- take a vote and
fail to muster a majority in favor of continu- ing the hostilities.


To put the matter in terms of Raines once again, plaintiffs  had the
votes "sufficient to defeat" "a specific legislative  action"--they
blocked a resolution authorizing the President's  continuation of the
war with Yugoslavia--but it is not true, in  the language of Raines,
that this "legislative action" never- theless went "into effect."
Congressional authorization sim- ply did not occur. The President may
have acted as if he had  Congress's approval, or he may have acted as
if he did not  need it. Either way, plaintiffs' real complaint is not
that the  President ignored their votes; it is that he ignored the War
 Powers Resolution, and hence the votes of an earlier Con- gress,
which enacted the law over President Nixon's veto. It  is hard for me
to see that this amounts to anything more than 


saying: "We, the members of Congress, have standing be- cause the
President violated one of our laws." To hold that  Members of Congress
may litigate on such a basis strikes me  as highly problematic, not
only because the principle is uncon- fined but also because it raises
very serious separation-of- powers concerns. See Raines, 521 U.S. at
825 n.8; Barnes v.  Kline, 759 F.2d 21, 41 (D.C. Cir. 1985) (Bork, J.,
dissenting),  vacated as moot, 479 U.S. 361 (1987). But because the
case is  moot, I need say no more.


B.


The majority opinion analyzes standing rather differently  than I do.
It says plaintiffs lack standing to pursue their  statutory claim
because "they continued, after the votes, to  enjoy ample legislative
power to have stopped prosecution of  the 'war.' " Maj. op. at 8. For
specifics, the opinion points  out that Congress defeated House
Concurrent Resolution 82,  a resolution requiring immediate
disengagement from the  conflict in Yugoslavia; that "Congress always
retains appro- priations authority and could have cut off funds for
the  American role in the conflict";10 and that "there always 




__________

n 10 The majority attaches some importance to Congress's decision  to
authorize funding for Operation Allied Force and argues that  Congress
could have denied funding if it wished to end the war.  However, in
Mitchell v. Laird, 488 F.2d 611, 616 (D.C. Cir. 1973),  we held that,
as "every schoolboy knows," Congress may pass such  legislation, not
because it is in favor of continuing the hostilities, but  because it
does not want to endanger soldiers in the field. The War  Powers
Resolution itself makes the same point: "Authority to  introduce
United States Armed Forces into hostilities or into situa- tions
wherein involvement in hostilities is clearly indicated by the 
circumstances shall not be inferred ... from any provision of law 
(whether or not in effect before November 7, 1973), including any 
provision contained in any appropriation Act, unless such provi- sion
specifically authorizes the introduction of United States Armed 
Forces into hostilities or into such situations and states that it is 
intended to constitute specific statutory authorization within the 
meaning of this chapter." 50 U.S.C. s 1547(a)(1) (emphasis added). 
Those portions of the Emergency Supplemental Appropriations Act, 


remains the possibility of impeachment." Id.11 The same  reason--the
possibility of future legislative action--is used to  defeat
plaintiffs' standing with respect to their constitutional  claim. Id.


The majority has, I believe, confused the right to vote in  the future
with the nullification of a vote in the past, a  distinction Raines
clearly made. See 521 U.S. at 824. To say  that your vote was not
nullified because you can vote for  other legislation in the future is
like saying you did not lose  yesterday's battle because you can fight
again tomorrow.  The Supreme Court did not engage in such illogic.
When the  Court in Raines mentioned the possibility of future legisla-
tion, it was addressing the argument that "the [Line Item  Veto] Act
will nullify the [Congressmen's] votes in the fu- ture...." Id. This
part of the Court's opinion, which the  majority adopts here, is quite
beside the point to our case.  No one is claiming that their votes on
future legislation will  be impaired or nullified or rendered


Besides, as long as Congress and the Constitution exist,  Members will
always be able to vote for legislation. And so  the majority's
decision is tantamount to a decision abolishing  legislative standing.
I have two problems with this. First, if  we are going to get rid of
legislative standing altogether, we  ought to do so openly and not
under the cover of an interpre- tation, or rather misinterpretation,
of a phrase in Raines. If  the Supreme Court had meant to do away with
legislative 




__________

n Pub. L. No. 106-31, 113 Stat. 57, relating to the attacks on 
Yugoslavia specified the limited purpose for the emergency appro-
priations, but contained no language even roughly approximating  that
required by the War Powers Resolution. See id., ch. 3, 113  Stat.


11 These are not the only possibilities. "It has been thought that 
Congress could constitutionally cut the President's salary in half 
and auction off the White House, reduce the President's staff to one 
secretary, and limit her or him to answering personal correspon-
dence." A. Raymond Randolph, Introduction--Disciplining Con- gress:
The Boundaries of Legislative Power, 13 J.L. & Pol. 585,  586


standing, it would have said so and it would have given  reasons for
taking that step.


My second problem is just as serious, perhaps more so: the  majority's
decision conflicts with this court's latest legislative  standing
decision. In Chenoweth v. Clinton, 181 F.3d 112,  116-17 (D.C. Cir.
1999), we interpreted Raines consistently  with my analysis in this
case and concluded that a previous  legislative standing decision of
this court--Kennedy v. Samp- son, 511 F.2d 430 (D.C. Cir.
1974)--upholding legislative  standing to challenge the legality of a
pocket veto was still  good law. The plaintiff in Kennedy had standing
under the  proper interpretation of Raines, we held, because the
"pocket  veto challenged in that case had made ineffective a bill that
 both houses of the Congress had approved. Because it was  the
President's veto--not a lack of legislative support--that  prevented
the bill from becoming law (either directly or by  the Congress voting
to override the President's veto), those in  the majority could
plausibly describe the President's action as  a complete nullification
of their votes." 181 F.3d at 116-17.  If Chenoweth is correct, the
majority opinion in this case  must be wrong. If Chenoweth is correct,
it is no answer to  say--as the majority says in this case--that
standing is  lacking because, despite the pocket veto, Congress could
pass  the same law again, or it could retaliate by cutting off 
appropriations for the White House or it could impeach the 


C.


My position, the majority complains, "sidesteps" plaintiffs'  merits
"claim that the President unconstitutionally conducted  a war without
authority," Maj. op. at 9. This is meant to be  criticism? A
properly-conducted standing analysis almost  always
avoids--sidesteps--a decision on the merits.12 In the 




__________

n 12 The majority drops this footnote: "It is certainly not logically 
necessary for appellants to assert a violation of the statutes ... 
relied upon by the concurrence in order to make their constitutional 
claim." Maj. op. at 9 n.5. How strange a statement. I refer to the 
statutes not in the context of plaintiffs' making their constitutional


next breath, the majority turns around and contradicts itself, 
proclaiming that my analysis "conflates standing with the  merits."
Id. I am familiar with what I have written. I do  not recall having
rendered a judgment about whether the  President violated the
Constitution. The careful reader will,  I think, agree with me. Nor do
I present "as an alternative  reason for denying standing that the
President did not ...  take any actions constituting war in the
constitutional sense."  Id. The majority's sentence is doubly
misleading. Here is  my alternative reason for denying standing, pure
and simple:  regardless whether President Clinton waged a "war,"
plain- tiffs never claimed that he exercised statutory authority 
reserved to him only when Congress has declared a war; and  so their
votes against declaring war cannot be considered a  nullity. Thus,
one, I have taken no position on whether the  President engaged in a
"war," and two, I say only that  plaintiffs never alleged that the
President utilized these statu- tory powers. Too often a strategy in
legal argumentation is  to pretend to answer an argument by misstating
it.13 My  argument remains unanswered. All the majority has done is 
to misstate it almost as badly as it has misread Raines.


II. Mootness


The amended complaint, filed on May 19, 1999, sought a  declaratory
judgment "that no later than May 25, 1999, the  President must
terminate the involvement of the United  States Armed Forces in such
hostilities unless Congress  declares war, or enacts other explicit
authorization, or has  extended the sixty day period." Amended




__________

n claim, but in regard to their standing to litigate that claim. It is
as  if the majority had made this brow-furrowing statement: "in order 
to make out their constitutional claim, it is not logically necessary 
for plaintiffs to assert that their votes were nullified within the 
meaning of Raines."


13 See also the sentence attributing to me the "argument that 
legislators should not be required to turn to politics instead of the 
courts for their remedy." Maj. op. at 10. There are other exam- ples
not worth mentioning.


see 50 U.S.C. s 1544(b)(1)-(2). All agree that the "hostilities"  ended
by June 21, 1999, after NATO's Secretary General  announced the
official termination of the air campaign and  Secretary of Defense
Cohen announced the redeployment of  more than 300 U.S. aircraft back
to their home bases.


To save their case from mootness, plaintiffs therefore in- voke the
rule regarding issues "capable of repetition, yet  evading review."
Southern Pacific Terminal Co. v. ICC, 219  U.S. 498, 515 (1911);
Christian Knights of the Ku Klux Klan  v. District of Columbia, 972
F.2d 365, 369-71 (D.C. Cir. 1992).  Plaintiffs must, but cannot,
satisfy both elements to prevail.  Their constitutional and statutory
claims are at cross pur- poses.


The "evading review" part of the formulation is temporal.  How quickly
must an activity begin and end to evade judicial  review? This depends
on which court does the reviewing.  The Supreme Court has treated the
matter in terms of itself.  Hence evading review means evading Supreme
Court review,  see Christian Knights, 972 F.2d at 369, which can be
(though  usually is not) swift review. See, e.g., New York Times Co.
v.  United States, 403 U.S. 713 (1971); Buckley v. Valeo, 424  U.S. 1
(1976). Some undeclared wars, or in the euphemism of  the day,
"hostilities," are over quickly; others, like the Kore- an War and the
war in Vietnam, last for years. Circuit  precedent requires us to
determine whether the activity  challenged is "inherently" of a sort
that evades review; cir- cuit precedent also holds that "offensive
wars initiated with- out congressional approval" are not in that
category. Co- nyers v. Reagan, 765 F.2d 1124, 1128 (D.C. Cir. 1985).
That  holding, which remains the law of the circuit, means that we 
must treat plaintiffs' claims as moot.


Plaintiffs' statutory claim--that President Clinton contin- ued the war
for more than 60 days without congressional  authorization, in
violation of the War Powers Resolution--also  may not satisfy the
"capable of repetition" element. There is  an aspect of probability
involved here. "By 'capable of  repetition' the Supreme Court means 'a
reasonable expecta- tion that the same complaining party would be
subject to the 


same action again.' " Christian Knights, 972 F.2d at 370  (quoting
Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per  curiam)).14 This
introduces some complications. Who should  be considered the "same
complaining parties"? And what is  the "same action again"?


The same "complaining parties" must refer to the individu- al Members
of Congress who brought this suit. They have  sued in their official
capacity and, as in Karcher v. May, 484  U.S. 72, 79-81 (1987), the
injury they allege relates to their  conduct as legislators. Thus, in
assessing the likelihood of a  recurrence of "the same action," the
inquiry must be restrict- ed only to the period in which these
Congressmen would  likely remain in office. As to the "same action,"
this refers to  President Clinton's alleged violation of the War
Powers Reso- lution by continuing hostilities for more than 60 days
without  Congress's affirmative approval. How likely is that to recur?
 Not very, if history is any guide. The War Powers Resolu- tion has
been in effect for a quarter of a century. Yet  President Clinton is
the first President who arguably violated  the 60-day provision. In
order to show why their claims will  "evade review," plaintiffs tell
us that, in modern times, United  States attacks on foreign nations
will be over quickly, by  which they mean less than 60 days.15




__________

n 14 The Supreme Court recently stated that "a defendant claiming  that
its voluntary compliance moots a case bears the formidable  burden of
showing that it is absolutely clear the allegedly wrongful  behavior
could not reasonably be expected to recur." Friends of  the Earth,
2000 WL 16307, at *14 (citing United States v. Concen- trated
Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)). The  President's
cessation of the attack on Yugoslavia was not "volun- tary" within the
Court's meaning; the war ended because the  United States won, not
because the President sought to avoid  litigation.


15 "The 1998 air attack against Afghanistan and Sudan, the De- cember
1998 air attacks against Iraq, the 1995 air assault against  the
Bosnian Serbs, the 1994 Haitian invasion, the 1991 Persian Gulf  War,
the 1989 Panama invasion, the 1986 air attack against Lybia,  the 1983
Grenada attack were all completed in less than 60 days."  Reply Brief
for Plaintiffs-Appellants at 5-6.


tion as accurate dooms their case. It means that the likeli- hood of
this President, or some other, violating the 60-day  provision of the
War Powers Resolution is remote, not only  because we can expect other
Presidents to obtain congres- sional approval for wars lasting more
than 60 days, but also  because most military actions in the future
(as plaintiffs  agree) will be over before the 60-day limit for
undeclared or  unauthorized wars has been exceeded.


ADDENDUM


Veto of War Powers Resolution The President's Message to the House of 
Representatives Returning H.J. Res. 542 Without  His Approval. October
24, 1973 


To the House of Representatives:


I hereby return without my approval House Joint Resolu- tion 542--the
War Powers Resolution. While I am in accord  with the desire of the
Congress to assert its proper role in the  conduct of our foreign
affairs, the restrictions which this  resolution would impose upon the
authority of the President  are both unconstitutional and dangerous to
the best interests  of our Nation.


The proper roles of the Congress and the Executive in the  conduct of
foreign affairs have been debated since the found- ing of our country.
Only recently, however, has there been a  serious challenge to the
wisdom of the Founding Fathers in  choosing not to draw a precise and
detailed line of demarca- tion between the foreign policy powers of
the two branches.


The Founding Fathers understood the impossibility of fore- seeing every
contingency that might arise in this complex  area. They acknowledged
the need for flexibility in respond- ing to changing circumstances.
They recognized that foreign  policy decisions must be made through
close cooperation  between the two branches and not through rigidly
codified  procedures.


These principles remain as valid today as they were when  our
Constitution was written. Yet House Joint Resolution  542 would
violate those principles by defining the President's  powers in ways
which would strictly limit his constitutional  authority.


Clearly Unconstitutional


House Joint Resolution 542 would attempt to take away, by  a mere
legislative act, authorities which the President has  properly
exercised under the Constitution for almost 200  years. One of its
provisions would automatically cut off  certain authorities after
sixty days unless the Congress ex-


tended them. Another would allow the Congress to eliminate  certain
authorities merely by the passage of a concurrent  resolution--an
action which does not normally have the force  of law, since it denies
the President his constitutional role in  approving legislation.


I believe that both these provisions are unconstitutional. The  only
way in which the constitutional powers of a branch of the  Government
can be altered is by amending the Constitution-- and any attempt to
make such alterations by legislation alone  is clearly without


Undermining Our Foreign Policy


While I firmly believe that a veto of House Joint Resolution  542 is
warranted solely on constitutional grounds, I am also  deeply
disturbed by the practical consequences of this resolu- tion. For it
would seriously undermine this Nation's ability  to act decisively and
convincingly in times of international  crisis. As a result, the
confidence of our allies in our ability to  assist them could be
diminished and the respect of our  adversaries for our deterrent
posture could decline. A per- manent and substantial element of
unpredictability would be  injected into the world's assessment of
American behavior,  further increasing the likelihood of


If this resolution had been in operation, America's effective  response
to a variety of challenges in recent years would have  been vastly
complicated or even made impossible. We may  well have been unable to
respond in the way we did during  the Berlin crisis of 1961, the Cuban
missile crisis of 1962, the  Congo rescue operation in 1964, and the
Jordanian crisis of  1970--to mention just a few examples. In
addition, our  recent actions to bring about a peaceful settlement of
the  hostilities in the Middle East would have been seriously 
impaired if this resolution had been in force.


While all the specific consequences of House Joint Resolu- tion 542
cannot yet be predicted, it is clear that it would  undercut the
ability of the United States to act as an effective  influence for
peace. For example, the provision automatically 


cutting off certain authorities after 60 days unless they are  extended
by the Congress could work to prolong or intensify  a crisis. Until
the Congress suspended the deadline, there  would be at least a chance
of United States withdrawal and  an adversary would be tempted
therefore to postpone serious  negotiations until the 60 days were up.
Only after the  Congress acted would there be a strong incentive for
an  adversary to negotiate. In addition, the very existence of a 
deadline could lead to an escalation of hostilities in order to 
achieve certain objectives before the 60 days expired.


The measure would jeopardize our role as a force for peace  in other
ways as well. It would, for example, strike from the  President's hand
a wide range of important peace-keeping  tools by eliminating his
ability to exercise quiet diplomacy  backed by subtle shifts in our
military deployments. It would  also cast into doubt authorities which
Presidents have used to  undertake certain humanitarian relief
missions in conflict  areas, to protect fishing boats from seizure, to
deal with ship  or aircraft hijackings, and to respond to threats of
attack.  Not the least of the adverse consequences of this resolution 
would be the prohibition contained in section 8 against fulfill- ing
our obligations under the NATO treaty as ratified by the  Senate.
Finally, since the bill is somewhat vague as to when  the 60 day rule
would apply, it could lead to extreme confu- sion and dangerous
disagreements concerning the preroga- tives of the two branches,
seriously damaging our ability to  respond to international crises.


Failure to Require Positive Congressional Action


I am particularly disturbed by the fact that certain of the 
President's constitutional powers as Commander in Chief of  the Armed
Forces would terminate automatically under this  resolution 60 days
after they were invoked. No overt Con- gressional action would be
required to cut off these powers-- they would disappear automatically
unless the Congress ex- tended them. In effect, the Congress is here
attempting to  increase its policy-making role through a provision
which  requires it to take absolutely no action at all.


In my view, the proper way for the Congress to make  known its will on
such foreign policy questions is through a  positive action, with full
debate on the merits of the issue and  with each member taking the
responsibility of casting a yes  or no vote after considering those
merits. The authorization  and appropriations process represents one
of the ways in  which such influence can be exercised. I do not,
however,  believe that the Congress can responsibly contribute its
con- sidered, collective judgment on such grave questions without 
full debate and without a yes or no vote. Yet this is precisely  what
the joint resolution would allow. It would give every  future Congress
the ability to handcuff every future Presi- dent merely by doing
nothing and sitting still. In my view,  one cannot become a
responsible partner unless one is pre- pared to take responsible


Strengthening Cooperation Between the Congress and the  Executive
Branches


The responsible and effective exercise of the war powers  requires the
fullest cooperation between the Congress and  the Executive and the
prudent fulfillment by each branch of  its constitutional
responsibilities. House joint Resolution 542  includes certain
constructive measures which would foster  this process by enhancing
the flow of information from the  executive branch to the Congress.
Section 3, for example,  calls for consultations with the Congress
before and during  the involvement of the United States forces in
hostilities  abroad. This provision is consistent with the desire of
this  Administration for regularized consultations with the Con- gress
in an even wider range of circumstances.


I believe that full and cooperative participation in foreign  policy
matters by both the executive and the legislative  branches could be
enhanced by a careful and dispassionate  study of their constitutional
roles. Helpful proposals for such  a study have already been made in
the Congress. I would  welcome the establishment of a non-partisan
commission on  the constitutional roles of the Congress and the
President in  the conduct of foreign affairs. This commission could
make a  thorough review of the principal constitutional issues in 


Executive-Congressional relations, including the war powers,  the
international agreement powers, and the question of  Executive
privilege, and then submit its recommendations to  the President and
the Congress. The members of such a  commission could be drawn from
both parties--and could  represent many perspectives including those
of the Congress,  the executive branch, the legal profession, and the
academic  community.


This Administration is dedicated to strengthening coopera- tion between
the Congress and the President in the conduct  of foreign affairs and
to preserving the constitutional prerog- atives of both branches of
our Government. I know that the  Congress shares that goal. A
commission on the constitution- al roles of the Congress and the
President would provide a  useful opportunity for both branches to
work together toward  that common objective.


Richard Nixon


The White House,  October 24, 1973.


Tatel, Circuit Judge, concurring: Although I agree with  Judge
Silberman that Raines v. Byrd, 521 U.S. 811 (1997), as  interpreted by
this court in Chenoweth v. Clinton, 181 F.3d  112 (D.C. Cir. 1999),
deprives plaintiffs of standing to bring  this action, I do not share
his view that the case poses a  nonjusticiable political question. See
supra (Silberman, J.,  concurring). In my view, were this case brought
by plaintiffs  with standing, we could determine whether the
President, in  undertaking the air campaign in Yugoslavia, exceeded
his  authority under the Constitution or the War Powers Resolu-


To begin with, I do not agree that courts lack judicially  discoverable
and manageable standards for "determining the  existence of a 'war.' "
Brief of Appellee at 36. See also  supra at 1-2 (Silberman, J.,
concurring). Whether the mili- tary activity in Yugoslavia amounted to
"war" within the  meaning of the Declare War Clause, U.S. Const. art.
I, s 8,  cl. 11, is no more standardless than any other question 
regarding the constitutionality of government action. Pre- cisely what
police conduct violates the Fourth Amendment  guarantee "against
unreasonable searches and seizures?"  When does government action
amount to "an establishment of  religion" prohibited by the First
Amendment? When is an  election district so bizarrely shaped as to
violate the Four- teenth Amendment guarantee of "equal protection of
the  laws?" Because such constitutional terms are not self- defining,
standards for answering these questions have  evolved, as legal
standards always do, through years of  judicial decisionmaking. Courts
have proven no less capable  of developing standards to resolve war


Since the earliest years of the nation, courts have not  hesitated to
determine when military action constitutes "war."  In Bas v. Tingy, 4
U.S. 37 (1800), the Supreme Court had to  decide whether hostilities
between France and the United  States amounted to a state of war in
order to resolve disputes  over captured ships. Because outright war
had not been  declared, the justices examined both the facts of the
conflict  ("the scene of bloodshed, depredation and confiscation,
which  has unhappily occurred," id. at 39) and the acts of Congress 
that had authorized limited military action: "In March 1799, 


congress had raised an army; stopped all intercourse with  France;
dissolved our treaty; built and equipt ships of war;  and commissioned
private armed ships; enjoining the former,  and authorising the
latter, to defend themselves against the  armed ships of France, to
attack them on the high seas, to  subdue and take them as prize, and
to re-capture armed  vessels found in their possession." Id. at 41.
Given these  events, Justice Bushrod Washington concluded that France 
and the United States were at war both "[i]n fact and in law."  Id. at
42. "If they were not our enemies," he said, "I know  not what
constitutes an enemy." Id. at 41. One year later,  Chief Justice
Marshall, focusing on the same conflict with  France, said: "The whole
powers of war being, by the consti- tution of the United States,
vested in congress, the acts of  that body can alone be resorted to as
our guides in this  enquiry.... To determine the real situation of
America in  regard to France, the acts of congress are to be
inspected."  Talbot v. Seeman, 5 U.S. 1, 28 (1801).


Half a century later, in The Prize Cases, 67 U.S. 635, 666  (1862), the
Court had to determine whether a state of war,  though undeclared,
existed "de facto" between the United  States and the confederacy, and
if so, whether it justified the  U.S. naval blockade of confederate
ports. "As a civil war is  never publicly proclaimed, ... its actual
existence is a fact in  our domestic history which the Court is bound
to notice and  to know." Id. at 667. There was no formal declaration
of  war, the Court explained, because the Constitution does not 
permit Congress to "declare war against a State, or any  number of
States." Id. at 668. Yet the Court, guided by the  definition of war
as "[t]hat state in which a nation prosecutes  its right by force,"
id. at 666, determined that a state of war  actually existed. "A civil
war is never solemnly declared; it  becomes such by its accidents--the
number, power, and orga- nization of the persons who originate and
carry it on. When  the party in rebellion occupy and hold in a hostile
manner a  certain portion of territory; have declared their indepen-
dence; have cast off their allegiance; have organized armies;  have
commenced hostilities against their former sovereign,  the world
acknowledges them as belligerents, and the contest 


a war." Id. at 666-67. In making this determination, the  Court looked
to the facts of the conflict, id., to the acts of  foreign governments
recognizing the war and declaring their  neutrality, id. at 669, and
to congressional action authorizing  the President's use of force, id.
at 670-71. Given these facts,  the Court refused "to affect a
technical ignorance of the  existence of a war, which all the world
acknowledges to be the  greatest civil war known in the history of the
human race."  Id. at 669.


More recent cases have also recognized the competence of  courts to
determine whether a state of war exists. Respond- ing to a challenge
to the constitutionality of the Vietnam War,  this circuit confronted
"the critical question ... whether the  hostilities in Indo-China
constitute in the Constitutional  sense a 'war,' both within and
beyond the meaning of that  term in Article I, Section 8, Clause 11."
Mitchell v. Laird,  488 F.2d 611, 614 (D.C. Cir. 1973) (emphasis
added). The  court found "no insuperable difficulty in a court
determining  whether," given the extent of the hostilities, "there has
been a  war in Indo-China." Id. Once the war was recognized as  such,
the court saw no problem in "facing up to the question  as to whether
because of the war's duration and magnitude  the President is or was
without power to continue the war  without Congressional approval," or
"whether Congress has  given, in a Constitutionally satisfactory form,
the approval  requisite for a war of considerable duration and
magnitude."  Id. Nor did the court hesitate to determine that once the
 Gulf of Tonkin resolution had been repealed, later congres- sional
actions appropriating funds for the war and extending  the draft were
insufficient to "serve as a valid assent to the  Vietnam war." Id. at
615. Given this absence of congres- sional approval for the war's
continuation, the President had a  duty to try "in good faith and to
the best of his ability, to  bring the war to an end as promptly as
was consistent with  the safety of those fighting and with a profound
concern for  the durable interests of the nation--its defense, its
honor, its  morality." Id. at 616. Although the court ultimately
declined  to answer the question whether President Nixon was in fact 
fulfilling his duty to end the Vietnam War, see id., it nonethe-


less made clear that courts are competent to adjudge the  existence of
war and the allocation of war powers between the  President and
Congress. Regardless of whether this lan- guage is dicta, see supra at
2 (Silberman, J., concurring),  Mitchell supports my view that this
court could resolve the  war powers claims presented here. See also,
e.g., Massachu- setts v. Laird, 451 F.2d 26, 34 (1st Cir. 1971) ("The
war in  Vietnam is a product of the jointly supportive actions of the 
two branches to whom the congeries of the war powers have  been
committed. Because the branches are not in opposition,  there is no
necessity of determining boundaries. Should  either branch be opposed
to the continuance of hostilities,  however, and present the issue in
clear terms, a court might  well take a different view."); Orlando v.
Laird, 443 F.2d  1039, 1042 (2d Cir. 1971) ("[T]he constitutional
delegation of  the war-declaring power to the Congress contains a
discover- able and manageable standard imposing on the Congress a 
duty of mutual participation in the prosecution of war. Judi- cial
scrutiny of that duty, therefore, is not foreclosed by the  political
question doctrine."); Berk v. Laird, 429 F.2d 302, 305  (2d Cir. 1970)
("History makes clear that the congressional  power 'to declare War'
conferred by Article I, section 8, of the  Constitution was intended
as an explicit restriction upon the  power of the Executive to
initiate war on his own prerogative  which was enjoyed by the British
sovereign.... [E]xecutive  officers are under a threshold
constitutional duty which can  be judicially identified and its breach
judicially determined.")  (internal quotation marks and brackets


Without undue difficulty, courts have also determined  whether
hostilities amount to "war" in other contexts. These  have included
insurance policies and other contracts, see, e.g.,  Western Reserve
Life Ins. Co. v. Meadows, 152 Tex. 559, 567,  261 S.W.2d 554, 559
(1953) ("We are unwilling in deciding this  case to shut our eyes to
what everyone knows, that there has  been ... actually and in reality
a war in Korea in which the  United States has been seriously
engaged."); Pan Am. World  Airways, Inc. v. Aetna Casualty & Sur. Co.,
505 F.2d 989,  1012-15 (2d Cir. 1974); Navios Corp. v. The Ulysses II,


F. Supp. 932 (D.Md. 1958), aff'd, 260 F.2d 959 (4th Cir. 1958),  the
Federal Tort Claims Act, see, e.g., Koohi v. United States,  976 F.2d
1328 (9th Cir 1992) (noting that even absent a  formal declaration,
"no one can doubt that a state of war  existed when our armed forces
marched first into Kuwait and  then into Iraq"); Rotko v. Abrams, 338
F. Supp. 46, 47-48  (D.Conn. 1971), aff'd 455 F.2d 992 (2d Cir. 1972),
and provi- sions of military criminal law applicable "in time of war,"
see,  e.g., United States v. Anderson, 17 U.S.C.M.A. 588 (1968); 
United States v. Ayers, 4 U.S.C.M.A. 220 (1954).


Although courts have thus determined the existence of war  as defined
by the Constitution, statutes, and contracts, in this  case
plaintiffs' War Powers Resolution claim would not even  require that
we do so. We would need to ask only whether,  and at what time,
"United States Armed Forces [were]  introduced into hostilities or
into situations where imminent  involvement in hostilities [was]
clearly indicated by the cir- cumstances." 50 U.S.C. s 1543(a)(1). On
this question, the  record is clear. In his report to the Speaker of
the House  and the President pro tempore of the Senate, transmitted 
"consistent with the War Powers Resolution," President Clin- ton
stated: "on March 24, 1999, U.S. military forces, at my  direction ...
began a series of air strikes in the Federal  Republic of
Yugoslavia...." 35 Weekly Comp. Pres. Doc.  527 (March 26, 1999),
available at 1999 WL 12654381. Pursu- ant to the priority procedures
of the War Powers Resolution,  50 U.S.C. ss 1545-46, both houses of
Congress responded by  expediting consideration of resolutions to
declare war, H.J.  Res 44, to authorize airstrikes, S.J. Res. 20, and
to withdraw  troops, H. Con. Res. 82. Defense Secretary William Cohen 
told the Senate Armed Services Committee: "We're certainly  engaged in
hostilities, we're engaged in combat." Hearing on  Kosovo, Senate
Armed Services Comm., 106th Cong., April  15, 1999, 1999 WL 221637
(testimony of William Cohen,  Secretary of Defense). President Clinton
issued an Execu- tive Order designating the region a U.S. combat zone
and  March 24 as "the date of the commencement of combatant 
activities in such zone." Exec. Order No. 13,119, 64 Fed.  Reg. 18797


The undisputed facts of this case are equally compelling  with respect
to plaintiffs' constitutional claim. If in 1799 the  Supreme Court
could recognize that sporadic battles between  American and French
vessels amounted to a state of war, and  if in 1862 it could examine
the record of hostilities and  conclude that a state of war existed
with the confederacy,  then surely we, looking to similar evidence,
could determine  whether months of daily airstrikes involving 800 U.S.
aircraft  flying more than 20,000 sorties and causing thousands of 
enemy casualties amounted to "war" within the meaning of  Article I,
section 8, clause 11.


Determining whether a state of war exists would certainly  be more
difficult in situations involving more limited military  force over a
shorter period of time. But just as we never  shrink from deciding a
First Amendment case simply because  we can imagine a more difficult
one, the fact that a challenge  to a different military action might
present a closer question  would not justify abdicating our
responsibility to construe the  law and apply it to the facts of this


Nor is the question nonjusticiable because the President, as  Commander
in Chief, possesses emergency authority to use  military force to
defend the nation from attack without ob- taining prior congressional
approval. Judge Silberman's sug- gestion notwithstanding, see supra at
5-6 (Silberman, J.,  concurring), President Clinton does not claim
that the air  campaign was necessary to protect the nation from
imminent  attack. In his report to Congress, the President explained 
that the military action was "in response to the FRY govern- ment's
continued campaign of violence and repression against  the ethnic
Albanian population in Kosovo." 35 Weekly Comp.  Pres. Doc. 527 (Mar.
26, 1999), available at 1999 WL  12654381. Although the President also
said that military  action would prevent an expanded war in Europe,
see Radio  Address of the President to the Nation, March 27, 1999, 
available at 1999 WL 170552, he never claimed that an  emergency
required him to act without congressional authori- zation; in fact,
the Kosovo issue had been festering for years.  See Declaration of
Thomas Pickering, Undersecretary of  State for Political Affairs, JA


The government also claims that this case is nonjusticiable  because it
"requires a political, not a judicial, judgment."  The government has
it backwards. Resolving the issue in  this case would require us to
decide not whether the air  campaign was wise--a "policy choice[ ] and
value determina- tion[ ] constitutionally committed for resolution to
the halls of  Congress or the confines of the Executive Branch," Japan
 Whaling Ass'n v. American Cetacean Soc'y, 478 U.S. 221, 230 
(1986)--but whether the President possessed legal authority  to
conduct the military operation. Did the President exceed  his
constitutional authority as Commander in Chief? Did he  intrude on
Congress's power to declare war? Did he violate  the War Powers
Resolution? Presenting purely legal issues,  these questions call on
us to perform one of the most impor- tant functions of Article III
courts: determining the proper  constitutional allocation of power
among the branches of  government. Although our answer could well have
political  implications, "the presence of constitutional issues with
signif- icant political overtones does not automatically invoke the 
political question doctrine. Resolution of litigation challeng- ing
the constitutional authority of one of the three branches  cannot be
evaded by courts because the issues have political  implications...."
INS v. Chadha, 462 U.S. 919, 942-43  (1983). See also Baker v. Carr,
369 U.S. 186, 217 (1962)  ("The doctrine ... is one of 'political
questions,' not one of  'political cases.' The courts cannot reject as
'no law suit' a  bona fide controversy as to whether some action
denominated  'political' exceeds constitutional authority."). This is
so even  where, as here (and as in the other cases discussed above), 
the issue relates to foreign policy. See Baker, 369 U.S. at 211 
("[I]t is error to suppose that every case or controversy which 
touches foreign relations lies beyond judicial cognizance"). If  "we
cannot shirk [our] responsibility" to decide whether an  Act of
Congress requires the President to impose economic  sanctions on a
foreign nation for diminishing the effectiveness  of an international
treaty, a question rife with "political  overtones," Japan Whaling
Ass'n, 478 U.S. at 230, then  surely we cannot shirk our


the President exceeded his constitutional or statutory authori- ty by
conducting the air campaign in Yugoslavia.


The Government's final argument--that entertaining a war  powers
challenge risks the government speaking with "multi- farious voices"
on a delicate issue of foreign policy--fails for  similar reasons.
Because courts are the final arbiters of the  constitutionality of the
President's actions, "there is no possi- bility of 'multifarious
pronouncements' on this question."  Chadha, 462 U.S. at 942. Any
short-term confusion that  judicial action might instill in the mind
of an authoritarian  enemy, or even an ally, is but a small price to
pay for  preserving the constitutional separation of powers and pro-
tecting the bedrock constitutional principle that "[i]t is em-
phatically the province and duty of the judicial department to  say
what the law is." Marbury v. Madison, 5 U.S. 137, 177  (1803).