War Is Justiciable, Until It Isn’t
This chapter demonstrates that courts were once comfortable entering into the fray when they have clear congressional guidelines about war authorization (private lawsuits) and when members of Congress press their claims through political as well as legal channels (Cambodia cases). It also shows that federal courts can have a place in war powers conflicts—and they did up through the mid-twentieth century, but only in individual plaintiff cases. Although no federal court has ever ordered a president to stop a war, there was once more comfort in judicial engagement in war-related constitutional questions, at least from the founding generation through the Civil War and beyond; the Cold War changed all three branches' orientations. Member litigation began during the Vietnam War out of frustration with imbalance of power that took permanent root in the Cold War and then remained in the political culture under new international pressures in the 1990s and after 9/11. The chapter then details the first two member cases surrounding the Vietnam War's expansion.