The Contemporary Presidency: Judicial Restraint and the New War Powers

Over the past four decades, members of Congress have filed 10 lawsuits challenging military actions abroad that were ordered or sustained by presidents without prior legislative consent. In dismissing these cases, federal courts told the plaintiffs to use their legislative tools to show disapproval of the actions already in progress. Under this logic, the House and Senate must have a veto‐proof supermajority to end an existing military engagement before a case can be heard on the merits. These precedents contrast with previous war powers cases initiated by private litigants, which focused on prior simple majority legislative authority for presidential action.