IT IS NOT surprising that two federal judges in this city refused this week to become embroiled in the question of constitutional war-making powers. In separate actions, Judge Royce Lamberth dismissed a suit brought by a National Guardsman called to service in the Persian Gulf, and Judge Harold Greene turned down a request for an injunction against further presidential action in the Gulf, which had been sought by 54 members of Congress. As a rule, the courts shy away from intervening in war-powers situations in which the Constitution grants specific powers to both the executive and legislative branches.
Judge Lamberth's ruling was based on the traditional view that challenges to the president's war-making powers are political questions in which the courts shouldn't get involved. The judicial branch, he believes, "is neither equipped nor empowered to intrude into the realm of foreign affairs where the Constitution grants operational powers only to the two political branches and where decisions are made based on political and policy considerations." If Congress believes that the president is exceeding his powers, he found, it can use its own powers -- including appropriations and even impeachment -- to stop him.
While Judge Lamberth also ruled that the particular dispute about possible hostilities in the Gulf is not yet "ripe" for court consideration, this was the only reason cited by Judge Greene in the congressional case. His opinion is thus quite different from the traditional view that courts have no role in this area. Judge Greene specifically found that courts do have the power to determine what is war and what is not; that hostilities involving hundreds of thousands of American troops in the Gulf would, in fact, be war; and that in such a situation Congress would have the right to vote on a declaration of war, and a court could enjoin the president from acting without such a declaration. In this case, however, the executive has not yet moved irrevocably toward war, and Congress -- or at minimum a majority of its members -- has taken no action asserting its constitutional powers. Until both branches proceed to confrontation, Judge Greene ruled, the conflict is not ready for court.
His opinion provides abstract comfort to those pressing the case for congressional authority. But he did not grant the relief requested, and an appellate court will surely review his finding on judicial powers. Certainly he is correct on the question of ripeness. If Congress really wanted to assert its war-making powers it could have reconvened and voted at any time. Perhaps legislators prefer to give the president as much negotiating room as possible during these dangerous weeks, and perhaps a majority would support him in any event. There is still hope that the political process will function, and the two branches charged in the Constitution with responsibility for war and foreign affairs -- and unlike judges, answerable to the people -- will act in concert if crisis comes.