The Power to (Not) Decide: Implications of Baker’s Fifth Factor for War Powers Reform

<p><i><span>Though the Constitution charges Congress with the responsibility to “declare War,” modern Presidents have unilaterally deployed sustained military force around the world with regularity. Greater presidential unilateralism in armed conflict is not without controversy, and Congress has passed legislation to rein in the Commander in Chief. Efforts to shift the allocation of the war powers away from the President have not been successful, however, partially because the courts are rarely willing to reach the merits of suits challenging the President’s authority to act on his own. Relying on a handful of (non)justiciability doctrines—most notably, the textual considerations set out in </span></i><span>Baker v. Carr</span><i><span>—the courts have almost universally dismissed such disputes as beyond the judicial power to decide, and war powers reformers have crafted their efforts accordingly.</span></i></p><i><span>This Note argues that </span></i><span>Baker</span><i><span>’s textual factors do not tell the whole story. The courts’ lack of military expertise or political accountability make it infeasible for them to adjudicate war powers disputes without endangering U.S. lives and foreign policy interests. </span></i><span>Baker</span><i><span>’s more prudential fifth factor, therefore, counsels against ruling at all in such cases, even if the textual factors do not. By elaborating and responding to these prudential arguments for nonjusticiability in the war powers arena, this Note offers a more complete account of justiciability issues in war powers disputes and highlights a shortcoming of recent war powers reform efforts. The Note concludes, however, that the fifth factor is not an insurmountable barrier: by codifying the remedy applicable where courts find violations of the WPR, Congress can take critical value judgments out of courts’ hands and thereby empower them to finally adjudicate war powers suits on their merits.</span></i>