concurring:
Although I agree with Judge Silberman that Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (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 Resolution.
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 24-25 (Silberman, J., concurring). Whether the military activity in Yugoslavia amounted to “war” within the meaning of the Declare War Clause, U.S. Const, art. I, § 8, cl. 11, is no more standardless than any other question regarding the constitutionality of government action. Precisely 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 Fourteenth 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 powers challenges.
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. (4 Dall.) 37, 1 L.Ed. 731 (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, *38and 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 constitution 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 Cranch) 1, 28, 2 L.Ed. 15 (1801).
Half a century later, in The Prize Cases, 67 U.S. (2 Black) 635, 666, 17 L.Ed. 459 (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 organization 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 independence; 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. Responding 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 Indochina.” 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 congressional 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 congressional 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 *39was 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 nonetheless 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 language is dicta, see supra at 25 (Silberman, J., concurring), Mitchell supports my view that this court could resolve the war powers claims presented here. See also, e.g., Massachusetts 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 discoverable and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war. Judicial 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.... [Executive officers are under a threshold constitutional duty which can be judicially identified and its breach judicially determined.”) (internal quotation marks and brackets omitted).
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, 161 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 provisions of military criminal law applicable “in time of war,” see, e.g., United States v. Anderson, 17 U.S.C.M.A. 588, 1968 WL 5425 (1968); United States v. Ayers, 4 U.S.C.M.A. 220, 1954 WL 2280 (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 circumstances.” 50 U.S.C. § 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 Clinton 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. Pursuant *40to the priority procedures of the War Powers Resolution, 50 U.S.C. §§ 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 Executive 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 (Apr. 13,1999).
The undisputed fácts 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 case.
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 obtaining prior congressional approval. Judge' Silberman’s suggestion notwithstanding, see supra at 27-28 (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 government’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 authorization; in fact, the Kosovo issue had been festering for years. See Declaration of Thomas Pickering, Undersecretary of State for Political Affairs, JA at 21.
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 determination[] 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, 106 S.Ct. 2860, 92 L.Ed.2d 166 (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 important functions of Article III courts: determining the proper constitutional alio-*41cation of power among the branches of government. Although our answer could well have political implications, “the presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine. Resolution of litigation challenging 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, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). See also Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (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, 82 S.Ct. 691 (“[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, 106 S.Ct. 2860, then surely we cannot shirk our responsibility to decide whether the President exceeded his constitutional or statutory authority by conducting the air campaign in Yugoslavia.
The Government’s final argument — that entertaining a war powers challenge risks the government speaking with “multifarious 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 possibility of ‘multifarious pronouncements’ on this question.” Chadha, 462 U.S. at 942, 103 S.Ct. 2764. 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 protecting the bedrock constitutional principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch), 137, 177, 2 L.Ed. 60 (1803).