Campbell, Tom v. Clinton, William J.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 1999 Decided February 18, 2000

No. 99-5214

Tom Campbell, Member,
U.S. House of Representatives, et al.,
Appellants

v.

William Jefferson Clinton,
President of the United States,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 99cv01072)

Jules L. Lobel argued the cause for appellants. With him
on the briefs were H. Lee Halterman, Joel E. Starr, Michael
Ratner, Jennifer M. Green, Franklin Siegel, William Good-
man, and James R. Klimaski.

 William B. Schultz, Deputy Assistant Attorney General,
U.S. Department of Justice, argued the cause for appellee.
On the brief were David W. Ogden, Acting Assistant Attor-
ney General, Mark B. Stern and Robert M. Loeb, Attorneys,
and Wilma A. Lewis, U.S. Attorney.

Before: Silberman, Randolph, and Tatel, Circuit Judges.

Opinion for the Court filed by Circuit Judge Silberman.

Separate concurring opinion filed by Circuit Judge
Silberman.

Separate opinion concurring in the judgment filed by
Circuit Judge Randolph.

Separate concurring opinion filed by Circuit Judge Tatel.

Silberman, Circuit Judge: A number of congressmen, led
by Tom Campbell of California, filed suit claiming that the
President violated the War Powers Resolution and the War
Powers Clause of the Constitution by directing U.S. forces'
participation in the recent NATO campaign in Yugoslavia.
The district court dismissed for lack of standing. We agree
with the district court and therefore affirm.

I.

On March 24, 1999, President Clinton announced the com-
mencement of NATO air and cruise missile attacks on Yugo-
slav targets. Two days later he submitted to Congress a
report, "consistent with the War Powers Resolution," detail-
ing the circumstances necessitating the use of armed forces,
the deployment's scope and expected duration, and asserting
that he had "taken these actions pursuant to [his] authority
... as Commander in Chief and Chief Executive." On April
28, Congress voted on four resolutions related to the Yugo-
slav conflict: It voted down a declaration of war 427 to 2 and
an "authorization" of the air strikes 213 to 213, but it also
voted against requiring the President to immediately end
U.S. participation in the NATO operation and voted to fund
that involvement. The conflict between NATO and Yugo-
slavia continued for 79 days, ending on June 10 with Yugo-

slavia's agreement to withdraw its forces from Kosovo and
allow deployment of a NATO-led peacekeeping force.1
Throughout this period Pentagon, State Department, and
NATO spokesmen informed the public on a frequent basis of
developments in the fighting.

Appellants, 31 congressmen opposed to U.S. involvement in
the Kosovo intervention, filed suit prior to termination of that
conflict seeking a declaratory judgment that the President's
use of American forces against Yugoslavia was unlawful un-
der both the War Powers Clause of the Constitution and the
War Powers Resolution ("the WPR"). See 50 U.S.C. s 1541
et seq. The WPR requires the President to submit a report
within 48 hours "in any case in which United States Armed
Forces are introduced ... into hostilities or into situations
where imminent involvement in hostilities is clearly indicated
by the circumstances," and to "terminate any use of United
States Armed Forces with respect to which a report was
submitted (or required to be submitted), unless the Congress
... has declared war or has enacted a specific authorization
for such use of United States Armed Forces" within 60 days.
Appellants claim that the President did submit a report
sufficient to trigger the WPR on March 26, or in any event
was required to submit a report by that date, but nonetheless
failed to end U.S. involvement in the hostilities after 60 days.
The district court granted the President's motion to dismiss,
see Campbell v. Clinton, 52 F. Supp.2d 34 (D.D.C. 1999), and
this appeal followed.

II.

The government does not respond to appellants' claim on
the merits. Instead the government challenges the jurisdic-
tion of the federal courts to adjudicate this claim on three
separate grounds: the case is moot; appellants lack standing,
as the district court concluded; and the case is non-

__________
1 U.S. forces are currently stationed in Kosovo, which remains
part of Yugoslavia, as part of the peacekeeping operation, but
appellants do not claim that this deployment is relevant to their
case.

justiciable. Since we agree with the district court that the
congressmen lack standing it is not necessary to decide
whether there are other jurisdictional defects.

The question whether congressmen have standing in feder-
al court to challenge the lawfulness of actions of the executive
was answered, at least in large part, in the Supreme Court's
recent decision in Raines v. Byrd, 521 U.S. 811 (1997).
Raines involved a constitutional challenge to the President's
authority under the short-lived Line Item Veto Act. Individ-
ual congressmen claimed that under that Act a President
could veto (unconstitutionally) only part of a law and thereby
diminish the institutional power of Congress. Observing it
had never held that congressmen have standing to assert an
institutional injury as against the executive, see id. at 821,2
the Court held that petitioners in the case lacked "legislative
standing" to challenge the Act. The Court observed that
petitioners already possessed an adequate political remedy,
since they could vote to have the Line Item Veto Act re-
pealed, or to provide individual spending bills with a statutory
exemption. See id. at 829.

Thereafter in Chenoweth v. Clinton, 181 F.3d 112, 115
(D.C. Cir. 1999), emphasizing the separation-of-powers prob-
lems inherent in legislative standing, we held that congress-
men had no standing to challenge the President's introduction
of a program through executive order rather than statute.
As in Raines, appellants contended that the President's action
inflicted an institutional injury upon Congress, in this case by
circumventing its legislative authority, but, we said,

__________
2 The Court noted that it had found standing for a congressman
in Powell v. McCormack, 395 U.S. 486 (1969), where he was
unconstitutionally excluded from Congress, thus depriving him of a
salary and the House seat he was constitutionally due, both person-
al injuries. The Court did not decide whether congressmen would
have standing to challenge actions of Congress which diminished
their institutional role. Cf. Michel v. Anderson, 14 F.3d 623 (D.C.
Cir. 1994) (congressmen had standing to challenge House rule
which diluted their vote in Committee of the Whole).

 It is uncontested that the Congress could terminate the
[contested program] were a sufficient number in each
House so inclined. Because the parties' dispute is there-
fore fully susceptible to political resolution, we would
[under circuit precedent] dismiss the complaint to avoid
"meddl[ing] in the internal affairs of the legislative
branch." Applying Raines, we would reach the same
conclusion.

Id. at 116 (citation omitted).

There remains, however, a soft spot in the legal barrier
against congressional legal challenges to executive action, and
it is a soft spot that appellants sought to penetrate. In 1939
the Supreme Court in Coleman v. Miller voted 5-4 to recog-
nize the standing of Kansas State legislators in the Supreme
Court to challenge the actions of the Kansas Secretary of
State and the Secretary of the State Senate. See 307 U.S.
433 (1939). That case arose out of a State Senate vote on the
ratification of a constitutional amendment, the Child Labor
Amendment, proposed by Congress in 1924. The State Sen-
ate split 20 to 20, and the Lieutenant Governor, the presiding
officer of the Senate, then cast a deciding vote in favor. The
State House subsequently also passed a ratification resolu-
tion. Thereupon the twenty State Senators who voted
against ratification plus one more (who presumably had voted
for the resolution) brought a mandamus action in the State
Supreme Court challenging the Lieutenant Governor's right
to vote.3 They sought an order compelling the Secretary of
the Senate to erase the endorsement on the resolution and
restraining the Secretary of State from authenticating the
resolution and passing it on to the Governor. The Supreme

__________
3 The government also challenges the congressmen's standing on
the basis that they do not constitute a majority of the Congress. In
Raines the Supreme Court did "attach some importance to the fact
that appellees have not been authorized to represent their respec-
tive Houses of Congress in this action," but it declined to say how
much importance. Raines, 521 U.S. at 829-30. Because we find
that appellants lack standing for another reason, we need not
discuss that issue.

Court of Kansas entertained the action but ruled against the
plaintiffs on the merits. Granting certiorari, the United
States Supreme Court determined that "at least the twenty
senators whose votes, if their contention were sustained,
would have been sufficient to defeat the resolution ... have
an interest ... sufficient to give the Court jurisdiction," id. at
446, because they have a legal interest "in maintaining the
effectiveness of their votes." Id. at 438.

In Raines the plaintiff congressmen had relied on Coleman
to argue that they had standing because the presidential veto
had undermined the "effectiveness of their votes." The Su-
preme Court noted that Coleman might be distinguished on
grounds that the federal constitutional separation of powers
concerns that underlay its decision in Raines (and which we
emphasized in Chenoweth) were not present, or that if the
Court in Coleman had not taken the case a question of
federal law--the ratification vel non by the Kansas Legisla-
ture--would remain as decided by the Kansas Court. But cf.
Coleman, 307 U.S. at 465-66 (opinion of Frankfurter, J.).
But the Court thought it unnecessary to cabin Coleman on
those grounds. See Raines, 521 U.S. at 824 n.8. Instead, the
Court emphasized that the congressmen were not asserting
that their votes had been "completely nullified":

They have not alleged that they voted for a specific bill,
that there were sufficient votes to pass the bill, and that
the bill was nonetheless deemed defeated....

Nor can they allege that the Act will nullify their votes in
the future in the same way that the votes of the Coleman
legislators had been nullified ...

In addition, a majority of Senators and Congressmen can
vote to repeal the Act, or to exempt a given appropria-
tions bill....

Id. at 824.

Here the plaintiff congressmen, by specifically defeating
the War Powers Resolution authorization by a tie vote and by
defeating a declaration of war, sought to fit within the Cole-
man exception to the Raines rule. This parliamentary tactic

led to an extensive argument before us as to exactly what the
Supreme Court meant by a claim that a legislator's vote was
completely "nullified."

It is, to be sure, not readily apparent what the Supreme
Court meant by that word. It would seem the Court used
nullify to mean treating a vote that did not pass as if it had,
or vice versa. The "nullification" alleged in this case there-
fore differs from Coleman in a significant respect. In that
case state officials endorsed a defeated ratification, treating it
as approved, while the President here did not claim to be
acting pursuant to the defeated declaration of war or a
statutory authorization, but instead "pursuant to [his] consti-
tutional authority to conduct U.S. foreign relations and as
Commander-in-Chief and Chief Executive." See Letter to
Congressional Leaders Reporting on Airstrikes Against Ser-
bian Targets in the Federal Republic of Yugoslavia (Serbia
and Montenegro), 35 Weekly Comp. Pres. Doc. 528 (March
26, 1999). The Court did not suggest in Raines that the
President "nullifies" a congressional vote and thus legislators
have standing whenever the government does something Con-
gress voted against, still less that congressmen would have
standing anytime a President allegedly acts in excess of
statutory authority. As the government correctly observes,
appellants' statutory argument, although cast in terms of the
nullification of a recent vote, essentially is that the President
violated the quarter-century old War Powers Resolution.
Similarly, their constitutional argument is that the President
has acted illegally--in excess of his authority--because he
waged war in the constitutional sense without a congressional
delegation. Neither claim is analogous to a Coleman nullifi-
cation.

We think the key to understanding the Court's treatment
of Coleman and its use of the word nullification is its implicit
recognition that a ratification vote on a constitutional amend-
ment is an unusual situation. It is not at all clear whether
once the amendment was "deemed ratified," see Raines, 521
U.S. at 822, the Kansas Senate could have done anything to

reverse that position.4 We think that must be what the
Supreme Court implied when it said the Raines plaintiffs
could not allege that the "[Line Item Veto Act] would nullify
their votes in the future," and that, after all, a majority of
senators and congressmen could always repeal the Line Item
Veto Act. Id. at 824 (emphasis added). The Coleman sena-
tors, by contrast, may well have been powerless to rescind a
ratification of a constitutional amendment that they claimed
had been defeated. In other words, they had no legislative
remedy. Under that reading--which we think explains the
very narrow possible Coleman exception to Raines--appel-
lants fail because they continued, after the votes, to enjoy
ample legislative power to have stopped prosecution of the
"war."

In this case, Congress certainly could have passed a law
forbidding the use of U.S. forces in the Yugoslav campaign;
indeed, there was a measure--albeit only a concurrent resolu-
tion--introduced to require the President to withdraw U.S.
troops. Unfortunately, however, for those congressmen who,
like appellants, desired an end to U.S. involvement in Yugo-
slavia, this measure was defeated by a 139 to 290 vote. Of
course, Congress always retains appropriations authority and
could have cut off funds for the American role in the conflict.
Again there was an effort to do so but it failed; appropria-
tions were authorized. And there always remains the possi-
bility of impeachment should a President act in disregard of
Congress' authority on these matters.

* * * *

Appellants' constitutional claim stands on no firmer footing.
Appellants argue that the War Powers Clause of the Consti-
tution proscribes a President from using military force except
as is necessary to repel a sudden attack. But they also argue
that the WPR "implements" or channels congressional au-
thority under the Constitution. It may well be then that

__________
4 See Coleman, 307 U.S. at 450 ("[T]he question of the efficacy of
ratifications of state legislatures, in the light of ... attempted
withdrawal, should be regarded as a political question....").

since we have determined that appellants lack standing to
enforce the WPR there is nothing left of their constitutional
claim. Assuming, however, that appellants' constitutional
claim should be considered separately, the same logic dictates
they do not have standing to bring such a challenge. That is
to say Congress has a broad range of legislative authority it
can use to stop a President's war making, see generally John
C. Yoo, The Continuation of Politics by Other Means: The
Original Understanding of War Powers, 84 Cal. L. Rev. 167
(1996), and therefore under Raines congressmen may not
challenge the President's war-making powers in federal court.

Judge Randolph asserts that appellants lack standing be-
cause they do not claim that the President violated various
statutes that depend on the existence of a war or the immi-
nence of war. But that position sidesteps appellants' basic
claim that the President unconstitutionally conducted a war
without authority, and the logic of Judge Randolph's reason-
ing ("There is no suggestion that despite the vote, President
Clinton invaded Yugoslavia by land or took some other action
authorized only during a declared war.") is that if there had
been a "war" appellants would have had standing. See infra
at 6 (Randolph, J., concurring).5 He therefore presents as an
alternate reason for denying standing that the President did
not "nullify" the vote against the declaration of war because
he did not take any actions that constitute "war" in the
constitutional sense. See id. at 4-6. That analysis, however,
conflates standing with the merits. At the standing stage we
must take as correct appellants' claim that the President
violated the Constitution simply by ordering U.S. forces to
attack Yugoslavia.

In our view Judge Randolph's criticism of our analysis does
not give sufficient attention to Raines' focus on the political
self-help available to congressmen. See infra at 8-9 (Ran-
dolph, J., concurring). Even though the congressmen in

__________
5 It is certainly not logically necessary for appellants to assert a
violation of the statutes (three of which do not even depend on a
declaration of war) relied upon by the concurrence in order to make
their constitutional claim.

Raines sought review before the Court of what was soon
after determined in Clinton v. City of New York, 524 U.S. 417
(1998), to be an unconstitutional statute, the Court denied
them standing as congressmen because they possessed politi-
cal tools with which to remedy their purported injury. Our
colleague notes a distinction drawn by Raines between "the
right to vote in the future [and] the nullification of a vote in
the past," see infra at 8 (Randolph, J., concurring), and
asserts that the former does not remedy the latter. But
Raines rejected this argument, which is why the congressmen
in Raines lacked standing whereas petitioners in New York
were allowed to contest the President's "nullification" of
particular appropriations line items. Indeed, Raines explicit-
ly rejected Judge Randolph's argument that legislators
should not be required to turn to politics instead of the courts
for their remedy. Although the plaintiff legislators in Raines
had already failed to stop passage of the Line Item Veto Act,
the Court's response was the equivalent of "if at first you
don't succeed, try and try again"--either work for repeal of
the Act, or seek to have individual spending bills made
exempt. See Raines, 521 U.S. at 824-25, 825 n.9, 830. Judge
Randolph overlooks this key portion of Raines when he
disagrees with our conclusion that plaintiffs lack standing
because they may "fight again tomorrow." Infra at 8 (Ran-
dolph, J., concurring).6

__________
6 Judge Randolph also contends that our opinion is in conflict with
Chenoweth v. Clinton, 181 F.3d 112, 116-17 (D.C. Cir. 1999). But
as we have already described that opinion, see supra at 5, it too
focused on the political options available to congressmen when
denying them standing. Chenoweth did not hold, as Judge Ran-
dolph would have it, that Kennedy v. Sampson, 511 F.2d 430 (D.C.
Cir. 1974), survived Raines. Instead, we stressed the increased
emphasis placed by such post-Kennedy cases as Raines on separa-
tion of powers concerns. See Chenoweth, 181 F.3d at 113-15.
Although appellants' injury in Chenoweth was "precisely the harm
we held in ... Kennedy to be cognizable under Article III," it was
also "identical to the injury the Court in Raines deprecated as
'widely dispersed' and 'abstract,' " and therefore we affirmed the
district court's dismissal for lack of standing. Id. We only sug-
gested tentatively that "Kennedy may remain good law ... as a

 * * * *

Accordingly, the district court is affirmed; appellants lack
standing.

__________
peculiar application of the narrow rule announced in" Coleman.
See id. at 116 (emphasis added). Indeed, Judge Tatel understand-
ably read our opinion to "essentially overrule[ ] the theory of
legislative standing recognized in Kennedy...." See id. at 117
(Tatel, J., concurring). In any event, Chenoweth's discussion of
Kennedy's fate after Raines was dicta, and we need not decide for
purposes of this case if Kennedy, which involved the special ques-
tion of a pocket veto, survived Raines.

 Silberman, Circuit Judge, concurring: Appellants argued
that we should consider in our standing analysis that if
congressmen lack standing only military personnel might be
able to challenge a President's arguably unlawful use of force,
and it would be undesirable to put the armed forces in such a
position. Although that is not a consideration that bears on
standing, see Schlesinger v. Reservists Comm. to Stop the
War, 418 U.S. 208, 227 (1974), that argument leads me to
observe that, in my view, no one is able to bring this
challenge because the two claims are not justiciable. We lack
"judicially discoverable and manageable standards" for ad-
dressing them, and the War Powers Clause claim implicates
the political question doctrine. See Baker v. Carr, 369 U.S.
186, 217 (1962).

Prior litigation under the WPR has turned on the threshold
test whether U.S. forces are engaged in hostilities or are in
imminent danger of hostilities. But the question posed by
appellants--whether the President's refusal to discontinue
American activities in Yugoslavia violates the WPR--neces-
sarily depends on the statute having been triggered in the
first place. It has been held that the statutory threshold
standard is not precise enough and too obviously calls for a
political judgment to be one suitable for judicial determina-
tions. See, e.g., Sanchez-Espinoza v. Reagan, 770 F.2d 202,
209 (D.C. Cir. 1985) (aid to Contras); Crockett v. Reagan, 720
F.2d 1355, 1356-57 (D.C. Cir. 1983) (U.S. advisors in El
Salvador); see also Ange v. Bush, 752 F. Supp. 509, 514
(D.D.C. 1990) (pre-Gulf War buildup); Lowry v. Reagan, 676
F. Supp. 333, 340 n.53 (D.D.C. 1987) (reflagging operations in
the Persian Gulf). I think that is correct. Appellants point
to a House Report suggesting that hostilities for purposes of
the WPR include all situations "where there is a reasonable
expectation that American military personnel will be subject
to hostile fire." See H.R. Rep. No. 287, 93rd Cong., 1st Sess.
7 (1973). That elaboration hardly helps. It could reasonably
be thought that anytime American soldiers are confronted by
armed or potentially armed forces of a non-ally there is a
reasonable expectation that they will be subject to hostile fire.
Certainly any competent military leader will assume that to
be so.

 Appellants argue that here there is no real problem of
definition because this air war was so overwhelming and
indisputable. It is asserted that the President implicitly
conceded the applicability of the WPR by sending the report
to Congress. In truth, the President only said the report was
"consistent" with the WPR. In any event, I do not think it
matters how clear it is in any particular case that "hostilities"
were initiated if the statutory standard is one generally
unsuited to judicial resolution.

Nor is the constitutional claim justiciable. Appellants con-
tend this case is governed by Mitchell v. Laird, 488 F.2d 611,
614 (D.C. Cir. 1973), where we said that "[t]here would be no
insuperable difficulty in a court determining whether" the
Vietnam conflict constituted a war in the Constitutional sense.
See also Dellums v. Bush, 752 F. Supp. 1141, 1146 (D.D.C.
1990) ( "[T]he Court has no hesitation in concluding that an
offensive entry into Iraq by several hundred thousand United
States servicemen ... could be described as a 'war' within
the meaning ... of the Constitution."). But a careful read-
ing of both cases reveals that the language upon which
appellants rely is only dicta. (In Laird the Court ultimately
held that the resolution of the issues was a political question.
See 488 F.2d at 616.)1

Appellants cannot point to any constitutional test for what
is war. See, e.g., Holtzman v. Schlesinger, 414 U.S. 1316
(1973) (Justice Douglas, in chambers, vacating order of Court
of Appeals granting stay of district court's injunction against

__________
1 The additional cases upon which Judge Tatel relies with respect
to this point were also held to present political questions. See
Massachusetts v. Laird, 451 F.2d 26, 34 (1st Cir. 1971) ("All we hold
here is that in a situation of prolonged but undeclared hostilities,
where the executive continues to act not only in the absence of any
conflicting congressional claim of authority but with steady congres-
sional support, the Constitution has not been breached."); Orlando
v. Laird, 443 F.2d 1039, 1043 (2d Cir. 1971) (whether Vietnam
conflict required a declaration of war was a political question); Berk
v. Laird, 429 F.2d 302 (2d Cir. 1970) (denying a preliminary
injunction against dispatch of soldier to Vietnam because whether
Congress had authorized conflict was a political question).

bombing of Cambodia), 411 U.S. 1321 (1973) (Justice Mar-
shall, in chambers, granting stay the same day with the
concurrence of the other Justices); Holtzman v. Schlesinger,
484 F.2d 1307 (2d Cir. 1973) (holding legality of Cambodia
bombing nonjusticiable because courts lack expertise to de-
termine import of various military actions). Instead, appel-
lants offer a rough definition of war provided in 1994 by an
Assistant Attorney General to four Senators with respect to a
planned intervention in Haiti, as well as a number of law
review articles each containing its own definition of war. I do
not think any of these sources, however, offers a coherent test
for judges to apply to the question what constitutes war, a
point only accentuated by the variances, for instance, between
the numerous law review articles. For that reason, I dis-
agree with Judge Tatel's assertion that we can decide appel-
lants' constitutional claim because it is somehow obvious in
this case that our country fought a war. See infra at 6 (Tatel,
J., concurring). Baker v. Carr speaks of a case involving "a
lack of judicially discoverable and manageable standards for
resolving" the issue presented, see 369 U.S. at 217, not just a
case the facts of which are obscure; the focus is on the
standards. Even if this court knows all there is to know
about the Kosovo conflict, we still do not know what stan-
dards to apply to those facts.

Judge Tatel points to numerous cases in which a court has
determined that our nation was at war, but none of these
cases involved the question whether the President had "de-
clared war" in violation of the Constitution. For instance, in
Bas v. Tingy, 4 U.S. 37 (1800), the question whether there
was a "war" was only relevant to determining whether
France was an "enemy" within the meaning of a prize statute.
See id. at 37 ("[T]he argument turned, principally, upon two
inquiries: 1st. Whether the Act of March 1799, applied only
to the event of a future general war? 2d. Whether France
was an enemy of the United States, within the meaning of the
law?"). Indeed, Justice Washington's opinion in that case,
upon which Judge Tatel principally relies, suggests that
whether there was a war in the constitutional sense was
irrelevant. See id. at 42 ("Besides, it may be asked, why

should the rate of salvage be different in such a war as the
present, from the salvage in a war more solemn [i.e. a
declared war] or general?"). It is similarly irrelevant that
courts have determined the existence of a war in cases
involving insurance policies and other contracts, the Federal
Tort Claims Act, and provisions of the military criminal code
applicable in "time of war." See infra at 4-5 (Tatel, J.,
concurring). None of these cases asked whether there was a
war as the Constitution uses that word, but only whether a
particular statutory or contractual provision was triggered by
some instance of fighting. Comparing Bas v. Tingy's lengthy
discussion whether our quarrel with France constituted a
solemn or imperfect, general or limited war, see 4 U.S. at 40-
41, with today's propensity to label any widespread conflict an
undifferentiated war, it would not be surprising if an insur-
ance contract's "war" provisions, or even a statute's for that
matter, were triggered before the Constitution's.

Even assuming a court could determine what "war" is, it is
important to remember that the Constitution grants Con-
gress the power to declare war, which is not necessarily the
same as the power to determine whether U.S. forces will fight
in a war. This distinction was drawn in the Prize Cases, 67
U.S. 635 (1862). There, petitioners challenged the authority
of the President to impose a blockade on the secessionist
States, an act of war, where Congress had not declared war
against the Confederacy. The Court, while recognizing that
the President "has no power to initiate or declare a war,"
observed that "war may exist without a declaration on either
side." Id. at 668. In instances where war is declared against
the United States by the actions of another country, the
President "does not initiate the war, but is bound to accept
the challenge without waiting for any special legislative au-
thority." Id. Importantly, the Court made clear that it
would not dispute the President on measures necessary to
repel foreign aggression. The President alone

must determine what degree of force the crisis demands.
The proclamation of blockade is itself official and conclu-
sive evidence to the Court that a state of war existed

 which demanded and authorized a recourse to such a
measure, under the circumstances peculiar to the case.

Id. at 670.2 And, to confirm the independent authority of the
President to meet foreign aggression, the Court noted that
while Congress had authorized the war, it may not have been
required to: "If it were necessary to the technical existence
of a war, that it should have a legislative sanction, we find
it...." Id. (emphasis added).

I read the Prize Cases to stand for the proposition that the
President has independent authority to repel aggressive acts
by third parties even without specific congressional authoriza-
tion, and courts may not review the level of force selected.
See Geoffrey Corn, Presidential War Power: Do the Courts
Offer Any Answers?, 157 Mil. L. Rev. 180, 214 (1998); J.
Gregory Sidak, To Declare War, 41 Duke L.J. 27, 54 (1991);
Cyrus R. Vance, Striking the Balance: Congress and the
President Under the War Powers Resolution, 133 U. Pa. L.
Rev. 79, 85 (1984). Therefore, I assume, arguendo, that
appellants are correct and only Congress has authority to
initiate "war." If the President may direct U.S. forces in
response to third-party initiated war, then the question any
plaintiff who challenges the constitutionality of a war must
answer is, who started it? The question of who is responsible

__________
2 Judge Tatel's reliance on the Prize Cases as an example of the
Court concluding a war exists is misplaced because the Court itself
did not label the Civil War such, but instead deferred to the
President's determination that the country was at war. See 67 U.S.
at 670 ("Whether the President in fulfilling his duties, as
Commander-in-chief ... has met with such armed hostile resis-
tance ... as will compel him to accord to them the character of
belligerants, is a question to be decided by him, and this Court
must be governed by the decisions and acts of the political depart-
ment of the Government to which this power was entrusted")
(emphasis in original). Therefore, the Court's assertion that "it is
bound to notice and to know" the war, see id. at 667, provides no
support for the proposition that a court itself may decide when in
fact there is one. The Prize Cases thus refute the suggestion in
Talbot v. Seeman, 5 U.S. 1, 28 (1801), that only acts of Congress are

for a conflict is, as history reveals, rather difficult to answer,
and we lack judicial standards for resolving it. See, e.g.,
Greenham Women Against Cruise Missiles v. Reagan, 591 F.
Supp. 1332, 1337-38 (S.D.N.Y. 1984) (court lacked judicially
manageable standards to decide if placement of U.S. cruise
missiles in England was a war-like, "aggressive" act). Then
there is the problem of actually discovering the necessary
information to answer the question, when such information
may be unavailable to the U.S. or its allies, or unavailable to
courts due to its sensitivity. See id. at 1338. Perhaps
Yugoslavia did pose a threat to a much wider region of
Europe and to U.S. civilian and military interests and person-
nel there.

Judge Tatel does not take into account the Prize Cases
when he concludes that the President was not exercising his
independent authority to respond to foreign aggression be-
cause "in fact, the Kosovo issue had been festering for years."
See infra at 6 (Tatel, J., concurring). As quoted above the
President alone "must determine what degree of force the
crisis demands." See 67 U.S. at 670. Judge Tatel would
substitute our judgment for the President's as to the point at
which an intervention for reasons of national security is
justified, after which point--when the crisis is no longer
acute--the President must obtain a declaration of war. One
should bear in mind that Kosovo's tensions antedate the
creation of this republic.

In most cases this will also be an issue of the greatest
sensitivity for our foreign relations. Here, the President
claimed on national television that our country needed to
respond to Yugoslav aggression to protect our trading inter-
ests in Europe, and to prevent a replay of World War I. A
pronouncement by another branch of the U.S. government
that U.S. participation in Kosovo was "unjustified" would no
doubt cause strains within NATO. Cf. United States v. New,
50 M.J. 729, 739-40 (Army Ct. Crim. App. 1999) (lawfulness of
U.N. peacekeeping operation in Macedonia was a political
question).

__________
evidence of the existence of a war. See infra at 2 (Tatel, J.,
concurring).

 In sum, there are no standards to determine either the
statutory or constitutional questions raised in this case, and
the question of whether the President has intruded on the
war-declaring authority of Congress fits squarely within the
political question doctrine. We therefore have another basis
for our affirming the district court's dismissal of appellants'
case.

 Randolph, Circuit Judge, concurring in the judgment: The
majority opinion does not, I believe, correctly analyze plain-
tiffs' standing to sue. It misconceives the holding of Raines
v. Byrd, 521 U.S. 811 (1997), and conflicts with the law of this
circuit. I believe plaintiffs lack standing, at least to litigate
their constitutional claim, but for reasons the majority opinion
neglects. I also believe that the case is moot, an optional
disposition of the appeal.1 The serious questions about the
constitutionality of the War Powers Resolution2 must there-
fore be put off for still another day.

I. Standing
The Constitution reserves the power to declare "war"3 to
Congress and delegates the power to conduct war to the
__________
1 While we may be required to decide jurisdictional issues before
disposing of a case on the merits, we are not required to decide
jurisdictional questions in any particular order. See Arizonans for
Official English v. Arizona, 520 U.S. 43, 66-67 (1997); Galvan v.
Federal Prison Indus., Inc., No. 98-5472, slip op. at 3-4 (D.C. Cir.
Dec. 21, 1999) (citing Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, 94-95 (1998); Ruhrgas A.G. v. Marathon Oil Co., 119
S. Ct. 1563 (1999)). Specifically, we may assume standing when
dismissing a case as moot. See Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs., 2000 WL 16307, at *9 (U.S. Jan. 21, 2000)
(citing Arizonans, 520 U.S. at 66-67).

2 I include as an Addendum to this opinion President Nixon's 1973
message to the House of Representatives explaining why he vetoed
the War Powers Resolution on the grounds of its unconstitutionali-
ty.

3 War may be defined [as] the exercise of violence under
sovereign command against withstanders; force, authority and
resistance being the essential parts thereof. Violence, limited
by authority, is sufficiently distinguished from robbery, and
like outrages; yet consisting in relation towards others, it
necessarily requires a supposition of resistance, whereby the
force of war becomes different from the violence inflicted upon
slaves or yielding malefactors.

Samuel Johnson, A Dictionary of the English Language (facsimile
ed., Times Books, Ltd., London 1978) (1755). See United States v.
Bajakajian, 524 U.S. 321, 335 (1998) (citing Johnson); Nixon v.
United States, 506 U.S. 224, 229-30 (1993) (same); see also Bas v.

President. Compare U.S. Const. art. I, s 8, cl. 11, with id.
art. II, s 2. When President Clinton committed armed
forces to the attack on the Federal Republic of Yugoslavia, he
did so without a declaration of war from Congress. On April
28, 1999, after air operations and missile strikes were under-
way, the House of Representatives voted 427 to 2 against a
declaration of war. See H.R.J. Res. 44, 106th Cong. (1999);
126 Cong. Rec. H2440-41 (daily ed. Apr. 28, 1999).

The War Powers Resolution, passed over President Nixon's
veto in 1973, implements Congress's power to declare war
under the Constitution. See 50 U.S.C. s 1541(a)-(b). It
commands the President to "terminate any use of United
States Armed Forces" within sixty days "unless the Congress
(1) has declared war or has enacted a specific authorization
for such use of United States Armed Forces, (2) has extended
by law such sixty-day period, or (3) is physically unable to
meet as a result of an armed attack upon the United States."
50 U.S.C. s 1544(b). The Senate, on March 23, 1999, passed
a concurrent resolution providing that "the President of the
United States is authorized to conduct military air operations
and missile strikes in cooperation with our NATO allies
against the Federal Republic of Yugoslavia." S. Con. Res. 21,
106th Cong. (1999); 145 Cong. Rec. S3118 (daily ed. Mar. 23,
1999). The House rejected that measure by a tie vote on
April 28, 1999. See 126 Cong. Rec. H2451-52 (daily ed. Apr.
28, 1999).

The Members of Congress appearing as plaintiffs contend
that President Clinton violated the Constitution and the War
Powers Resolution and that they are entitled to a judicial
declaration so stating. They have standing, they say, because
President Clinton's prosecution of the war "completely nulli-
fied" their votes against declaring war and against authoriz-
ing a continuation of the hostilities. See Amended Complaint
p 18; Brief for Plaintiffs-Appellants at 8, 16.

__________

Tingy, 4 U.S. (4 Dall.) 37 (1800) (relying on Blackstone and other
commentators to distinguish between perfect and imperfect wars).

 A.

The quoted phrase--"completely nullified"--is from Raines
v. Byrd, 521 U.S. 811, 823 (1997), giving the Court's appraisal
of the rule in Coleman v. Miller, 307 U.S. 433 (1939). The
majority opinion in our case seems to assume that the only
thing left of legislative standing is whatever Raines pre-
serves. I will not quarrel with the assumption, at least for
cases in which a legislator is claiming that his vote has been
illegally nullified.4 The heart of the Raines decision is this:
"legislators whose votes would have been sufficient to defeat
(or enact) a specific legislative act have standing to sue if that
legislative action goes into effect (or does not go into effect),
on the ground that their votes have been completely nulli-
fied." 521 U.S. at 823.5

Here, plaintiffs had the votes "sufficient to defeat" "a
specific legislative action"--they defeated a declaration of war
(their constitutional claim) and they blocked a resolution
approving the President's continuation of the war (their statu-
tory claim). To follow precisely the formulation in Raines,
they would have standing only if the legislative actions they
defeated went "into effect." Obviously, this did not happen:
war was not declared, and the President never maintained
that he was prosecuting the war with the House's approval.

Plaintiffs' reply is that the President's military action
against Yugoslavia without congressional authorization had

__________
4 The Court has "recognized that state legislators have standing
to contest a decision holding a state statute unconstitutional if state
law authorizes legislators to represent the State's interests," Arizo-
nans, 520 U.S. at 65 (citing Karcher v. May, 484 U.S. 72, 82 (1987)).
Compare INS v. Chadha, 462 U.S. 919, 930 n.5, 939-40 (1983), in
which the "Court held Congress to be a proper party to defend [a]
measure's validity where both Houses, by resolution, had authorized
intervention in the lawsuit," and the executive branch refused to
defend the one-House veto provision. 520 U.S. at 65 n.20.

5 A vote is "completely nullified" when it is "deprived of all
validity," Raines, 521 U.S. at 822, "overridden and virtually held for
naught," id. at 822-23, or "stripped of its validity," id. at 824 n.7.

the effect of completely nullifying their votes, of making their
votes worthless. With respect to their vote against declaring
war, that clearly is not true. A congressional declaration of
war carries with it profound consequences.6 The United
States Code is thick with laws expanding executive power "in
time of war." See Office of the Judge Advocate General,
United States Air Force, Digest of War and Emergency
Legislation Affecting the Department of Defense 171-84
(1996) (listing statutes "effective in time of war"); cf. id. at
185-91 (listing statutes "effective in time of national emergen-
cy declared by the President"); id. at 192-98 (listing statutes
"effective in time of national emergency declared by Con-
gress").7 Under these laws, the President's authority over

__________
6 Although the United States has committed its armed forces into
combat more than a hundred times, Congress has declared war only
five times: the War of 1812, the Mexican-American War of 1848,
the Spanish-American War of 1898, World War I, and World War
II. See Congressional Research Service, Instances of Use of
United States Armed Forces Abroad, 1789-1989 (Ellen C. Collier
ed., 1989), reprinted in Thomas M. Franck & Michael J. Glennon,
Foreign Relations and National Security Law 650 (2d ed. 1993);
Office of the Legal Adviser, U.S. Department of State, The
Legality of United States Participation in the Defense of Viet-
nam (1966), reprinted in 1 The Vietnam War and International
Law 583, 597 (Richard A. Falk ed., 1968) (listing 125 incidents prior
to the Vietnam Conflict).

7 In the early days of the Republic, the power of the executive in
time of war was constrained by an absence of legislation. For
example, in Brown v. United States, 12 U.S. (8 Cranch) 110 (1814),
the Court rejected the argument that the President had the authori-
ty to confiscate enemy property found within the United States
without explicit statutory authority even during a declared war.
See id. at 129. The same reasoning was applied to the taking of
ships on the high seas in Little v. Barreme, 6 U.S. (2 Cranch) 170
(1804). Even in the wake of World War II, after Congress passed a
large number of war-related measures, the Court strictly construed
the President's authority. The most notable example, of course, is
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952)
("The President's power, if any, to issue the order must stem either

industries, the use of land, and the terms and conditions of
military employment is greatly enhanced.8 A declaration of
war may also have the effect of decreasing commercial
choices and curtailing civil liberties.9 See William H. Rehn-
quist, All the Laws but One: Civil Liberties in Wartime 218-
19 (1998) ("Without question the government's authority to
engage in conduct that infringes civil liberty is greatest in
time of declared war--the Schenck and Hirabayashi opinions
make this clear.... [B]ut from the point of view of govern-
mental authority under the Constitution, it is clear that the
President may do many things in carrying out a congressional
directive that he may not be able to do on his own.").

__________
from an act of Congress or from the Constitution itself."); cf. also
Dames & Moore v. Regan, 453 U.S. 654 (1981).

8 See, e.g., 10 U.S.C. s 2538 (authorizing the President to "take
immediate possession of any plant that is equipped to manufacture,
or that ... is capable of manufacturing" war material "in time of
war or when war is imminent"); 10 U.S.C. s 2644 ("In time of war,
the President, through the Secretary of Defense, may take posses-
sion and assume control of all or part of any system of transporta-
tion to transport troops, war material, and equipment, or for other
purposes related to the emergency."); 10 U.S.C. s 2663(b) ("In time
of war or when war is imminent, the United States may, immediate-
ly upon the filing of a petition for condemnation under subsection
(a), take and use the land to the extent of the interest sought to be
acquired."); 50 U.S.C. s 1829 ("Notwithstanding any other provi-
sion of law, the President, through the Attorney General, may
authorize physical searches without a court order ... to acquire
foreign intelligence information for a period not to exceed 15
calendar days following a declaration of war by the Congress.").

9 See, e.g., 18 U.S.C. s 2388(a) ("Whoever, when the United
States is at war, willfully causes or attempts to cause insubordina-
tion, disloyalty, mutiny, or refusal of duty, in the military or naval
forces of the United States, or willfully obstructs the recruiting or
enlistment service of the United States, to the injury of the service
or the United States, or attempts to do so--Shall be fined under
this title or imprisoned not more than twenty years, or both."); 18
U.S.C. s 3287 (tolling statute of limitations for any offense involving
fraud against the property of the United States until three years
after the termination of hostilities).

The vote of the House on April 28, 1999, deprived President
Clinton of these powers. The vote against declaring war
followed immediately upon the vote not to require immediate
withdrawal. Those who voted against a declaration of war
did so to deprive the President of the authority to expand
hostilities beyond the bombing campaign and, specifically, to
deprive him of the authority to introduce ground troops into
the conflict. See 145 Cong. Rec. H2427-41 (daily ed. Apr. 28,
1999). There is no suggestion that despite the vote, Presi-
dent Clinton invaded Yugoslavia by land or took some other
action authorized only during a declared war. It follows that
plaintiffs' votes against declaring war were not for naught.
For that reason, plaintiffs do not have standing to sue on
their constitutional claim.

As to their claim under the War Powers Resolution, the
beauty of this measure, or one of its defects (see the Adden-
dum to this opinion), is in its automatic operation: unless a
majority of both Houses declares war, or approves continua-
tion of hostilities beyond 60 days, or Congress is "physically
unable to meet as a result of an armed attack upon the
United States," the Resolution requires the President to
withdraw the troops. 50 U.S.C. s 1544(b). The President
has nothing to veto. Congress may allow the time to run
without taking any vote, or it may--as the House did here--
take a vote and fail to muster a majority in favor of continu-
ing the hostilities.

To put the matter in terms of Raines once again, plaintiffs
had the votes "sufficient to defeat" "a specific legislative
action"--they blocked a resolution authorizing the President's
continuation of the war with Yugoslavia--but it is not true, in
the language of Raines, that this "legislative action" never-
theless went "into effect." Congressional authorization sim-
ply did not occur. The President may have acted as if he had
Congress's approval, or he may have acted as if he did not
need it. Either way, plaintiffs' real complaint is not that the
President ignored their votes; it is that he ignored the War
Powers Resolution, and hence the votes of an earlier Con-
gress, which enacted the law over President Nixon's veto. It
is hard for me to see that this amounts to anything more than

saying: "We, the members of Congress, have standing be-
cause the President violated one of our laws." To hold that
Members of Congress may litigate on such a basis strikes me
as highly problematic, not only because the principle is uncon-
fined but also because it raises very serious separation-of-
powers concerns. See Raines, 521 U.S. at 825 n.8; Barnes v.
Kline, 759 F.2d 21, 41 (D.C. Cir. 1985) (Bork, J., dissenting),
vacated as moot, 479 U.S. 361 (1987). But because the case is
moot, I need say no more.

B.

The majority opinion analyzes standing rather differently
than I do. It says plaintiffs lack standing to pursue their
statutory claim because "they continued, after the votes, to
enjoy ample legislative power to have stopped prosecution of
the 'war.' " Maj. op. at 8. For specifics, the opinion points
out that Congress defeated House Concurrent Resolution 82,
a resolution requiring immediate disengagement from the
conflict in Yugoslavia; that "Congress always retains appro-
priations authority and could have cut off funds for the
American role in the conflict";10 and that "there always

__________
10 The majority attaches some importance to Congress's decision
to authorize funding for Operation Allied Force and argues that
Congress could have denied funding if it wished to end the war.
However, in Mitchell v. Laird, 488 F.2d 611, 616 (D.C. Cir. 1973),
we held that, as "every schoolboy knows," Congress may pass such
legislation, not because it is in favor of continuing the hostilities, but
because it does not want to endanger soldiers in the field. The War
Powers Resolution itself makes the same point: "Authority to
introduce United States Armed Forces into hostilities or into situa-
tions wherein involvement in hostilities is clearly indicated by the
circumstances shall not be inferred ... from any provision of law
(whether or not in effect before November 7, 1973), including any
provision contained in any appropriation Act, unless such provi-
sion specifically authorizes the introduction of United States Armed
Forces into hostilities or into such situations and states that it is
intended to constitute specific statutory authorization within the
meaning of this chapter." 50 U.S.C. s 1547(a)(1) (emphasis added).
Those portions of the Emergency Supplemental Appropriations Act,

remains the possibility of impeachment." Id.11 The same
reason--the possibility of future legislative action--is used to
defeat plaintiffs' standing with respect to their constitutional
claim. Id. at 9.

The majority has, I believe, confused the right to vote in
the future with the nullification of a vote in the past, a
distinction Raines clearly made. See 521 U.S. at 824. To say
that your vote was not nullified because you can vote for
other legislation in the future is like saying you did not lose
yesterday's battle because you can fight again tomorrow.
The Supreme Court did not engage in such illogic. When the
Court in Raines mentioned the possibility of future legisla-
tion, it was addressing the argument that "the [Line Item
Veto] Act will nullify the [Congressmen's] votes in the fu-
ture...." Id. This part of the Court's opinion, which the
majority adopts here, is quite beside the point to our case.
No one is claiming that their votes on future legislation will
be impaired or nullified or rendered ineffective.

Besides, as long as Congress and the Constitution exist,
Members will always be able to vote for legislation. And so
the majority's decision is tantamount to a decision abolishing
legislative standing. I have two problems with this. First, if
we are going to get rid of legislative standing altogether, we
ought to do so openly and not under the cover of an interpre-
tation, or rather misinterpretation, of a phrase in Raines. If
the Supreme Court had meant to do away with legislative

__________
Pub. L. No. 106-31, 113 Stat. 57, relating to the attacks on
Yugoslavia specified the limited purpose for the emergency appro-
priations, but contained no language even roughly approximating
that required by the War Powers Resolution. See id., ch. 3, 113
Stat. 76-83.

11 These are not the only possibilities. "It has been thought that
Congress could constitutionally cut the President's salary in half
and auction off the White House, reduce the President's staff to one
secretary, and limit her or him to answering personal correspon-
dence." A. Raymond Randolph, Introduction--Disciplining Con-
gress: The Boundaries of Legislative Power, 13 J.L. & Pol. 585,
586 (1997).

standing, it would have said so and it would have given
reasons for taking that step.

My second problem is just as serious, perhaps more so: the
majority's decision conflicts with this court's latest legislative
standing decision. In Chenoweth v. Clinton, 181 F.3d 112,
116-17 (D.C. Cir. 1999), we interpreted Raines consistently
with my analysis in this case and concluded that a previous
legislative standing decision of this court--Kennedy v. Samp-
son, 511 F.2d 430 (D.C. Cir. 1974)--upholding legislative
standing to challenge the legality of a pocket veto was still
good law. The plaintiff in Kennedy had standing under the
proper interpretation of Raines, we held, because the "pocket
veto challenged in that case had made ineffective a bill that
both houses of the Congress had approved. Because it was
the President's veto--not a lack of legislative support--that
prevented the bill from becoming law (either directly or by
the Congress voting to override the President's veto), those in
the majority could plausibly describe the President's action as
a complete nullification of their votes." 181 F.3d at 116-17.
If Chenoweth is correct, the majority opinion in this case
must be wrong. If Chenoweth is correct, it is no answer to
say--as the majority says in this case--that standing is
lacking because, despite the pocket veto, Congress could pass
the same law again, or it could retaliate by cutting off
appropriations for the White House or it could impeach the
President.

C.

My position, the majority complains, "sidesteps" plaintiffs'
merits "claim that the President unconstitutionally conducted
a war without authority," Maj. op. at 9. This is meant to be
criticism? A properly-conducted standing analysis almost
always avoids--sidesteps--a decision on the merits.12 In the

__________
12 The majority drops this footnote: "It is certainly not logically
necessary for appellants to assert a violation of the statutes ...
relied upon by the concurrence in order to make their constitutional
claim." Maj. op. at 9 n.5. How strange a statement. I refer to the
statutes not in the context of plaintiffs' making their constitutional

next breath, the majority turns around and contradicts itself,
proclaiming that my analysis "conflates standing with the
merits." Id. I am familiar with what I have written. I do
not recall having rendered a judgment about whether the
President violated the Constitution. The careful reader will,
I think, agree with me. Nor do I present "as an alternative
reason for denying standing that the President did not ...
take any actions constituting war in the constitutional sense."
Id. The majority's sentence is doubly misleading. Here is
my alternative reason for denying standing, pure and simple:
regardless whether President Clinton waged a "war," plain-
tiffs never claimed that he exercised statutory authority
reserved to him only when Congress has declared a war; and
so their votes against declaring war cannot be considered a
nullity. Thus, one, I have taken no position on whether the
President engaged in a "war," and two, I say only that
plaintiffs never alleged that the President utilized these statu-
tory powers. Too often a strategy in legal argumentation is
to pretend to answer an argument by misstating it.13 My
argument remains unanswered. All the majority has done is
to misstate it almost as badly as it has misread Raines.

II. Mootness

The amended complaint, filed on May 19, 1999, sought a
declaratory judgment "that no later than May 25, 1999, the
President must terminate the involvement of the United
States Armed Forces in such hostilities unless Congress
declares war, or enacts other explicit authorization, or has
extended the sixty day period." Amended Complaint at 12;

__________
claim, but in regard to their standing to litigate that claim. It is as
if the majority had made this brow-furrowing statement: "in order
to make out their constitutional claim, it is not logically necessary
for plaintiffs to assert that their votes were nullified within the
meaning of Raines."

13 See also the sentence attributing to me the "argument that
legislators should not be required to turn to politics instead of the
courts for their remedy." Maj. op. at 10. There are other exam-
ples not worth mentioning.

see 50 U.S.C. s 1544(b)(1)-(2). All agree that the "hostilities"
ended by June 21, 1999, after NATO's Secretary General
announced the official termination of the air campaign and
Secretary of Defense Cohen announced the redeployment of
more than 300 U.S. aircraft back to their home bases.

To save their case from mootness, plaintiffs therefore in-
voke the rule regarding issues "capable of repetition, yet
evading review." Southern Pacific Terminal Co. v. ICC, 219
U.S. 498, 515 (1911); Christian Knights of the Ku Klux Klan
v. District of Columbia, 972 F.2d 365, 369-71 (D.C. Cir. 1992).
Plaintiffs must, but cannot, satisfy both elements to prevail.
Their constitutional and statutory claims are at cross pur-
poses.

The "evading review" part of the formulation is temporal.
How quickly must an activity begin and end to evade judicial
review? This depends on which court does the reviewing.
The Supreme Court has treated the matter in terms of itself.
Hence evading review means evading Supreme Court review,
see Christian Knights, 972 F.2d at 369, which can be (though
usually is not) swift review. See, e.g., New York Times Co. v.
United States, 403 U.S. 713 (1971); Buckley v. Valeo, 424
U.S. 1 (1976). Some undeclared wars, or in the euphemism of
the day, "hostilities," are over quickly; others, like the Kore-
an War and the war in Vietnam, last for years. Circuit
precedent requires us to determine whether the activity
challenged is "inherently" of a sort that evades review; cir-
cuit precedent also holds that "offensive wars initiated with-
out congressional approval" are not in that category. Co-
nyers v. Reagan, 765 F.2d 1124, 1128 (D.C. Cir. 1985). That
holding, which remains the law of the circuit, means that we
must treat plaintiffs' claims as moot.

Plaintiffs' statutory claim--that President Clinton contin-
ued the war for more than 60 days without congressional
authorization, in violation of the War Powers Resolution--also
may not satisfy the "capable of repetition" element. There is
an aspect of probability involved here. "By 'capable of
repetition' the Supreme Court means 'a reasonable expecta-
tion that the same complaining party would be subject to the

same action again.' " Christian Knights, 972 F.2d at 370
(quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per
curiam)).14 This introduces some complications. Who should
be considered the "same complaining parties"? And what is
the "same action again"?

The same "complaining parties" must refer to the individu-
al Members of Congress who brought this suit. They have
sued in their official capacity and, as in Karcher v. May, 484
U.S. 72, 79-81 (1987), the injury they allege relates to their
conduct as legislators. Thus, in assessing the likelihood of a
recurrence of "the same action," the inquiry must be restrict-
ed only to the period in which these Congressmen would
likely remain in office. As to the "same action," this refers to
President Clinton's alleged violation of the War Powers Reso-
lution by continuing hostilities for more than 60 days without
Congress's affirmative approval. How likely is that to recur?
Not very, if history is any guide. The War Powers Resolu-
tion has been in effect for a quarter of a century. Yet
President Clinton is the first President who arguably violated
the 60-day provision. In order to show why their claims will
"evade review," plaintiffs tell us that, in modern times, United
States attacks on foreign nations will be over quickly, by
which they mean less than 60 days.15 Accepting that predic-

__________
14 The Supreme Court recently stated that "a defendant claiming
that its voluntary compliance moots a case bears the formidable
burden of showing that it is absolutely clear the allegedly wrongful
behavior could not reasonably be expected to recur." Friends of
the Earth, 2000 WL 16307, at *14 (citing United States v. Concen-
trated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)). The
President's cessation of the attack on Yugoslavia was not "volun-
tary" within the Court's meaning; the war ended because the
United States won, not because the President sought to avoid
litigation.

15 "The 1998 air attack against Afghanistan and Sudan, the De-
cember 1998 air attacks against Iraq, the 1995 air assault against
the Bosnian Serbs, the 1994 Haitian invasion, the 1991 Persian Gulf
War, the 1989 Panama invasion, the 1986 air attack against Lybia,
the 1983 Grenada attack were all completed in less than 60 days."
Reply Brief for Plaintiffs-Appellants at 5-6.

tion as accurate dooms their case. It means that the likeli-
hood of this President, or some other, violating the 60-day
provision of the War Powers Resolution is remote, not only
because we can expect other Presidents to obtain congres-
sional approval for wars lasting more than 60 days, but also
because most military actions in the future (as plaintiffs
agree) will be over before the 60-day limit for undeclared or
unauthorized wars has been exceeded.

 ADDENDUM

Veto of War Powers Resolution
The President's Message to the House of
Representatives Returning H.J. Res. 542 Without
His Approval. October 24, 1973

To the House of Representatives:

I hereby return without my approval House Joint Resolu-
tion 542--the War Powers Resolution. While I am in accord
with the desire of the Congress to assert its proper role in the
conduct of our foreign affairs, the restrictions which this
resolution would impose upon the authority of the President
are both unconstitutional and dangerous to the best interests
of our Nation.

The proper roles of the Congress and the Executive in the
conduct of foreign affairs have been debated since the found-
ing of our country. Only recently, however, has there been a
serious challenge to the wisdom of the Founding Fathers in
choosing not to draw a precise and detailed line of demarca-
tion between the foreign policy powers of the two branches.

The Founding Fathers understood the impossibility of fore-
seeing every contingency that might arise in this complex
area. They acknowledged the need for flexibility in respond-
ing to changing circumstances. They recognized that foreign
policy decisions must be made through close cooperation
between the two branches and not through rigidly codified
procedures.

These principles remain as valid today as they were when
our Constitution was written. Yet House Joint Resolution
542 would violate those principles by defining the President's
powers in ways which would strictly limit his constitutional
authority.

Clearly Unconstitutional

House Joint Resolution 542 would attempt to take away, by
a mere legislative act, authorities which the President has
properly exercised under the Constitution for almost 200
years. One of its provisions would automatically cut off
certain authorities after sixty days unless the Congress ex-

tended them. Another would allow the Congress to eliminate
certain authorities merely by the passage of a concurrent
resolution--an action which does not normally have the force
of law, since it denies the President his constitutional role in
approving legislation.

I believe that both these provisions are unconstitutional. The
only way in which the constitutional powers of a branch of the
Government can be altered is by amending the Constitution--
and any attempt to make such alterations by legislation alone
is clearly without force.

Undermining Our Foreign Policy

While I firmly believe that a veto of House Joint Resolution
542 is warranted solely on constitutional grounds, I am also
deeply disturbed by the practical consequences of this resolu-
tion. For it would seriously undermine this Nation's ability
to act decisively and convincingly in times of international
crisis. As a result, the confidence of our allies in our ability to
assist them could be diminished and the respect of our
adversaries for our deterrent posture could decline. A per-
manent and substantial element of unpredictability would be
injected into the world's assessment of American behavior,
further increasing the likelihood of miscalculation and war.

If this resolution had been in operation, America's effective
response to a variety of challenges in recent years would have
been vastly complicated or even made impossible. We may
well have been unable to respond in the way we did during
the Berlin crisis of 1961, the Cuban missile crisis of 1962, the
Congo rescue operation in 1964, and the Jordanian crisis of
1970--to mention just a few examples. In addition, our
recent actions to bring about a peaceful settlement of the
hostilities in the Middle East would have been seriously
impaired if this resolution had been in force.

While all the specific consequences of House Joint Resolu-
tion 542 cannot yet be predicted, it is clear that it would
undercut the ability of the United States to act as an effective
influence for peace. For example, the provision automatically

cutting off certain authorities after 60 days unless they are
extended by the Congress could work to prolong or intensify
a crisis. Until the Congress suspended the deadline, there
would be at least a chance of United States withdrawal and
an adversary would be tempted therefore to postpone serious
negotiations until the 60 days were up. Only after the
Congress acted would there be a strong incentive for an
adversary to negotiate. In addition, the very existence of a
deadline could lead to an escalation of hostilities in order to
achieve certain objectives before the 60 days expired.

The measure would jeopardize our role as a force for peace
in other ways as well. It would, for example, strike from the
President's hand a wide range of important peace-keeping
tools by eliminating his ability to exercise quiet diplomacy
backed by subtle shifts in our military deployments. It would
also cast into doubt authorities which Presidents have used to
undertake certain humanitarian relief missions in conflict
areas, to protect fishing boats from seizure, to deal with ship
or aircraft hijackings, and to respond to threats of attack.
Not the least of the adverse consequences of this resolution
would be the prohibition contained in section 8 against fulfill-
ing our obligations under the NATO treaty as ratified by the
Senate. Finally, since the bill is somewhat vague as to when
the 60 day rule would apply, it could lead to extreme confu-
sion and dangerous disagreements concerning the preroga-
tives of the two branches, seriously damaging our ability to
respond to international crises.

Failure to Require Positive Congressional Action

I am particularly disturbed by the fact that certain of the
President's constitutional powers as Commander in Chief of
the Armed Forces would terminate automatically under this
resolution 60 days after they were invoked. No overt Con-
gressional action would be required to cut off these powers--
they would disappear automatically unless the Congress ex-
tended them. In effect, the Congress is here attempting to
increase its policy-making role through a provision which
requires it to take absolutely no action at all.

 In my view, the proper way for the Congress to make
known its will on such foreign policy questions is through a
positive action, with full debate on the merits of the issue and
with each member taking the responsibility of casting a yes
or no vote after considering those merits. The authorization
and appropriations process represents one of the ways in
which such influence can be exercised. I do not, however,
believe that the Congress can responsibly contribute its con-
sidered, collective judgment on such grave questions without
full debate and without a yes or no vote. Yet this is precisely
what the joint resolution would allow. It would give every
future Congress the ability to handcuff every future Presi-
dent merely by doing nothing and sitting still. In my view,
one cannot become a responsible partner unless one is pre-
pared to take responsible action.

Strengthening Cooperation Between the Congress and the
Executive Branches

The responsible and effective exercise of the war powers
requires the fullest cooperation between the Congress and
the Executive and the prudent fulfillment by each branch of
its constitutional responsibilities. House joint Resolution 542
includes certain constructive measures which would foster
this process by enhancing the flow of information from the
executive branch to the Congress. Section 3, for example,
calls for consultations with the Congress before and during
the involvement of the United States forces in hostilities
abroad. This provision is consistent with the desire of this
Administration for regularized consultations with the Con-
gress in an even wider range of circumstances.

I believe that full and cooperative participation in foreign
policy matters by both the executive and the legislative
branches could be enhanced by a careful and dispassionate
study of their constitutional roles. Helpful proposals for such
a study have already been made in the Congress. I would
welcome the establishment of a non-partisan commission on
the constitutional roles of the Congress and the President in
the conduct of foreign affairs. This commission could make a
thorough review of the principal constitutional issues in

Executive-Congressional relations, including the war powers,
the international agreement powers, and the question of
Executive privilege, and then submit its recommendations to
the President and the Congress. The members of such a
commission could be drawn from both parties--and could
represent many perspectives including those of the Congress,
the executive branch, the legal profession, and the academic
community.

This Administration is dedicated to strengthening coopera-
tion between the Congress and the President in the conduct
of foreign affairs and to preserving the constitutional prerog-
atives of both branches of our Government. I know that the
Congress shares that goal. A commission on the constitution-
al roles of the Congress and the President would provide a
useful opportunity for both branches to work together toward
that common objective.

Richard Nixon

The White House,
October 24, 1973.

 Tatel, Circuit Judge, concurring: Although I agree with
Judge Silberman that Raines v. Byrd, 521 U.S. 811 (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 Resolu-
tion.

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 1-2 (Silberman, J., concurring). Whether the mili-
tary activity in Yugoslavia amounted to "war" within the
meaning of the Declare War Clause, U.S. Const. art. I, s 8,
cl. 11, is no more standardless than any other question
regarding the constitutionality of government action. Pre-
cisely 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 Four-
teenth 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. 37 (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, and 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 consti-
tution 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, 28 (1801).

Half a century later, in The Prize Cases, 67 U.S. 635, 666
(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 orga-
nization 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 indepen-
dence; 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. Respond-
ing 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 Indo-China." 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 congres-
sional 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 congres-
sional 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 was 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 nonethe-

less 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 lan-
guage is dicta, see supra at 2 (Silberman, J., concurring),
Mitchell supports my view that this court could resolve the
war powers claims presented here. See also, e.g., Massachu-
setts 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 discover-
able and manageable standard imposing on the Congress a
duty of mutual participation in the prosecution of war. Judi-
cial 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.... [E]xecutive
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 provi-
sions of military criminal law applicable "in time of war," see,
e.g., United States v. Anderson, 17 U.S.C.M.A. 588 (1968);
United States v. Ayers, 4 U.S.C.M.A. 220 (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 cir-
cumstances." 50 U.S.C. s 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 Clin-
ton 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. Pursu-
ant to the priority procedures of the War Powers Resolution,
50 U.S.C. ss 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 Execu-
tive 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 facts 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 ob-
taining prior congressional approval. Judge Silberman's sug-
gestion notwithstanding, see supra at 5-6 (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 govern-
ment'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 authori-
zation; 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 determina-
tion[ ] 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
(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 impor-
tant functions of Article III courts: determining the proper
constitutional allocation of power among the branches of
government. Although our answer could well have political
implications, "the presence of constitutional issues with signif-
icant political overtones does not automatically invoke the
political question doctrine. Resolution of litigation challeng-
ing 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
(1983). See also Baker v. Carr, 369 U.S. 186, 217 (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
("[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, then
surely we cannot shirk our responsibility to decide whether

the President exceeded his constitutional or statutory authori-
ty by conducting the air campaign in Yugoslavia.

The Government's final argument--that entertaining a war
powers challenge risks the government speaking with "multi-
farious 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 possi-
bility of 'multifarious pronouncements' on this question."
Chadha, 462 U.S. at 942. 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 pro-
tecting the bedrock constitutional principle that "[i]t is em-
phatically the province and duty of the judicial department to
say what the law is." Marbury v. Madison, 5 U.S. 137, 177
(1803).