Doe v. Bush:

This case is so seemingly insignificant that an appeals court hearing on Tuesday doesn't merit much news commentary. The Boston Globe picks it up under its "New England in brief" section. The title of the Globe's web page for this section is: "Student was paid to send e-mail spam in Medford." Spammers in Medford above separation of powers. Hmm.

Nonetheless, the case shows three things:

• The President is advancing an almost unbelievably expansive conception of executive powers during wartime -- and one that is not consistent with George Bush's avowed attachment to "strict construction." See the excellent article by Margaret Burnham (one of the lawyers for Doe) on this point. This conception of executive powers is one of the fixed points in the Bush presidency, as its handling of innumerable issues shows, from the conflict with GAO over access to memos on energy policy, to the attempt to force the Estrada nomination and destroy the anti-majoritarian rules and traditions in the Senate in the process. Read Bush's statement on the Senate's rejection of the cloture motion here.


• Courts have given at least one important hook to those who challenge the President's power to go to war without congressional declaration. In Dellums v. Bush, a case in which over fifty members of Congress challenged the first President Bush's power to go to war against Saddam Hussein without congressional approval (!), the District Court of D.C. said that it would not "read out of the Constitution the clause granting to Congress, and to it alone, the authority to 'declare war.'"


• BUT, this hook is irrelevant. The courts are reluctant to take these kinds of cases unless there is an explicit conflict between "Congress" (meaning the Congress as a whole, or a majority in Congress) and the executive. Unless a majority in Congress clearly tells Bush not to engage in war-making, and Bush says no and goes to war anyway, the courts are not likely to get involved in this issue -- and even then, it's not clear what they would do. In addition, courts will not take cases unless they are "ripe," probably meaning that a war has to have already started. But they also will not take cases that are "moot," probably meaning that a war can't have already ended. So there are some very high hurdles here for anti-war members of Congress: they have to get the Congress as a whole to act, and they have to get to court after the shooting (or bombing) starts but before it ends. If they've got a majority in Congress, of course, they probably won't need the courts anyway. So courts are not going to be much help in challenging executive war powers.

I don't think that this is necessarily a bad situation for courts to be in. Courts become shy during wartime. They probably should be shy: war raises people's partisan passions to a fever pitch, and when partisan passions go to court, the only real loser is likely to be the courts themselves, at least in the short term. In the long term, courts are pretty resilient: how many people are still really upset at the Supreme Court for Dred Scott -- or even Bush v. Gore, for that matter? But courts during wartime are not only afraid of partisanship. They're also afraid of the executive and Congress, both of which may be tempted to use their "checks and balances" to punish the court for rulings adverse to their perceived interests.