WASHINGTON (Oct. 18, 2019) – The president and Congress continue to butt heads over the president’s recent foreign policy decisions in Syria and around the world. When the two political branches are in a standoff, Congress holds many legislative tools. But does one of those tools include lawsuits in federal court? Likely not.
In a new policy short, R Street Resident Governance Fellow Anthony Marcum discusses how suits that challenge the president’s overreach in foreign relations have largely failed in federal court. This is because courts have been consistently unwilling to second guess the executive branch’s military decision-making and have instilled common law barriers that firmly limit judicial engagement in this field.
Marcum points out that two of the more common legal barriers to Congress’ success in federal court include the doctrines of standing and political question. Individual members of Congress, hoping to block military action, often lack standing to sue. And Congress—even citing institutional concerns—often fares no better under the political question doctrine.
Marcum begs the question, “what is Congress to do?” He finds that the Courts have offered some advice: use its institutional power. When it comes to addressing the current conflicts in Afghanistan, Syria and beyond, Congress will see more results on the floor than in the courtroom.
He concludes, “as the Supreme Court has reminded the legislature: ‘Congress has a broad range of legislative authority it can use to stop a President’s war making.’ Oversight, appropriations and legislation, for instance, always remain tools in the legislature’s toolkit.”