War Powers Resolution: The 1973 resolution ⁵⁰ lists conditions under which the President may deploy military forces, and restricts their use to 60 days without congressional authorization (with the possibility of a 30-day extension).⁵¹ Ostensibly passed by Congress to constrain the President's unilateral initiation of hostilities,⁵² it has been criticized as an unconstitutional delegation of the legislative war powers. Senator Thomas Eagleton denounced it as a "complete distortion of the war powers concept."⁵³ And Representative William Green claimed that the bill, if carefully read, "is actually an expansion of the Presidential warmaking power, rather than a limitation." ⁵⁴ Their concerns are understandable. If the President can engage in war-making for 90 days in the absence of an Article I, Section 8 declaration, why then not for 180 or 360 or 720 days should Congress so resolve? Therefore, the resolution may be challenged, as Professor Laurence Tribe astutely observes, "as insufficiently restoring Congress' constitutionally contemplated role in war-making." ⁵⁵

Modern Judicial Abdication: In the 1980s and 1990s, members of Congress sued Ronald W. Reagan (regarding military operations in El Salvador, Grenada, Nicaragua, and the Persian Gulf) and William J. Clinton (regarding the air war against Yugoslavia) for violations of the War Powers Resolution and the Constitution's War Powers Clause.⁵⁶ Similarly, as George W. Bush threatened to attack Baghdad pursuant to Congress's October 2002 Iraq Resolution,⁵⁷ six federal lawmakers (together with soldiers and parents) challenged the measure as an unconstitutional delegation of Congress's exclusive powers to declare war.⁵⁸ Dismissing all of these contested claims, the federal courts reveled in "the passive virtues"⁵⁹ of standing, ripeness, and political question, among others. Caught "in the crossfire" between the Congress and the Executive, as Neal Devins and Louis Fisher put it, "federal judges essentially told the legislators complaining of executive aggrandizement, Don't come in here and expect us to do your work for you."⁶⁰ And, despite the Court's qualified skepticism⁶¹ as to Executive overreaching in the enemy combatant cases,⁶² no one really expects the Justices to intervene any time soon - not even Justice Clarence Thomas, the originalist - in order to preserve the integrity of the Constitution's textual division of war powers. In this respect, Clinton Rossiter's observations resonate strongly: Most of the President's "significant deeds and decisions as commander in chief" have been "challengeable in no court but that of impeachment." ⁶³