Judicializing Federative Power


The federal Constitution is ambiguous about federative power, Locke’s description of the power over war and foreign relations. On the one hand, the Constitution is plainly un-Lockean, dividing federative power between Congress and the President and contemplating that they will exercise responsibility, and sometimes competing prerogatives, in war and foreign affairs. Yet there is a rich constitutional and political history in America suggesting that the constitutional scheme is more Lockean than at first blush, even if informal and hidden in complexity. This paper responds to two distinct, but related, lines of argument that seek to limit especially the executive’s Lockean tendencies regarding federative power: first, that courts should be more involved in reviewing executive exercises of federative power; and second, that the current administration has asserted an unprecedented view of executive authority that compels judicial review as a crucial constitutional check. This paper offers a brief history of judicial review relevant to federative power, recognizing three distinct eras of decisions that have culminated in a prudently circumscribed approach to challenges regarding the constitutional allocation of federative power that enforces the doctrines of non-justiciability to avoid judicial intervention and permit play in the joints of the Constitution’s formal federative power machinery. Still, the war on terror cases foreshadow the possible coming of a new era in which political decisions regarding war and foreign affairs will be subject to much more rigorous judicial scrutiny. This judicialization of federative power, the paper contends, is an unwarranted and dangerous step. Judicializing federative power would be consistent with the current Supreme Court’s omnipotent posture toward judicial review generally, but would further marginalize efforts at practical governance by political institutions and undermine the formal constitutional arrangements that characterize their roles in war and foreign affairs. Judicialization would also damage both the un-Lockean balance, which contemplates the exercise of political tools by both Congress and the President when they are competing in matters of war and foreign affairs, and the Lockean executive, who, Article II contemplates, will act with energy to grapple with necessity and to affirmatively defend the Constitution and the Republic.


Constitutional Law | Public Law and Legal Theory

Date of this Version

February 2007