The Hegemony Struggle between President and Congress over War Power Authority and the Role of the Judiciary in the United States - With a Discussion on President Trump’s Travel Ban and the Judicial Decisions -

Under the U.S. Constitution, the war power is not given exclusively either topresidents or Congress as both branches share the war power authorities. Throughout the political history of the United States, the presidents and Congresshave struggled over war power authorities. It is noteworthy, however, thatpresidents have usually wielded more dominance and that Congress, due to itslimitation as a collective decision-making body, has been passive and acquiescentto presidential exercise of war power. However, presidents and Congress are not the only governmental branches thatare involved in making the war policies. The judiciary has its authority toadjudicate legal disputes concerning the war power authorities and related issues. The judiciary can check and curb the excessive exercise of presidential war powersbecause of its judicial review power and because it is not restricted by thelimitations that Congress has. The judiciary can play a significant role in changingthe directions of the war efforts and policies. For example, the Supreme Courtruled against the Bush administration by rejecting President Bush’s executive orderssetting up the detention facility at Guantanamo Bay and establishing procedures todetermine the status of detainees as to whether they were unlawful combatants. Also, the judiciary has exercised its judicial review power effectively inYoungstown case in which the Supreme Court supported the position of Congress over domestic matters in terms of war power by holding that the regulation ofsteel mills was the prerogatives of Congress and that Congress had the power tofund and support the war by using the means available domestically. But the moreimportant lesson from the Youngstown case is that the judiciary is the finaldecision-making body on the Constitutional interpretation as to which branch hasmore authorities in specific war making policies. When President Trump issued executive orders banning the entry of foreignnationals from seven Muslim countries (“Travel Ban”), the orders were struckdown by the federal District courts and Court of Appeals. However, the SupremeCourt reversed the lower federal court decisions by upholding the travel banalthough the Trump administration’s argument that the travel ban was necessary fornational security was not supported by merit or substance. However, it is essential that the judiciary—especially the Supreme Court—remains as a counterbalance to presidential overreaching with respect to theexercises of war powers by exercising its judicial review power adequately. Especially when the president and Congress are in dispute concerning war powerauthorities, the judiciary should play an important role of the neutral andindependent decision-maker on the constitutional interpretation by rising above theparty-line politics and politicized decisions.