On February 24, 2022, the current conflict in Ukraine began when Russian military forces

invaded the Ukraine. Following the invasion, the North Atlantic Treaty Organization (NATO)
and its allies pledged support for Ukraine. Since the start of the conflict, NATO and the
European Union have contributed billions of dollars in security assistance to Ukraine.
Additionally, the United States has been the leading provider of assistance to Ukraine, with the
Biden administration contributing more than $72.9 billion in military assistance since February
2022 (on top of approximately $3.9 billion in humanitarian aid).
Yet the Ukraine forces suffered a series of critical defeats in the fall of 2023. Following these
attacks, NATO, the EU, and the US committed to sending Ukraine additional drones,
ammunition, planes, and tanks. President Biden pledged additional support for Ukraine despite
strong opposition from some Republican members of Congress. Republicans in the House and
Senate object to the US involvement in Ukraine for a variety of reasons, including the U.S.’s
disproportionate funding of the conflict relative to other nations (for example all EU notations
donated approximately $85 billion during the same time period).
On October 1, 2023, Congress failed to pass a budget, leading to a government shutdown, in part
due to Congress’s inability to agree on funding for Ukraine. Following a costly two-week
shutdown, Congress passed a six-month funding plan to temporarily fund the government.
President Biden continued to use defense money to support Ukraine during and after the
shutdown.
On October 20, 2023, members of Congress, lead by Speaker of the House Kevin McCarthy,
filed suit against the President for violating the War Powers Resolution.
Specifically, the suit asserts that President Biden Violated:
Section 1544 (B): The president must cease military action, if unauthorized by Congress, within
60 days.
Section 1544(C): If there is no declaration of war, the president must remove military forces at
any time Congress orders.
President Biden makes three constitutional claims: First, the president argues that the case at
hand is a non-justiciable political question and that the members of Congress brining the suit
lack standing to sue. President Biden further maintains that the WPR is an unconstitutional
infringement on the executive power. He further asserts that the contribution of money and
munitions is not the type of military involvement covered in the act and therefore is not subject
to the WPR, even if the WPR were constitutional.
Conversely, the members of Congress bringing the suit state that the president is overstepping
his Article II powers and infringing on the Congress’s Article I power to declare war.
The district court ruled that the members of Congress lacked standing to sue. On appeal, the
D.C. Circuit overturned the district court and found that President Biden must comply with the
WPR and end financial support for Ukraine. The President then appeal to the Supreme Court of
the United States, cert granted.
Cases (from hypothetical)

Baker v. Carr 369 US 186 (1962)

● Context: Charles Baker sued the state of Tennessee for not redistricting after the 1900
consensus. As the population had shifted significantly within his specific county to have
nearly 10 times the amount of residents it had in the previous consensus, he felt that it
violated the equal protection clause of the 14th amendment. The State argued that the
districting of congressional districts with a political question, not a judicial one, and thus
should not be heard in the court.
● Is the redistricting of the state legislative district a political question?
○ No (6-2)
○ The Court held that the legal system had jurisdiction over the drawing of
Congressional districts. It outlined 6 factors to help determine if a case was
political in nature:
1. "Textually demonstrable constitutional commitment of the issue to a coordinate political
department;" as an example of this, Brennan cited issues of foreign affairs and executive war
powers, arguing that cases involving such matters would be "political questions"
2. "A lack of judicially discoverable and manageable standards for resolving it;"
3. "The impossibility of deciding without an initial policy determination of a kind clearly for
nonjudicial discretion;"
4. "The impossibility of a court's undertaking independent resolution without expressing lack of
the respect due coordinate branches of government;"
5. "An unusual need for unquestioning adherence to a political decision already made;"
6. "The potentiality of embarrassment from multifarious pronouncements by various
departments on one question."

**Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000)

● Context: Clinton sent NATO forces against Yugoslavia during its attempted invasion of
Kosovo in 1999. Under the War Powers Resolution, the President is supposed to submit
a report within 48 hours if Armed Forces are deployed and after 60 days, must withdraw
if Congress hadn’t declared war or enacted a specific authorization to use the forces.
Congress voted against the declaration of war and the authorization of air striles.
Though it voted against requiring the President to end U.S. participation and voted to
fund the involvement. The 31 members that voted to end participation sued that the
President had violated the resolution.
● Did the Executive Branch violate the War Powers resolution by keeping Armed
Forces in Yugoslavia passed the 60 day mark?
 ○ (No)
○ The Court dismissed standing, finding that the appellants had enough legislative
authority to stop the appelle’s making of war. With this in mind, the Congressional
members lacked authority to challenge the action in court.

**Goldwater v. Carter 44 US 996 (1979)

● From Oyez
● Context: President Jimmy Carter acted without congressional approval in ending a
defense treaty with Taiwan.
● Did Congress have a constitutional role to play in the termination of the treaty?
● Without oral argument, the divided justices found that the case was not justiciable.
Rehnquist led a group of four others who believed that the issue involved a political
question, namely, how the President and Congress would conduct the nation's foreign
affairs. Justice Powell did not find the case ripe for judicial review. He reasoned that
since Congress had not formally challenged Carter's authority, technically there was no
conflict for the Court to resolve. The dissenters were prepared to hear the case.

**Hollingsworth v. Perry 570 US__(2013)

● From Oyez
● Context: In 2000, the citizens of California passed Proposition 22, which affirmed a legal
understanding that marriage was a union between one man and one woman. In 2008,
the California Supreme Court held that the California Constitution required the term
"marriage" to include the union of same-sex couples and invalidated Proposition 22.
Later in 2008, California citizens passed Proposition 8, which amended the California
Constitution to provide that "only marriage between a man and a woman is valid or
recognized by California."
● The respondents, a gay couple and a lesbian couple, sued the state officials responsible
for the enforcement of California's marriage laws and claimed that Proposition 8 violated
their Fourteenth Amendment right to equal protection of the law. When the state officials
originally named in the suit informed the district court that they could not defend
Proposition 8, the petitioners, official proponents of the measure, intervened to defend it.
The district court held that Proposition 8 violated the Constitution, and the U.S. Court of
Appeals for the Ninth Circuit affirmed.
● No, the petitioners do not have standing. The Court did not reach the question on the
merits of the case. Chief Justice John G. Roberts, Jr. delivered the opinion of the 5-4
majority. The Supreme Court held that federal courts only have the authority to decide
cases in which there is an "actual controversy," which means that the complaining party
must have suffered a "concrete and particularized injury" that can be redressed through
court action. In this case, because the petitioners had only a generalized grievance in
the form of a desire to defend Proposition 8, they did not have standing under Article III.
The Court also held that the petitioners could not invoke the standing of the state to
appeal because a litigant must assert his/her own rights and cannot claim relief through
the intervention of a third party. Because the petitioners did not have standing to appeal
 to the U.S. Court of Appeals for the Ninth Circuit, that court did not have jurisdiction to
reach a decision on the case.

INS v. Chadha, 462 U.S. 919 (1983)

● Context: In one section of the Immigration and Nationality Act, Congress authorized
either House of Congress to invalidate and suspend deportation rulings of the United
States Attorney General. Chadha had stayed in the U.S. past his visa deadline. Though
Chadha conceded that he was deportable, an immigration judge suspended his
deportation. The House of Representatives voted without debate or recorded vote to
deport Chadha. This case was decided together with United States House of
Representatives v. Chadha and United States Senate v. Chadha.
● Did the Immigration and Nationality Act, which allowed a one-House veto of
executive actions, violate the separation of powers doctrine?
○ Yes (7-2).
○ The Court held that the particular section of the Act in question did violate the
Constitution. Recounting the debates of the Constitutional Convention over
issues of bicameralism and separation of powers, Chief Justice Burger
concluded that even though the Act would have enhanced governmental
efficiency, it violated the "explicit constitutional standards" regarding
lawmaking and congressional authority.

**Raines v. Byrd 521 US 811 (1997)

● From Oyez:
● Several individual members of the 104th Congress, who voted against the passage of
the Line Item Veto Act (Act) giving the President authority to veto individual tax and
spending measures after having signed them into law, sued to challenge the Act's
constitutionality. After granting them standing, the District Court ruled in the
congressmen's favor as it found the Act unconstitutional. Direct appeal was granted to
the Supreme Court.
● Did the congressmen have Article III standing to challenge the Line Item Veto Act
as a violation of the Presentment Clause in Article I?
● No. In a 7-to-2 decision, which avoided the question of the Act's constitutionality, the
Court held that the individual congressmen lacked proper Article III standing to maintain
their suit. The Court explained that the congressmen failed to show how the allegedly
unconstitutional Act resulted in their personal injury, since it applied to the entire
institution of Congress. Moreover, the congressmen based their claim on a loss of
political power rather than a demonstration of how the Act violated one of their
particularized legally protected interests. The Court concluded that, having failed to meet
both of these standing requirements, the congressmen did not present the Court with a
case-or-controversy over which it had jurisdiction.
The Prize Cases 67 U.S. 635 (1862)
● Context: The nation suddenly found itself in a state of civil war when 7 southern states
seceded from the Union and organized to attack Fort Sumter. In response, President
Abraham Lincoln moved quickly and unilaterally to enact a blockade of the rebellious
states through his authority as commander in chief. A number of neutral vessels who
were impacted by this blockade sued, arguing that the President could not use military
powers without a formal declaration of war by Congress.
● Is a Congressional declaration of war required for the President to issue military
orders in response to an armed insurrection?
○ No (5-4). The Court combined a practical approach with a framer’s intent
approach to conclude that a Cpmgressional declaration of war was not required
for the President to respond to an armed insurrection. While the President can
not unilaterally use the military to attack foreign countries, the duties of his
office require unilateral action to defend the country in response to foreign
invasions. Additionally, Congress has previously empowered the President to
organize militias and otherwise use military powers in response to
insurrections. In the contemporary context, the Confederate States were an
insurrectionist force threatening the authority and very existence of the United
States. These facts all lead to the conclusion that the President must be
able to quickly employ all facets of the military as Commander-in-Chief to
defend the unity of the country, and a declaration of war from Congress is not
required. The blockade was not unconstitutional.

**Train v. City of New York 420 US 35 (1975)

● Context: President Nixon was frequently exercising a controversial power called
impoundment, where the executive branch did not spend funds allocated by Congress
for specific legislative purposes. In the context of the case, he ordered the EPA (headed
by Train) to not disperse funds to various entities (including the City of New York).
● Can the President decline to fully make use of money that was appropriated by
Congress and designated for a specific purpose?
● No. The language in the Constitution indicates that the President is obligated to follow
the spending procedures outlined in Congressional bills that have been passed into law,
even if the President attempted to veto the bill but was overturned. Importantly, the
Court’s ruling in this case is mostly based on the language of the bill, and not so much
on constitutional texts, so it should be applied carefully

Youngstown Sheet and Tube v. Sawyer 343 US 579 (1952)

● Context: the President issued an executive order to seize steel mills in the United States
to prevent a labor strike from slowing steel production during the Korean War. This act
was not supported by Congress and was actually in opposition to a compromise already
passed by Congress.
● Executive Orders originate from Article II, Section 3, “Take Care” Clause. Affirmed
in In re Neagle
 ● Did the President’s seizure of the steel mills without Congressional approval
violate the Seperation of Powers?
○ Yes. Congress did not authorize the president to take private property.
○ The president’s military power as Commander-in-Chief of the Armed Forces
did not extend to labor disputes.
○ “The President’s power to see that the laws are faithfully executed refutes the
idea that he is able to be a lawmaker” – (reference to language of “Take Care”
clause)
● Jackson Concurring Opinion creates current test for Constitionality of Executive
Power:
○ The President has the Most Power when Congress authorizes the Action.
Presumed constitutional.
○ The President has an Intermediate level of power when the president acts
without neither denial nor consent of Congress, and is solely relying on
Article II powers.
○ The President has the least/no power when he acts against the expressed
position of Congess, he has the least authority. President should have Article II
authorization (otherwise, unconstitutional action by President)

Zivotofsky v. Kerry 576 US__(2015)

● Context: Zivotovsky was born in Jerusalem to U.S-citizen parents. Parents requested
State Department to list Israel as his birth-place based on the Foreign Relations Act, but
the State Department declined to do so because the Executive does not recognize
Jerusalem as belonging to Israel.
● Does the president possess exclusive power to grant formal recognition of foreign
countries?
○ Yes. This case falls under the 3rd prong of Youngstown, yet despite that,
Constitutional tradition holds that the President/Executive has exclusive
power to recognize nations.
○ Relies on historical tradition and Federalists 69 and 70.
○ The Reception Clause (Article II, Section 3:4 Presidents receive ambassadors
and public ministers.
○ Also, treaty-making power.
○ Practical concerns (functionalism) also suggest that the nation needs to speak
with one voice in context of recognition.
● Dissents mainly focus on the Youngstown ruling and how the President was acting
against the will of Congress’s legislation.

Outside Cases

1. Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007) – Taxpayers do not have standing to
challenge monies spent by the executive branch of the government.
Outline
Alex:
Does the Supreme Court have jurisdiction to hear this case?
● The Supreme Court does not have jurisdiction to hear this case for several reasons.
1. Foreign Policy is the domain of the President via Article II. The Court has
recognized the power of the Executive Branch in steering foreign relations in
Zivotovsky v. Kerry, where the Court struck down a Congressional legislation for
interfering with the President’s constitutionally-derived power to recognize
foreign nations.
2. As Commander-in-Chief, the President has historically had the authority to utilize
money designated for defense spending by Congressional appropriation bills,
unless certain uses were explicitly prohibited. (Hansen & Banks. “From Vietnam
To Desert Shield: The Commander In Chief's Spending Power.” 1995. Iowa Law
Review.)
3. Points 1 and 2 combined indicate that the President’s use of the defense budget to
provide military and huminitarian aid to Ukraine are consistent with his Article II
powers.
4. The members of Congress who brought this suit lack proper standing to sue (point
A)
5. The case presents a political question that the Court should not hear (point b)

(a) Do the members of Congress have standing to sue?

● The members of Congress do not have standing to sue. As Congressmen, they can not
point to any specific injury by the Executive Branch against them that has been
recognized as valid by the Court.
○ Raines v. Byrd indicates individual Congressman must suffer from personal
injury. They cannot, as they claim, base their standing on the alleged overstepping
of the President on Congress’ Article I powers to make war, because this alleged
action only challenges Congress’ political power and does not inflict personal
injury on the Congressmen bringing suit.
○ The Congressmen also cannot base their standing from a tax payer perspective (in
other words, they can not claim that their injury stems from having to pay taxes to
support an allegedly unconstitutional exercise of power). Hein v. Freedom From
Religion Foundation, 551 U.S. 587 (2007) Indicates that individual taxpayers do
not have standing to sue the Executive Branch for spending.

(b) Is the case a political question?

● The case presents a political question that the Court should ignore.
○ In Baker v. Carr, the Court identified several criteria for determining when a case
would involve a political question. One of the these criteria is “...textually
demonstrable constitutional commitment of the issue to a coordinate political
department.” In the present case, the constitution clearly empowers the executive
branch authority over foreign relations, something which the majority in Baker
identify as an area that frequently invokes political questions.
 ○ In terms of military agreements, the Executive Branch’s discretion was upheld
again in Goldwater v. Carter 44 US 996 (1979), where the Court declined to hear
a Congressional challenge against a foreign policy decision made by President
Carter on the basis that it was a political question.
○ The Congressmen bringing suit have clear political motivations to try to bring an
end to President Biden’s policy. The Republican party in general has been
hesistant to aid Ukraine, and these Congressmen specifically have publicly
denounced the President’s policy. Instead of seeking to make changes through the
proper political channels, these Congressmen seek to use the court to strike down
the President’s lawful exercise of his powers.

Justin
Does the War Powers Resolution violate the separate of powers?

1. Does the contribution of military equipment and funding fall under the provisions of the
WPR?
1. No. The contribution of military equipment and funding does not fall under the
provision of the War Powers Resolution. Sec. 2. (a) of the resolution is very clear
in its definition of what they imagined Armed Forces to be: which is the usage of
United States military resources to be utilized in attack or defense of the nation.
The contribution of equipment and funding falls nowhere under this section, nor
under Sec. 4 . (a) which explains what hostilities are. Additionally, the precedents
found within the Prize Cases confirm that Legislative’s check on the military
action of the Executive Branch is only possible when the President is unilaterally
using the military to attack other foreign nations. If military equipment and funding
fell under these provisions, any aid we send to our allies (I.e. Israel) would also
fall under the purview of military action. This is not the case, as the test
established in Youngstown Sheet and Tube v. Sawyer finds that the
Congressional and Executive Branches working in conjunction has the highest
level of Constitutional authority. Congress has authorized billions of aid at this
point, so they themselves set the precedent by not taking action against the
appropriations until now. Further, Train v. City of New York outlined that it’s only
unconstitutional to disperse appropriations if the bill states its meant for a specific
purpose. The bill stopping the temporary shutdown did not outline that the aid to
the Department of Defense (under the executive branch) could not be used for
aid to Ukraine.
2. Must the President discontinue military action in Ukraine pursuant to the WPR?
1. No. The President does not need to discontinue military action in Ukraine.
Zivotofsky v. Kerry aligns with the idea that it is within the role of the Executive
Branch to be the sole authorizer of foreign nations. The United States has long
recognized Ukraine as an independent nation so President Biden’s actions to
maintain this status are well-within his constitutional authorities. Campbell v.
Clinton dealt with an incredibly similar manner and the Courts found that the
Legislative branch had enough authority to end the war making. Just because
Kevin McCarthy and the rest of his extremist authorities cannot get their party in
line does not mean that the President has to bend to their will through the courts.
Though this precedent isn’t as strong: INS v. Chadha disallowed the House to
veto executive actions, and a similar ideal should be found here.