![handle is hein.journals/jlp38 and id is 1 raw text is:
JUSTICIABILITY AS A CANON OF AVOIDANCE AND A
NORMATIVE GOOD IN WAR POWERS LITIGATION
Gregory V Momjian
INTRODUCTION
On September 29, 2021, a group of bipartisan congresspeople led by Jim
McGovern (D, MA) and former congressman Peter Meijer (R, Michigan)
introduced H.R. 5410: The National Security Reforms and Accountability
Act (NSRAA).' If passed, the NSRAA would be the first significant
amendment to the 1973 War Powers Resolution.2 Passed in the wake of the
Vietnam War as a check on the President's Commander-in-Chief powers,
the War Powers Resolution requires the President to report the commitment
of military forces to Congress within forty-eight hours of deployment.3 If
Congress, within sixty days, does not (1) declare war; (2) enact specific
authorization for the use of such force; or (3) extend the sixty-day period,
the President shall terminate any use of United States Armed Forces.4
According to McGovern and Meijer, their bill would reclaim
Congress's constitutionally prescribed role in war powers disputes which, in
their view, has been improperly eroded by a substantial expansion of the
President's Commander-in-Chief powers.5 In the eyes of some scholars and
members of Congress, like McGovern and Meijer, the War Powers
Resolution currently suffers from two major deficiencies: first, the President
can easily circumvent the Resolution's sixty-day clock by simply ending
J.D., 2022, University of Michigan Law School. The views reflected in this article are my own.
Thank you to the editors of the Journal ofLaw & Politics for selecting this piece and for their hard work
getting it to print. All errors are my own. I wrote the first draft of this note for Professor Stephen Cowen's
National Security Law seminar at the University of Michigan Law School. My thanks to Professor Cowen
for getting me to think about these issues and for his helpful suggestions. Thanks also to Max Ridge for
reading and commenting on earlier drafts. Finally, thank you to my parents who have constantly
supported me.
1 National Security Reforms and Accountability Act, H.R. 5410, 117th Cong. (2021) [hereinafter
NSRAA]. The bill is currently in committee. Similar legislation has also been proposed in the Senate
but without any judicial enforcement provisions. See National Security Powers Act of 2021, S. 2391,
117th Cong. (2021).
2 War Powers Resolution, 50 U.S.C. §§ 1541-48 (1973).
' Id. at § 1544(a)-(b).
4Id. at § 1544(b). Section 1544(b) also waives the Resolution's termination provisions if Congress
is physically unable to meet as a result of an armed attack upon the United States. Id.
5 Connor O'Brien, Lawmakers Aim for Blockbuster Overhaul of War Powers, Arms Sale, POLITICO
(Sept. 30, 2021), https://www.politico.com/news/2021/09/30/war-powers-act-bipartisan-overhaul-
514794; see also Harold Hongju Koh, Why the President (Almost) Always Wins in Foreign Affairs:
Lessons of the Iran-Contra Affair, 97 YALE L.J. 1255, 1297 (1988).
1](ViewImageLocal?handle=hein.journals/jlp38&div=1&collection=&method=preview&ext=.png&size=3)
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