92 Indiana Law Journal 1635 (2017)
This Note concludes that, although Zivotofsky I provides a basis for judicial review of the legality of the Obama Administration’s “hostilities” determination (and, by extension, other questions of statutory interpretation related to foreign affairs), that review could be blunted by judicial deference to the executive branch’s factual determinations relevant to whether the Libyan airstrikes constituted “hostilities” within the War Powers Resolution. By addressing the political question doctrine’s history and the response to Zivotofsky I, this Note will explore whether the political question doctrine—particularly in cases of statutory interpretation—has lost some of its force as a justiciability doctrine. This Note will demonstrate that a court has precedent to find the interpretation of the War Powers Resolution to be a justiciable question post-Zivotofsky I, and it will examine whether a court would apply principles of executive branch fact deference to the executive branch’s interpretation of “hostilities” and whether the statutory condition of “hostilities” in the War Powers Resolution is met.
Kile, Emily A.
"Executive Branch Fact Deference as a Separation of Powers Principle,"
Indiana Law Journal: Vol. 92:
4, Article 8.
Available at: https://www.repository.law.indiana.edu/ilj/vol92/iss4/8