¹ John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980).

² Id. at 87.

³ Here Ely cites Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610 (1952) (Frankfurter, J., concurring).

⁴ By contrast, Ely finds that the “secret war” in Laos (1962–1969), and the secret bombing of Cambodia (1969–1970)—both of which were largely unrelated to U.S. actions taken in Vietnam—were not known about or authorized by Congress, and hence were unconstitutional. The proper course when such wars become known, in Ely’s view, is either impeachment of the President or, at a minimum, a congressional resolution of censure.

⁵ Curiously, Ely notes an amicus brief filed in Dellums v. Bush, 752 F.Supp. 1141 (D.D.C. 1990), by “eleven law professors” without disclosing his personal involvement.