Appeals Court Revives Members' Suit to Stop War

Acting with surprising speed, a federal appeals court in Boston has revived a lawsuit seeking to block President Bush from launching an attack against Iraq without a formal declaration of war approved by Congress.

The constitutional challenge - filed by a dozen House Democrats and a number of military members and their families - was dismissed Feb. 24 by a lower-court judge who ruled that the dispute was not an issue to be settled in the courts.

But in a rare move that signaled heightened interest in the matter, a three-judge panel of the 1st Circuit Court of Appeals granted an emergency motion to hear an appeal of the lower-court ruling with an expedited argument and briefing schedule. An emergency hearing was held last week and the panel asked for both sides to submit briefs in the case by Tuesday, indicating that it would issue a ruling quickly.

The panel is made up of two judges appointed by former President George H.W. Bush and a third judge appointed by former President Bill Clinton.

Normally, such appeals can take months to reach the ears of appellate judges. While the plaintiffs are fighting an uphill battle to win judicial intervention in an area of law that courts have traditionally avoided, the quick action of the appellate judges could indicate a renewed judicial interest in a question deeply rooted in the Constitution.

A judicial voice on the question of war may have an unexpected impact on the political discussion that appears to be reaching a climax. A decision in December 1990 by U.S. District Judge Harold Greene that dismissed a challenge to the pending Persian Gulf War by 54 Members of Congress nonetheless electrified the debate because the judge ruled that only Congress could declare war.

"The court is not prepared to read out of the Constitution the clause granting to Congress, and to it alone, the authority 'to declare war,'" Greene wrote in his 1990 decision that neither side appealed.

Now, faced with another military confrontation in Iraq more than a decade later, a smaller group of House Democrats is again asking the courts to intervene before the United States launches a pre-emptive strike against a sovereign nation in a case that appears to be carefully tailored to withstand arguments that the plaintiffs lack standing or that the issue is not ripe for judicial review.

"Courts only very rarely manifest the high level of interest reflected in this kind of rapid-fire briefing and argument," said Charles Tiefer, a constitutional law expert at the University of Baltimore and a former House deputy general counsel. "The judges of the First Circuit must take their responsibility in this war-powers case quite seriously to formally set up this swift but elaborate arrangement for dealing with the appeal."

John Bonifaz, the attorney who is seeking the injunction against Bush and Defense Secretary Donald Rumsfeld, said in an interview Friday that he expects the court to rule quickly given the military buildup outside Iraq and statements by Bush that indicate the conflict is set to begin within days.

"They are taking this case seriously at this extraordinary moment in history," Bonifaz said. "They recognize the urgency, and their questioning of both sides demonstrated that they are engaged in this case and they recognize the gravity of what is at stake."

Bonifaz, a 36-year-old Harvard Law School graduate who is the recipient of a MacArthur Foundation genius grant, typically deals with cases regarding campaign finance and voting rights as founder of the National Voting Rights Institute. But he is now arguing on behalf of a number of unidentified active duty military personnel and a group of lawmakers, led by Democratic Reps. John Conyers (Mich.) and Dennis Kucinich (Ohio), who object to participating in an undeclared war.

Justice Department lawyers offered a menu of reasons for throwing the case out, arguing that the courts have no role in overseeing war powers that are handled by the other two branches of government.

Justice Department attorney Gregory Katsas told the panel that Congress has declared war just five times while the military has engaged in acts of war more than 100 times in the nation's history. And, he argued, if Congress disapproved of the war, it could simply stop spending money to support the war actions.

But Bonifaz argued that Congress has abrogated its duty and responsibility to decide whether the nation should go to war and that the court must step in to correct a usurpation of power by the president.

"Article I, Section 8 of the Constitution is quite clear that Congress, and only Congress, shall have the power to declare war. The president is not a king. He cannot wage war against another country without Congress first deciding to send the nation to war," Bonifaz said.

Bonifaz contended the resolution passed last October by Congress unlawfully ceded to the president Congressional powers to declare war. "Congress can no more transfer its power to declare war to the president than it can transfer its power to levy taxes or appropriate money. There are certain non-delegable powers under the Constitution that cannot be transferred to the president."

And in a situation where Congress has collaborated with the executive branch to abandon its constitutional duty, the judiciary "must step in and uphold and protect the Constitution. If the court finds that it cannot intervene in this matter, then we might as well write Article I, Section 8 out of the Constitution. It will effectively have no meaning."

What exactly would suddenly give the congress critters a backbone by stating "This is a Declaration of War"? They could still turn right back around and say, "what do you mean we have suffered casualties? Nobody said anything about causualties!" Because the majority of the people simply listen to "the Spin of the Day", the congress critters mostly get a pass.

You keep talking about commiting resources. The only resource congress can commit is money, and they have done so. What exactly do you have in mind?

Calm down dude. If the court decides to issue and injunction, Dubya will, in his polite Texas manner, tell them to go to heck.

The court can not stop him from exercising his constitutional power as CinC. Congress has clearly authorized and sanctioned his actions (by a 2/3 majority of both houses!!) [remember this was LAST YEAR, no majority in the senate for the good guys!!]

Can Congress cede to the President the power to make laws?

I would think Congress, by majority vote, could wield any absolute power in any way they decide. Could they cede the power to make laws? Sure, they do it all the time...much of what the President writes, in the budget, for example, becomes law, and special interest groups frequently write legislation or portions thereof that Congress later votes into law.

The central bullsh*t of this case, based on the article which leads this thread, is this: Congress has already adopted language that is nearly word for word the same as what Congress used in authorizing President Jefferson to conduct a war against the Barbary Pirates, two centuries ago. No one has ever questioned that the Barbary Pirate War was anything other than constitutional.
The War Powers Clause of the Constitution has not been revised since it was first drafted. And some of the people who wrote the Constitution, some of the FRAMERS, were sitting in Congress when the Barbary Pirate declaration was passed. That's a PRETTY GOOD indication that it was in accord with the Constitution.
I've read every single case in the history of the Supreme Court that either dealt with (two) or ducked (all the rest) a consideration of the War Powers Clause. I stand by my initial statement that this case is going nowhere.

Congressman Billybob

Latest column, not yet up on UPI, and FR, "Once, Twice, Three Times a Moron"

Latest book(let), "to Restore Trust in America."

"Andrew Jackson ignored a Supreme Court ruling, and I am sure there are other precedents. "

The only one I'm aware of was Clinton's ignoring the unanimous supreme court ruling on the Paula Jones suit that "Like every other citizen who properly invokes that jurisdiction, respondent has a right to an orderly disposition of her claims."

It's a very significant act in our country's history.

Well, FDR threatened to "pack" the Supreme COurt with additional Justices of his own chosing to gete approval for programs he wanted pasted which the Court opposed. There is nothing in the Constitution setting the number of Supreme Court Justices. If the Republicans controlled both houses, Bush could and should make the same threat when the Court legislates from the bench or intrudes into the constitutional authority of the Executive.

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