Posted on 03/13/2003 4:03:27 AM PST by Cacophonous
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."
Correct. I don't think they have the cojones to do it, because it would mean holding themselves accountable if things do not go as well as planned.
Let's roll.
With all due respect, while it is wonderful that you have studied the issue enough to have an opinion, when so many have not, what you think is not important, unless you are going to translate those thoughts into an attempt to amend the Constitution. What matters is what the Constitution says in Article I, Section 8.
This country has launched military involvements without a congressional declaration of war before and the courts never took judicial notice.
The President (whoever he was at the time) was wrong then, and the courts should have. Bad precedents should not be repeated.
Au contraire! It has a precise meaning.
Here is what declaring war means:
"A state of war is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States."
All the resources of the country are hereby pledged by the Congress of the United States
That's what it means when the People of the United States (acting through their representatives in Congress assembled) declare war on their enemies. That's the power that We assign to Congress in Article I, section 8.
And if you think that power is a nullity (as many here do), look what happens when our armed forces are in combat without "all the resources of the country".
The Commander-in-Chief is not CINC of the People, he is CINC of the armed forces. He already has the authority to order them into combat (this was already adjudicated in in both Korea and Vietnam, the lawsuit is an absurdity).
What he lacks the authority to do is to pledge the full resources of the nation to victory. And when that commitment is lacking, the results are all bad-the minority in Congress can complain constantly about every reverse and every bad thing that happens (as they do when you are not taking over Granada or Panama), the People are not fully engaged in the war effort, and the sustaining power of the People behind our troops tends to flag and then to fail.
The "War Powers Act" is unconstitutional, a pathetic attempt by a spineless Congress to have it both ways.
Only the People of the United States can declare War, and our only mechanism to do so is through our Representatives and Senators.
We should demand that they do so-not to enable the President to act, but to add the power of "all the resources of the nation" to the struggle that lies ahead.
Old Hickory is spinning in his grave that someone using his name said such a thing...
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