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."
If by "they" you mean Congress you are exactly correct.
And, as a practical matter, they cannot cut off funding to our troops when they ar engaged in combat.
Please read my post #16 to understand what Congress has not done.
HEROES DEFEND THE USA AND CONSTITUTION
ZEROES HELP THE ENEMIES OF THE US MORE THAN DRIVERS OF SUVs
HEROES
Circuit Judges Randolph, Williams, and Garland of the
U.S. Circuit Court of Appeals for the District of Columbia unanimously ruled.
"No court in this country has jurisdiction to [hear constitutional claims of] the Guantanamo detainees,
even if they have not been adjudicated enemies of the United States".
HERO
Chief Judge William Young, First Circuit: "We are not afraid of any of your terrorist co-conspirators, Mr. Reid ...
"You’re a big fellow. But you’re not that big. You’re no warrior. I know warriors....
You are a terrorist, a species of criminal guilty of multiple attempted murders."
To call you a soldier gives you far too much stature. You are a terrorist, and we do not negotiate with terrorists.
We hunt them down one by one and bring them to justice. ...
"See that flag, Mr. Reid? That is the flag of the United States of America That flag will fly there long after this is long forgotten."
HEROES
4th U.S. Circuit Court of Appeals said the status of 22-year-old Yaser Esam Hamdi
as a citizen did not change the fact he was captured in Afghanistan while fighting with Taliban and al-Qaida terrorists.
HERO
Judge John Bates ruled lawmakers lacked standing to bring the case to stop withdrawal
from the 1972 Anti-Ballistic Missile Treaty because it is a political matter, not judicial.<>
HEROES:
The U.S. Supreme Court ending misuse of public funds
and a coup by Mary Frances Berry (D, US Commission of Civil Rights).
HEROES:
Judges Guy Jr., Leavy, Silberman - Expanded wiretap guidelines do not violate the Constitution
HEROES:
9th U.S. Circuit Court of Appeals - Court blocks legal challenge to detention of Afghan war prisoners
HEROES:
Rebecca W. Watson, Assistant Interior secretary and those who reversed
the Clinton administration's decision to deny approval of a power source
obtained from tapping into hot water beneath the surface of the Medicine Lake caldera,
a 6-mile-by-4-mile remnant of a collapsed volcano in the Modoc National Forest.
48-megawatts will now be produced.
ROOM FOR IMPROVEMENT BY ZEROES
ZEROES:
In Boston, the federal appeals court
[normally devoted to protecting and defending drug companies
like Schering-Plough, which fund the court with $$$$$ and junkets for judges]
reversed a reasonable denial by (hero) federal Judge Tauro
who threw out a complaint by "peace" protesters against President Bush
as he works around the clock with the valiant US military to protect America after 911.
This is the same court which also removed a picture of President Bush from the court's walls,
even though Clinton's remained.
ZERO:
In Los Angeles, US District Judge Robert Takasugi of Los Angeles issued a preliminary
injunction blocking enforcement of the US citizenship requirement for airport guards.
ZEROES:
In Washington, US Federal Circuit Appellate Judges Clevenger, Friedman and Prost
turn down an Appeal accompanied by evidence of usurping US Constitution and US energy security.by the US Patent Office.
The Court inaccurately purported that measuring energy output has "no utility" for the USA
even as the USA is at War and greatly and urgently needs energy sources.
To cover it up, amicus curiae were gagged who would have testified that the Patent Office misquoted them.
[Meanwhile, the US Patent Office under Q. Todd Dickenson continued to issue patents using
astrology to predict lottery numbers, claiming that in contrast to energy patents,
astrology and lottery predictions of the future have unique "operability" and "utility"].
ZEROES:
In San Francisco, the Ninth Circuit Court of Appeals says in Silviera v. Lockyer,
that "the Second Amendment does not confer an individual right to own or possess arms."
The "War Powers Act" is unconstitutional.
There are (at least two) "war powers". The first, the power to command the Army and the Navy, is assigned to the President in Article II, section 2 and is not subject to Congressional review. This power is sufficient to engage in combat against our enemies and the purported limitation on this power by the WPA is an obvious nullity, as it would (if taken seriously) amend Article II, section 2.
The second "war power" is the power to commit all the resources of the nation to victory. This power is assigned to Congress in Article I, section 8. The President cannot commit the resources of the nation to victory, because he can only command such armed forces as Congress has designated and provided for. To pretend, as Lyndon Johnson did, that his role as CINC allowed him to act in the name of the nation, is a fraud and would in effect amend Article I, section 8.
We must demand that Congress declare war in our name. Only We the People have the power to do this, and we delegated it to Congress in 1788.
Let's roll.
Good question. A better question is "Where were the Republicans?", the loyal opposition at the time.
Where were they when Clinton was lobbing missles (the military kind)?
Come on...pressure your Congresscritter to formally declare war: it is in accordance with the Constitution, and guarantees that the full resources of the nation are devoted to the effort (as Jim Noble has so eloquently explained).
As an aside, the Constitution says nothing about the UN, but it is depressing that our President is more concerned about UN approval than abiding by the Constitution.
What does it say? It says Congress shall have the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water..."
That's pretty broad. The President went to the Congress asking for "letters of Marque and Reprisal," which were granted by Congress.
They made Rules concening Captures on Land and Water (through a defense authorization bill).
People like you are just WEIRD to me.
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