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."
And why didn't the GOP members of Congress take him to court?
How typically Liberal of you to try and blame Republicans for Clinton's actions. How can one file a law suit to stop something that has already happend such as Clinton's sham attack on that asprin factory!
The President has plenary Article II, section 2 power to command the armed forces into combat against our enemies.
But a President is very, very unwise to exercise this power if the sitting Congress would refuse a declaration of War.
And I think this "coordinate" view of Our war power (remember, it's Our power we are discussing, the President and the Congress are merely exercising it on Our behalf) is particularly important in the present emergency.
If Congress would defeat a declaration of war now, it is my opinion that the troops should be brought home.
Not because Bush would be required to do so-because he would be unwise to proceed under those conditions.
This ain't "mother may I." This is serious stuff.
The people's legislators have authorized the President to proceed, and given him the resources to do so.
That is as much of a "declaration of war" as you need in the brave, new world of tinpot dictators playing with WMD that we live in.
Geez, by that logic, we shouldn't prosecute murderers. No, you file suit to a) punish him for breaking the law; b) keep him from doing it again; and c) prevent others from doing it too.
No, there are remedies specified in the Constitution (judges can be impeached).
To suggest that this or any President can and should simply disregard the Constution is dangerous, and renders it a meaningless document. A dangerous, dangerous precedent.
That's interesting. I would hope a Constituionalist would challenge that finding. How far did the suit go? Did it go to the Supreme Court?
How typically Liberal of you to try and twist things around. We're not talking of "prosecuting" criminals. This is a civil action, not criminal. Your attempt to equate this to a criminal action destroys any credibility you think you have.
I consider Clinton a reprehensible criminal worthy of criminal prosecution. I thought Contempt of Congress was a criminal matter...
Nice try but, no cigar. Maybe you should be asking Janet Reno why she didn't prosecute Clinton.
Contempt of Congress is initiated by a resolution reported from the affected congressional committee which can cite any individual for contempt. The resolution must then be adopted by the House or Senate. If the relevant chamber adopts the contempt resolution recommended by one of its committees, the matter is referred to a U.S. Attorney for prosecution. The U.S. Attorney may call in a grand jury to decide whether or not to indict and prosecute. If prosecuted by the courts and found guilty of contempt, the punishment is presently set at up to one year in prison and/or up to $1,000 in fines.
Thanks to the fine folks at C-Span:
http://www.c-span.org/questions/weekly9.htm
So Janet Reno could not have prosecuted Clinton without a contempt resolution from Congress. (The last time that happened, by the way, was 1982).
This will help restore the Constitution. Because the vote WILL pass. There's not enough demons to stop it.
And the Senate doesn't dare fillibuster.
I think we all know why Reno ignored Clinton's atrocities.
On the flip side, if, God forbid, the war does not go as well as hoped and planned, and we suffer a lot of casualties, you'd better believe Congress will be strutting around and saying things like, "Well, the President exceeded his authority...he's a madman, I tells ya...we never meant for him to go that far!" We can already see equivocating by a few Congresspukes.
And if they vote on a resolution, and it does not pass, and the President does not go to war, and something bad happens, Congress has only itself to blame.
Protect the President. Hold Congress accountable. Get them to declare war.
You and Bi=onifaz need to reread Article 1, Section 8. It clearly states that only Congress has the power to declare war. It is silent on how they go about it and the article does not oblige them to declare war while authorizing and funding same.
The history and the precedents are clear. All one need do is look at the Barbary Wars conducted by one of the same men who penned the Constitution. They were conducted without a formal declaration because from the beginning formal declarations are the purview of the Congress but not mandated by the Constitution in order to authorise hostilities.
The courts are mucking where they shouldn't be. It is a political question to be answered by the elected representatives of the US and they have already spoken.
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