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 what they have said, in effect, is "Well, go ahead and go to war; we won't stop you." It's a far cry from the full support and accountability of a formal declaration, and leaves an awful lot of room for equivocation.
I've been following and enjoying the dialogue. I love a good civil discourse. I still disagree with you, but am enjoying the discussion.
BTW, I like you handle.
Thanks.
Congress has the power to declare war. Last year, they ceded that power to the President, only in the case of the war on terror, under HIS discretion.
Before you argue that Congress cannot cede the power, I will disagree now. The power to declare war is an absolute power and can be exercised in any way, including ceding the power to another. ACOORDING TO CONGRESS, the war starts when George Bush says it does.
That's not what they said.
This is what they said,HJ RES 114.
Deign to tell me how you disagree??
If I read it correctly, through my non-lawyer eyes, the case was tossed because the plaintiffs lacked legal standing to bring the suit (whatever that means), and the SC actually refused to hear it without comment.
I still think a stronger lawsuit would work. But, as I said, I'm not a lawyer.
Now, I'm not a lawyer, and it may merely be a matter of semantics, and will probably (hopefully) have no impact on the war efforts. I think the long-term effects to the Constitution and to our structure of government--i.e., the President having having Constitutionally-limited powers--will be more profound.
But I would like Congress to be able to held to account. As things stand, they won't be.
I'm sorry, a stronger case won't cut it. The plaintifs lacked standing because the issue was between the congress and the president. The congress and the president were in agreeement, so there was no issue to resolve.
In the present situation it is the same. The congress, with a 2/3 majority approved the measure and it has become law. In order to have a standing before the court, the injured party (in the case Congress itself) must bring the case against the president [assuming the president had "declared" war thereby usurping congress perogative.)
I'm sorry. The implication of this view is that the President can go to war whenever he pleases, and with whomever he chooses, much as a dictator can. Beyond any lawyerly parsing, that was clearly and undeniably NOT the intent of the Founding Fathers.
But again, the Constitution is silent on the methods of declaring war and the appeals court is sticking it's oversized nose in where it doesn't belong. With hostilities days away, the court should just STHU.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.