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."
COngress has already done so but those among us with a bent toward cognitive dissonance insist that sooner or later they will knock down the concrete wall with their bony heads.
Bam, bam, bam.......
The implication of the above sentence is that you really have a hard time reading. Congress is in the driver's seat. If 51 Senators and 218 Representatives agree that Bush isn't acting in the interests of the US, they can withdraw that authorization in about five minutes.
Beyond any lawyerly parsing, that was clearly and undeniably NOT the intent of the Founding Fathers.
The only lawyerly parsing I see here is your own.
The difference here is that it does not cite the UN as authority, which is certainly un-Constitional.
A more wordy version from the War to End All Wars:
Whereas the Imperial German Government has committed repeated acts of war against the Government and the people of the United States of America: Therefore be it Resolved ... That the state of war between the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally declared; and that the President be, and he 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 against the Imperial German Government; 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.
And Japan in WWII:Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States 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 against the Imperial Government of Japan; 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.
We won those wars. Didn't win in Korea and Vietnam, 'cause we had no formal dedication of American resources and resolve.
I've enjoyed it folks: gotta get to work. I'm blowing all y'all off, just getting busy,
Not at all. We are not talking about a "declared" war situation. Not only that, the Congress has given the President the authority to deal with Iraq two-fold; the original Gulf War authorization from January 1991, along with the War on Terror authorization of September 2001.
In any event, the Constitutional questions have been satisfied. This is nothing more than political machinations. If Al Gore (shudder) were sitting in the Oval Office and contemplating an attack on Saddam, we wouldn't even be having this conversation; the GOP understands the necessity of dealing with this meglomaniac. They woulnd't use the courts to try to hamstring the Commander-In-Chief, politics notwithstanding.
Can Congress cede to the President the power to make laws?
My opinion is that a Declaration of War is an act of the People of the United States, acting through their representatives in Congress assembled.
Such a Declaration should be unambiguous, and should commit the necessary resources to victory.
I am a complete and wholehearted supporter of the President and his actions in the war on terrorism. But I share the well-expressed concerns of others that the Joint Resolution of last Fall allows Congressthings to turn their backs on both Bush (not so important)and our soldiers when the going gets tough.
This is exactly what happened in Vietnam when the "Tonkin Gulf Resolution" failed to bear the weight that was placed on it.
We the People do support our President and our armed forces, we do support making war on the Government of Iraq in order to destroy it and cause it to be replaced by another, better government.
The appropriate vehicle for us to give voice to our support is not demonstrations at NASCAR events or forums like this one-it is for us to act through our representatives and to declare war.
Yes, the President was given the power of "Executive Order". Congress has the power to repeal those orders though they rarely do.
Folks, we are looking at three guys who are about to turn the world over to the Islamists. That's whats at stake. It will take a month to sort this out, if they issue the injunction.
Anyone who thinks a declaration of war in the present political situation will come quickly is dreaming. The RATS know that delay in commencing the war may bring down the Bush presidency. They will insist on a 'debate.' The debate will drone on and on. Few democrats will put their nation's interest above regaining power. Meanwhile, our troops are twiddling their thumbs and the air that is leaking from our political will, will become a torrent.
If the injunction is issued, its 50/50 we withdraw from the middle east with our tail between our legs. We will be revealed as the paper tiger the left wants our nation to be. Rich and ripe for picking.
Think about it. If we cannot remove Hussein after commiting 250,000 troops and a huge amount of political capital, our time as a country that can defend itself is over. For its evil, Islam is a resurgent culture. They actually believe that Islam is worth killing for and dying for. All we can do is argue and debate.
Our dithering over dubious constitutional claims is more evidence that our culture is decadent and self-obsessed. The forest here is survival of the West against an onslaught by barbarians. Either we see the forest, or our children can look forward to the 'constitutional' legacy of terrorism, Islam and the end of the West.
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