U.S. Court Rejects Appeal to Block War

Reuters | 3/13/03

[kattracks]

BOSTON (Reuters) - A U.S. appeals court on Thursday upheld a lower court's ruling that rejected a legal bid by a group of soldiers and U.S. lawmakers to keep President Bush from invading Iraq without a formal declaration of war by Congress.

A three-judge panel for the 1st U.S. Circuit Court of Appeals posted an opinion on its Web site (http://www.ca1.uscourts.gov/) in which it affirmed U.S. District Judge Joseph Tauro's decision to dismiss the lawsuit.

"The case before us is a somber and weighty one. We have considered these important concerns carefully, and we have concluded that the circumstances call for judicial restraint," Judge Sandra Lynch wrote in the ruling.

The civil lawsuit, brought by three members of the military, six parents of U.S. troops and members of the U.S. Congress, sought an injunction to stop potential U.S. military action on the grounds that only Congress has the right to declare war.

The suit, which named Bush and Defense Secretary Donald Rumsfeld as defendants, said the framers of the U.S. Constitution aimed to deny presidents the imperial war-making powers of European monarchs.

Although Congress passed a resolution in October backing the possible use of U.S. military force against Iraq, the plaintiffs said this was an unconstitutional measure and did not amount to a formal declaration of war.

In his ruling last month, Tauro said a federal court can judge the war policies of political branches of government only when actions taken by Congress and the president are in "resolute" conflict -- a situation that he said did not exist at the time.

The appeals court said it was a question of "ripeness" -- and that it was essentially the wrong time for the judicial branch to intervene.

"The theory of collision between the legislative and executive branches is not suitable for judicial review, because there is not a ripe dispute concerning the President's acts and the requirements of the October Resolution passed by Congress," Lynch said in the appeals court's ruling.

Some 200,000 U.S. and 50,000 British troops are poised to invade Iraq, and Bush has vowed to go to war without United Nations backing if necessary.

[Wright is right!]

"As a bigtime geek, I have to ask about how you benchmarked this. I assume you used SupremeCourt 9.0.0.0 Gold Edition--that is the judicial benchmarker's standard. But there's some controversy on whether one should use AmbulanceChaser 12.5.1.2 (written in ANSI C) or the SueOnceLoseAnywhere 1.1.6 (which is written in Java). A few intrepid souls are using GNUsanceSuit 0.9 (an open source litigation package, presently in beta--and only available for Linux). :o)"

Actually none of those. I used ScaliaJudicialGuffaw 8.0.1.0 with the RehnquistSidesplit Plug-In Module. You can also get a close approximation under NoGorithm 7.2.

Michael

[Poohbah]

Ah, a classic set.

BTW, did you ever get the ThomasRollEyesHeavenward module to work properly? It always went into an infinite loop whenever it interacted with the BoiesThrowStuffAtTheWallAndPrayItSticks module...

[ez]

This suit was essentially brought by the Progressive Caucus (aka DemocratSocialists of America)

[ATOMIC_PUNK]

My goodness, you're busy

This is Kats smaller computer room she uses the big on in the morning

LOL

[Viva Le Dissention]

Why are you saying that this was decided on the war powers clause of the Constitution itself?

Granted, I've only given the opinion a cursory glance, but it appears to me as if this was a "case and controversy" dodge. I didn't see the court reaching the merits at all.

[VeniVidiVici]

Ah. I see they have part of the cast of "The Jeffersons" and "Snow White" as parties to the suit:

JOHN CONYERS - George
SHEILA JACKSON LEE, - Weezy
DENNIS KUCINICH - Grumpy
JESSE JACKSON, JR. - Sleepy
JIM MCDERMOTT - Dopey

[kattracks]

...she uses the big on in the morning

Now, if I only had spell check.

[Wil H]

They should be nailed for bringing a frivolous law suit.

The US has declared war precisely six times.

the War of 1812, against the Spanish in 1846, Against the Germans in 1917, against the Austrians and Hungarians also in 1917 or 18 and against Japan in 1941.

All other miltary action by the US was carried out without a Declaration of War.

[Wright is right!]

"BTW, did you ever get the ThomasRollEyesHeavenward module to work properly? It always went into an infinite loop whenever it interacted with the BoiesThrowStuffAtTheWallAndPrayItSticks module..."

The ThomasREH module and the BoiesHurl plug-in have unresolvable conflicts resulting in a stack overflow at register O.H.4.A.B.A.R.F.

Michael

[We Happy Few]

Two points.

The Judiciary does have some role with respect to "war" because Article III, section 3, clause 1 empowers the Judiciary to try cases of treason. Treason is a defined as an offense in terms of "levying War against [the United States]" or "in adhering to their Enemies, giving them Aid and Comfort." Thus, a conviction for treason with respect to the first of these two phrases would require a court to reach the conclusion, as a matter of law, that a state of "war" existed. It is true that this judicial power is not the power to wage war, but the political implications of being able to say whether the country is or is not "at war" as a technical legal matter are not trivial.

Second, a state has the explicit power under Article I, section 10, clause 3 to wage war if it is actually invaded or is "in such imminent Danger as will not admit of delay." It is not hard to see the importance of this right for the frontier states 200 years ago. The power may be considered archaic today, but the constitutional right still explicitly exists.