Category: War Powers

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Judge Walton Dismisses Kucinich v. Obama

Apparently he saw no more way of distinguishing Campbell v. Clinton than I did.

In fact, the court sounded a bit peeved that the case was brought in the first place: “While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law. The Court does not mean to imply that the judiciary should be anything but open and accommodating to all members of society, but is simply expressing its dismay that the plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.”

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He May Not Be a Witch, But He Sure Can Make Congressional Powers Disappear

Although an acquaintance (a noted constitutional scholar) emailed me today “it is difficult to believe anyone could be so far gone as to think the President can transgress a debt limit on his own authority,” he underestimates the “can-do” (or maybe it should be “can’t-do”) spirit of the U.S. Senate. According to this article, several U.S Senators are toying with the idea that the debt limit is unconstitutional under the Public Debt Clause:

“This is an issue that’s been raised in some private debate between senators as to whether in fact we can default, or whether that provision of the Constitution can be held up as preventing default,” Sen. Chris Coons (D-Del.), an attorney, told The Huffington Post Tuesday. “I don’t think, as of a couple weeks ago, when this was first raised, it was seen as a pressing option. But I’ll tell you that it’s going to get a pretty strong second look as a way of saying, ‘Is there some way to save us from ourselves?'”

It should be noted that this comes on the heels of Senator Coons’s performance in the Senate Foreign Relations Committee hearing on Libya yesterday. Questioning State Department Legal Advisor Harold Koh, who testified that the Libyan military operation did not constitute “hostilities” within the meaning of the War Powers Resolution, Coons congratulated him on making a “rather compelling case” that congressional authorization was not needed under the WPR (although, somewhat bewilderingly, Coons also described Koh’s interpretation of “hostilities” as “strained,” “very narrow,” and in “very real tension” with a common-sense understanding of the term).

Apparently Senator Coons thinks that the way to “save Congress from itself” is to outsource its power to the executive branch. When this or some future president asserts that he can both conduct and fund military operations on his own authority, regardless of what Congress says, and people wonder where he could get such an idea, perhaps Senator Coons will take a bow.

 

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How is Kucinich v. Obama Different than Campbell v. Clinton?

In a federal complaint filed today, a bipartisan group of Congressmen (led by Representative Dennis Kucinich) seeks “injunctive and declaratory relief to protect the Plaintiffs and the country from a stated policy of Defendant Barack Obama, President of the United States, whereby a president may unilaterally go to war in Libya and other countries without the declaration of war from Congress required by Article I, Section 8, Clause II of the U.S. Constitution.” The plaintiffs allege that the military action in Libya violates both the Constitution and the War Powers Resolution. They also contend that the administration has illegally funded the war by using monies appropriated for other purposes in violation of the Anti-Deficiency Act.

Leaving aside the merits, it is hard to see how the plaintiffs can hope to surmount the judicial barriers erected to keep such claims from being heard in court. In Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), the court held that a group of Members of Congress (including Kucinich) lacked standing to bring virtually identical constitutional and statutory claims in connection with President Clinton’s military campaign in Yugoslavia. Relying on Raines v. Byrd, 521 U.S. 811 (1997), the court held that the plaintiffs could not seek judicial relief because there were legislative remedies available and their injury was caused by Congress’s failure to adopt those remedies.

In paragraph 165 of today’s complaint, the plaintiffs “acknowledge that standing of members has been curtailed in prior judicial opinions, but they believe that these decisions allow for an exception for these claims and that members of Congress must have the ability to seek judicial review in this context.”

They do not explain what “exception” they are relying on, but the language in Campbell is directly applicable to the current situation:

In this case, Congress certainly could have passed a law forbidding the use of U.S. forces in the Yugoslav campaign; indeed, there was a measure–albeit only a concurrent resolution–introduced to require the President to withdraw U.S. troops. Unfortunately, however, for those congressmen who, like appellants, desired an end to U.S. involvement in Yugoslavia, this measure was defeated by a 139 to 290 vote. Of course, Congress always retains appropriations authority and could have cut off funds for the American role in the conflict. Again there was an effort to do so but it failed; appropriations were authorized. And there always remains the possibility of impeachment should a President act in disregard of Congress’ authority on these matters.

Appellants’ constitutional claim stands on no firmer footing. Appellants argue that the War Powers Clause of the Constitution proscribes a President from using military force except as is necessary to repel a sudden attack. But they also argue that the WPR “implements” or channels congressional authority under the Constitution. It may well be then that since we have determined that appellants lack standing to enforce the WPR there is nothing left of their constitutional claim. Assuming, however, that appellants’ constitutional claim should be considered separately, the same logic dictates they do not have standing to bring such a challenge. That is to say Congress has a broad range of legislative authority it can use to stop a President’s war making, see generally John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167 (1996), and therefore under Raines congressmen may not challenge the President’s war-making powers in federal court.

As in Campbell, the plaintiffs challenging the Libyan operation have legislative remedies available—Congress could pass a resolution requiring withdrawal, cut off appropriations or even begin impeachment proceedings. As of yet, however, the House alone has passed a resolution forbidding ground troops in Libya, but not otherwise objecting to the operation. I just don’t see how the plaintiffs can distinguish their case from Campbell.

Neither does Jack Goldsmith.