by Jeff Matthews

Part 1 of this article addressed the Constitutional issues raised in Kucinich, et al.’s lawsuit against President Obama.  The case was filed June 15, 2011 in the federal district court in Washington, D.C. under Case No. 1:11-CV-01096-RBW, Reggie B. Walton, presiding.  This part explains why there might be a fair likelihood that no court will decide the merits of the claims presented in the suit.

Kucinich, et al.’s suit is, in most, if not all, respects, a repeat of the prior case of Campbell vs. Clinton, 203 F.3d 19 (C.A. D.C., 2000, cert. denied).  In Campbell, a group of congressmen brought suit against Bill Clinton, alleging he violated the Constitution and the War Powers Resolution by engaging in hostilities in Yugoslavia, despite Congress voting down a declaration of war by a 427-2 vote and voting down by a 213-213 vote a proposal to authorize the President to continue to use air force strikes.  However, Congress also voted against requiring the President to immediately end U.S. participation in the NATO operation and voted to fund that involvement. The conflict between NATO and Yugoslavia continued for 79 days, ending with Yugoslavia’s agreement to withdraw its forces from Kosovo and to allow deployment of a NATO-led peacekeeping force.

The U.S. district court judge dismissed the complaint in Campbell, ruling that the congressmen lacked standing.  The court of appeals affirmed, and the U.S. Supreme Court denied certiorari.  There is no doubt that President Obama will rely heavily on Campbell in a motion to dismiss Kucinich, et al.’s lawsuit.

Though all three justices on the court of appeals panel in Campbell affirmed the lower court’s decision to dismiss, all three justices also wrote concurring opinions because of fundamental disagreements between them as to certain legal principles.   The plaintiffs alleged that President Clinton’s military actions effectively nullified Congress’ acts.  The majority of the justices disagreed.  Justice Silberman delivered the opinion of the court.

In the opinion, the court held that members of Congress lacked standing to complain because, in fact, President Clinton’s actions did not nullify Congress’ actions.  The court wrote that Congress had sufficient means available at its disposal besides a resort to the courts:

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.

In his concurring opinion, Justice Silberman argued that, not only did congressmen lack standing to bring suit to challenge an allegedly unlawful use of military force by the President, but that nobody could.  In his opinion, the political question doctrine precludes courts from intervening in such an issue since it is inherently political and should be properly resolved through the ordinary political process – e.g., enacting laws, managing appropriations, impeachment proceedings, etc.   He wrote:

Appellants argued that we should consider in our standing analysis that if congressmen lack standing only military personnel might be able to challenge a President’s arguably unlawful use of force, and it would be undesirable to put the armed forces in such a position. Although that is not a consideration that bears on standing, see Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 227, 94 S.Ct. 2925, 41 L.Ed.2d 706 (1974), that argument leads me to observe that, in my view, no one is able to bring this challenge because the two claims are not justiciable. We lack “judicially discoverable and manageable standards” for addressing them, and the War Powers Clause claim implicates the political question doctrine. See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

Justice Randolph delivered a concurring opinion disagreeing with the reasoning of the majority, but agreeing in the result.  He specifically pointed out that, by the time the case was reached for determination, the hostilities had ended.   Therefore, the matter had become moot.

In addressing the mootness issue, Justice Randolph applied the standard which holds that a court may still review a case where the issue has become moot, but only when the circumstances show a likelihood that the issue will arise again in the foreseeable future.   The thrust of this doctrine is to allow the court to proceed to a decision because the alleged offender is capable of, and likely to, repeat the offensive conduct and evade review every time.  This is what he had to say:

The War Powers Resolution has been in effect for a quarter of a century. Yet President Clinton is the first President who arguably violated the 60-day provision. In order to show why their claims will “evade review,” plaintiffs tell us that, in modern times, United States attacks on foreign nations will be over quickly, by which they mean less than 60 days. Accepting that prediction as accurate dooms their case. It means that the likelihood of this President, or some other, violating the 60-day provision of the War Powers Resolution is remote, not only because we can expect other Presidents to obtain congressional approval for wars lasting more than 60 days, but also because most military actions in the future (as plaintiffs agree) will be over before the 60-day limit for undeclared or unauthorized wars has been exceeded.

In disagreeing with Justice Silberman on the law as to standing, Justice Randolph pointed out that prior legal precedent gave legislators standing in a limited scenario, only when legislators’ votes have been nullified:

The heart of the Raines decision is this: “legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.” 521 U.S. at 823, 117 S.Ct. 2312.

He then continued to state the reasons why the plaintiffs votes were not nullified, thereby failing the test for standing set forth in Raines:

To put the matter in terms of Raines once again, plaintiffs had the votes “sufficient to defeat” “a specific legislative action” – they blocked a resolution authorizing the President’s continuation of the war with Yugoslavia – but it is not true, in the language of Raines, that this “legislative action” nevertheless went “into effect.” Congressional authorization simply did not occur. The President may have acted as if he had Congress’s approval, or he may have acted as if he did not need it. Either way, plaintiffs’ real complaint is not that the President ignored their votes; it is that he ignored the War Powers Resolution, and hence the votes of an earlier Congress, which enacted the law over President Nixon’s veto. It is hard for me to see that this amounts to anything more than saying: “We, the members of Congress, have standing because the President violated one of our laws.” To hold that Members of Congress may litigate on such a basis strikes me as highly problematic, not only because the principle is unconfined but also because it raises very serious separation-of-powers concerns. See Raines, 521 U.S. at 825 n. 8, 117 S.Ct. 2312; Barnes v. Kline, 759 F.2d 21, 41 (D.C.Cir.1985) (Bork, J., dissenting), vacated as moot, 479 U.S. 361, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987). But because the case is moot, I need say no more.

The difference in opinion between Justice Randolph and the majority on the law as to standing is a nuanced one.   Basically, Justice Randolph would hold that legislators have standing when the President nullifies their votes, even though they might have other remedies available, such as votes on appropriations and impeachment.

The majority, however, held that standing exists only if there is no legislative remedy available, such as in, Coleman vs. Miller, 307 U.S. 433 (U.S., 1939) where members of the Kansas legislature sued the Kansas Secretary of State for improperly recording that the state senate voted in favor of a state constitutional amendment when it had not.   The majority in Campbell noted that the peculiar facts of Coleman meant that the Kansas senators would have been without a legislative remedy due to the hardship involved to procure the vote required to repeal the amendment in light of the fact it did not have the number of votes to pass in the first place.  In essence, the majority’s rule on legislator standing would be so restrictive as to disallow standing except in the rarest of cases.

Finally, Justice Tatel concurred with Justice Silberman as to the standing issue, but disagreed that the political question doctrine prohibits judicial review of the question.  He wrote:

Although I agree with Judge Silberman that Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), as interpreted by this court in Chenoweth v. Clinton, 181 F.3d 112 (D.C.Cir.1999), deprives plaintiffs of standing to bring this action, I do not share his view that the case poses a nonjusticiable political question.

To begin with, I do not agree that courts lack judicially discoverable and manageable standards for “determining the existence of a ‘war.’ ” Brief of Appellee at 36. See also supra at 24-25 (Silberman, J., concurring). Whether the military activity in Yugoslavia amounted to “war” within the meaning of the Declare War Clause, U.S. Const. art. I, § 8, cl. 11, is no more standardless than any other question regarding the constitutionality of government action. Precisely what police conduct violates the Fourth Amendment guarantee “against unreasonable searches and seizures?” When does government action amount to “an establishment of religion” prohibited by the First Amendment? When is an election district so bizarrely shaped as to violate the Fourteenth Amendment guarantee of “equal protection of the laws?” Because such constitutional terms are not self-defining, standards for answering these questions have evolved, as legal standards always do, through years of judicial decisionmaking. Courts have proven no less capable of developing standards to resolve war powers challenges.

Determining whether a state of war exists would certainly be more difficult in situations involving more limited military force over a shorter period of time. But just as we never shrink from deciding a First Amendment case simply because we can imagine a more difficult one, the fact that a challenge to a different military action might present a closer question would not justify abdicating our responsibility to construe the law and apply it to the facts of this case.

The government also claims that this case is nonjusticiable because it “requires a political, not a judicial, judgment.” The government has it backwards. Resolving the issue in this case would require us to decide not whether the air campaign was wise – a “policy choice [ ] and value determination [ ] constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch,” Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986) – but whether the President possessed legal authority to conduct the military operation. Did the President exceed his constitutional authority as Commander in Chief? Did he intrude on Congress’s power to declare war? Did he violate the War Powers Resolution? Presenting purely legal issues, these questions call on us to perform one of the most important functions of Article III courts: determining the proper constitutional allocation of power among the branches of government. Although our answer could well have political implications, “the presence of constitutional issues with significant political overtones does not automatically invoke the political question doctrine. Resolution of litigation challenging the constitutional authority of one of the three branches cannot be evaded by courts because the issues have political implications….”

The Government’s final argument – that entertaining a war powers challenge risks the government speaking with “multifarious voices” on a delicate issue of foreign policy – fails for similar reasons. Because courts are the final arbiters of the constitutionality of the President’s actions, “there is no possibility of ‘multifarious pronouncements’ on this question.” Chadha, 462 U.S. at 942, 103 S.Ct. 2764. Any short-term confusion that judicial action might instill in the mind of an authoritarian enemy, or even an ally, is but a small price to pay for preserving the constitutional separation of powers and protecting the bedrock constitutional principle that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch), 137, 177, 2 L.Ed. 60 (1803).

What remains uncertain about Justice Tatel’s concurrence regards his belief that the courts can decide the merits without dismissing under the political question doctrine.  While he believes, like Justice Silberman, that legislators lack standing because there is a political process available, he does not indicate who he thinks would have standing – who presumably must be someone without an available political remedy.   Doesn’t everybody get to vote for, and voice their preferences to, their legislators?

Even if Kucinich can make its way into the Supreme Court, due to the sensitivity of the issue and the fact that legislative remedies are available, it is easy to see how the issues at stake might be punted back to the legislature for further handling.  This, of course, raises the question, “Even if Congress contends it may demand the President to comply with the War Powers Resolution, why has it not taken legislative action to remedy this problem?”  Proper legislative action would avoid all the delay and confusion over the standing issue.

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