Petition for Writ of Certiorari — Campbell v. Clinton
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i\) FILED
991 848 MAY 1 8 2000
ae aa eee a SR
No. 99-
IN THE
Supreme Court of the United States
TOM CAMPBELL,
Member, U.S. House of Representatives, et al.,
Petitioners,
v.
WILLIAM JEFFERSON CLINTON,
President of the United States,
Respondent.
On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS,
DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
JAMES KLIMASKI JULES LOBEL
KLIMASKI & MILLER, P.C. Counsel of Record
1899 L Street, N.W. MICHAEL RATNER
Suite 1250 FRANKLIN SIEGEL
Washington, DC 20036 WILLIAM GOODMAN
(202) 296-5600 JENNIFER GREEN
CENTER FOR CONSTITUTIONAL RIGHTS
H. Lee HALTERMAN 666 Broadway, Seventh Floor
405 14" Street New York, NY 10012-2317
Suite 907 (412) 648-1375
Oakland, CA 94612 (212) 614-6464
(510) 663-0936
JoEL E. STARR
2442 Rayburn House
Office Building
Washington, DC 20515
(202) 225-2631
Counsel for Petitioners
i
QUESTIONS PRESENTED
i Whether Members of Congress Can Ever Have
Standing to Challenge Executive Nullification of Their
Votes.
2. Whether the War Powers Resolution Limitation of
Executive Authority to Engage U.S. Armed Forces in
Hostilities Without Congressional Approval For More Than
60 Days is Constitutional.
3. Whether the President Can Constitutionally Initiate
a Substantial and Sustained Military Operation Using U.S.
Troops Against a Foreign Country Without First Obtaining
the Authorization of Congress.
4. Whether the Prior Two Questions Raise Non-
Justiciable Political Questions.
5. Whether the Dispute Presented Here is Capable of
Repetition Yet Will Typically Evade Review.
il
PARTIES TO THE PROCEEDING
Petitioners are 31 Members of the U.S. House of
Representatives, both Republicans and Democrats:
Congressman Tom Campbell
Congressman Dennis Kucinich
Congressman Richard Baker
Congressman Bob Barr
Congressman Roscoe Bartlett
Congressman Dan Burton
Congressman Chris Cannon
Congressman John Cooksey
Congressman Phillip Crane
Congresswoman Pat Danner
Congressman John Doolittle
Congressman John Duncan
Congressman Terry Everett
Congressman Greg Ganske
Congressman Rick Hill
Congressman Van Hilleary
Congressman Walter Jones
Congresswoman Marcy Kaptur
Congressman Donald Manzullo
Congressman Jack Metcalf
Congressman Charlie Norwood
Congressman Ron Paul
Congressman Tom Petri
Congressman Dana Rohrabacher
Congressman Marshall Sanford
Congressman Joe Scarborough
Congressman Bob Schaffer
Congressman James Sensenbrenner
SRO ARE D6 RRR se Ohio = UN Sirs SI ace SAM a
ill
Congressman Pete Stark
Congressman Thomas Tancredo
Congressman Curt Weldon
Respondent is the President of the United States, William
Jefferson Clinton.
iv
TABLE OF CONTENTS
Page
See I ee eee Vo eas cw ee so i
Pestses 0 Che PIOGOOGING <n icc ccc beacuse ll
We GN oe hs ee Fe a sk Le IV
FOO OF Cee AMIE onc ccc icdecs vi
Dane OF FI ica ES a ik ee hs asic ee aiees Xli
CI bio ace i area eng a l
Statement Of FUPIGICNOR nw occ sea seen ces l
Constitutional and Statutory Provisions Involved . l
imtaenemt OF UNG CIGD ok kicks cece wen deine cies 2
A. The U.S. Military Action Against Yugoslavia
ip mated a bate becca akan aan Ge Wee 2
DB. COMI PAGED. (in 5 occ she ok ss 3
C.F kn bo hk vn ce bec 4
Reasons for Granting the Writ ................. 8
I. The Court Of Appeals Decision Is In Conflict
With Raines v. Byrd And With The Circuit’s
Decision In Chenoweth v. Clinton And Raises
Contents
Page
Important Questions Of Whether Members
Of Congress Ever Have Standing To Assert
Institutional Injuries .........cscceceees 8
II. The Merits Of This Case Raise Important
Questions Of Constitutional Law That This
Court Ought To Decide Now ............ 13
III. The Court Of Appeals Concurrences Raise
Important Issues Of Constitutional Law And
Conflict With The Decisions Of This And
Pile CR i io a has ee 21
a eR rey or ery 21
SP Ca oss bee ada nns 25
Ca 8 ee a oe a keke Ee eS 26
vi
TABLE OF CITED AUTHORITIES
Page
Cases:
Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990) ...
(crab vende kobe CRN. bead eee 14, 19, 25
Bender v. Williamsport Area School, 475 U.S. 534
CSSD hic.b00s Ss aceednsseeass eee 10
Berk v. Laird, 429 F.2d 302 (2d Cir. 1970) ....... 25
Burlington Northern Railroad Co. v. Brotherhood
of Maintenance of Way Employees, 481 U.S. 429
CRORES 0 6000 Knseieaysesaueeww ee pees eee 22
Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999)
os caw 4b Chane ee eed ee eee eee 6, 8, 12
Coleman v. Miller, 307 U.S. 433 (1939) .........
ase heen ee eee cesand ae he Dees ee
Conyers v. Reagan, 765 F.2d 1124 (D.C. Cir. 1985)
Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982),
aff'd, 720 F.2d 1355 (D.C. Cir. 1983),
cert. denied, 467 U.S. 1251 (1984) ...........
vil
Cited Authorities
Page
Doe v. Sullivan, 938 F.2d 1370 (D.C. Cir. 1991)
SEP re Pee eee oe is Pee ye POT Poy 20, 22, 24
Globe Newspaper Company v. Superior Court for
the County of Norfolk, 457 U.S. 596 (1982) .... 22
Goldwater v. Carter, 444 U.S. 997 (1979) Leneens 18
Hinckley v. United States, 163 F.3d 647 (D.C. Cir. ‘
oo IRE ear eee Prem pa wer araten ry ame wea 22, 23
Honig v. Doe, 484 U.S. 305 (1988) ............. 23, 24
In re Reporters Committee for Freedom of the Press,
ee R Bhs oo ee, || ee or rrr 22, 23
INS v. Chadha, 462 U.S. 919 (1983) ......... ree
Japan Whaling Assn. v. American Cetacean Soc.,
i, gtk Re S| Pras ore 26
Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974)
Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987),
aff'd, No. 87-5426 (D.C. Cir. 1988) ..........
Vili
Cited Authorities
Page
Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973) .. 25
Myers v. United States, 272 U.S. 52 (1927) ...... 16
Orlando v. Laird, 443 F.2d 1039, cert. denied,
oo 2 RR esrane rir eer pees 25
Press Enterprise Co. v. Superior Court, 478 U.S. 1
Benen DEAE Malis pri ooatge Ok Ung go ear rawr et ae Ba pee 22
Prize Cases, 67 U.S. (2 Black 635 (1863)) ....... 16
Raines v. Byrd, 521 U.S. 811 (1997) ........... passim
Sanchez-Espinoza v. Reagan, 568 F. Supp. 596,
aff'd, 770 F.2d 202 (D.C. Cir. 1985) ....... 14,17, 19
Spencer v. Kemna, 523 U.S. 1 (1998) ........... 23
Super Tire Engineering Co. v. McCorkle, 416 U.S.
SEP Gere x oaks Sa veces f cheese ade 23
United States v. Lopez, 514 U.S. 549 (1995) ..... 16
United States Parole Commission v. Geraghty,
pk ae tL er ner erp u re 24
Washington Post v. Robinson, 935 F.2d 282
A Re Pe a EEE Oa ro nee eee aa, 22
ix
Cited Authorities
Page
Statutes:
PM REE 00 555 WR hi xk koa ]
er SPs RE ir ond oe 4 ee °
RP ae 9 0s eh cea +
Be as OE es od nce hee ei +
yg ERS a | eae Ie ee 4
Pe is I so i oy a ok haces 4
Ba Se ee ee re eee 1,4
| WP Se NEE is nc 6 sk kh Cow ws Fi eax. 3,8
PE OE i da 0 i aw ks hee backs 3
SS te eo eee eee reeeyereeen 3
United States Constitution:
ET i ra oa ok ea hee hk da wake 18
Article I, Section 8, Clause 11 ................. l
Cited Authorities
Other Authorities:
1999 Emergency Supplemental Appropriation Act,
Pub. LOW. (06-31, ELST. SF 6 vcvcica een es
Departments of Commerce, Justice and State, The
Judiciary Related Agencies Appropriations for
Fiscal Year 1985 Before Subcomm. of the
Committee of Appropriations, 98th Cong.,
din NE, TO FACTO is 6A a ds C0 ie eas
John Hart Ely, War & Responsibility 56-57 (1993)
Foreign Relations and National Security Law
591-598 (Thomas M. Franck & Michael J.
CSO OUR. DE OG. TOPS) on ccc ceca eeecsanss
Sara Fritz, Pressure Grows for Overhaul of War
Powers Act, L.A. Times, Oct. 26, 1987 ........
Bernard Gwertzman, War Powers Test By Supreme
Court Weighed in Senate, N.Y. TIMES, Mar. 29,
DR ar ns a eRe R a he a
H. Con. Res. 82, 106th Cong. (1999) ...........
Hearing on Kosovo, Senate Armed Services Comm..,
106th Cong., April 5, 1999, 1999 WL 221637 ..
Page
16
19
14
17
2
xi
Cited Authorities
H.J. Res. 44, 106th Cong. (1999) ...............
House Report No. 93-287, reprinted in [1973] U.S.
Code Cong. & Ad. News 2346 ...............
Letter to Congressional Leaders Reporting on Airstrikes
Against Serbian Targets in the Federal Republic of
Yugoslavia (Serbia and Montenegro), 35 Weekly
Comp. Pres. Doc. 528 (March 26, 1999) .......
President’s Message to the House of Representatives
Returning H.J. Res. 542 Without His Approval.
RI ce ea ee ea eh ea ek.
President’s: Remarks Announcing Airstrikes, |
35 Weekly Comp. Pres. Doc. 513 (March 24,
EE th heads cede wok ae Ae Race ees
William H. Rehnquist, A// the Laws But One 221
So ERC Pre rr On ree ee ee eee
Statement by William H. Rehnquist, Assistant
Attorney General, Office of Legal Counsel, On
the President’s Constitutional Authority to Order
the Attack on the Cambodian Sanctuaries, quoted
in Report of the Senate Foreign Relations
Committee on the War Powers Act, S. Rep.
No. 220, 93rd Cong., Ist Sess. (1973) .........
S. Con. Res. 21, 106th Cong. :(1999) ............
Laurence H. Tribe, Justice Stewart: A Tale of Two
Portraits, 95 Yale L.J. 1328 (1986) ..........
20
xil
~ TABLE OF APPENDICES
Page
Appendix A — Opinion Of The United States Court
Of Appeals For The District Of Columbia Circuit
Dated And Decided February 18, 2000 ........ la
Appendix B — Opinion Of The United States
District Court For The District Of Columbia Dated
BE is EY io a rade Kae knoe ec ee ees 55a
Appendix C — Constitutional And Statutory
so Er rrr rer er nro 80a
1]
Congressman Tom Campbell and 30 petitioners, who are
also Members of the U.S. House of Representatives and
parties to the action below, respectfully petition for a writ of
certiorari to review the judgment and opinion of the United
States Court of Appeals for the District of Columbia in this
case.
‘OPINIONS BELOW
The District of Columbia Circuit of the Court of Appeals
affirmed the judgment of the United States District Court
for the District of Columbia granting defendant’s motion to
dismiss. The District of Columbia Circuit’s opinion
(App. A) is reported at Campbell v. Clinton, 203 F.3d 19
(D.C. Cir. 2000). The district court opinion (App. B) is
reported at Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C.
1999).
STATEMENT OF JURISDICTION
Petitioners invoke the jurisdiction of this Court to review
the judgment of the court of appeals under 28 U.S.C.
§ 1254(1).
The opinion of the court of appeals from which
petitioners seek review was filed on February 18, 2000. This
petition for a writ of certiorari is timely filed.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The text of Article I, Section 8, Clause 11, the War Power
Clause of the United States Constitution, is set forth in the
Appendix. The text of the War Powers Resolution, 50 U.S.C.
§ 1541, et seq., is set forth in the Appendix.
2
STATEMENT OF THE CASE
A. The U.S. Military Action Against Yugoslavia
The facts of this case are undisputed. On March 24, 1999,
President Clinton announced that U.S. Armed Forces, along
with military forces from the North Atlantic Treaty
Organization nations (hereinafter “NATO”), had begun air
strikes against Serbian military targets in the former
Yugoslavia.' On March 26, the President submitted a report
to the Speaker of the House of Representatives and the
President pro tempore of the Senate stating that “... on
March 24 U.S. military forces . . . began a series of air strikes
in the Federal Republic of Yugoslavia.”
Thereafter, NATO engaged in daily air operations against
Serb targets in Kosovo and Serbia, involving more than 800
U.S. airplanes flying more than 20,000 sorties and causing
thousands of enemy casualties.* On April 5, 1999, Secretary
of Defense William Cohen told the Senate Armed Services
Committee Hearing on Kosovo that: “We’re certainly
engaged in hostilities, we’re engaged in combat.”
1. President’s Remarks Announcing Airstrikes, 35 Weekly
Comp. Pres. Doc. 513 (March 24, 1999).
2. Letter to Congressional Leaders Reporting on Airstrikes
Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia
and Montenegro), 35 Weekly Comp. Pres. Doc. 528 (March 26,
1999).
3. Campbell v. Clinton, 203 F.3d 19, 40 (D.C. Cir. 2000) (Tatel,
J., concurring).
4. Hearing on Kosovo, Senate Armed Services Comm., 106th
Cong., April 5, 1999, 1999 WL 221637 (testimony of William Cohen,
Secretary of Defense).
3
As of May 25, the United States Armed Forces had been
engaged in hostilities for 60 days after President Clinton
submitted his March 26 report. The War Powers Resolution
requires that the President withdraw United States Armed
Forces from hostilities within 60 days after the filing of the
report unless Congress has declared war or specifically
authorized such use of United States Armed Forces. 50 U.S.C.
§ 1544(b). The House of Representatives had on April 28th
defeated a declaration of war and by a tie vote of 213 to 213
defeated the specific authorization required by the
Resolution. Nonetheless, the President continued those
hostilities until June 10, when the United States and its NATO
allies suspended the air attacks against Yugoslavia after the
Yugoslav government agreed to withdraw its armed forces
from Kosovo. On June 20, NATO and the United States
officially terminated the air war against Yugoslavia.
B. Congressional Action
Congress acted upon several pieces of legislation in
connection with the Kosovo conflict. Pursuant to the priority
procedures of the War Powers Resolution, 50 U.S.C. §§ 1545-
46, the House of Representatives expedited consideration of
resolutions to declare war, H.J. Res. 44, and to withdraw
troops, H. Con. Res. 82. The Senate passed a resolution
authorizing the President to conduct military air operations
and missile strikes in cooperation with NATO against the
Federal Republic of Yugoslavia on March 23, 1999, but the
House of Representatives rejected that authorization by a
213-213 tie vote on April 28, 1999.5 On April 28, the House
also defeated a measure declaring a state of war between the
United States and the Federal Republic of Yugoslavia,® and
a measure directing the President to remove U.S. Armed
5. S. Con. Res. 21, 106th Cong. (1999).
6. H.J. Res. 44, 106th Cong. (1999).
4
Forces from operations against the Federal Republic of
Yugoslavia.’ Both Houses of Congress also subsequently
agreed to an emergency supplemental appropriation.®
C. Decisions Below
Petitioners filed this action seeking a declaration that
President Clinton violated the War Powers Clause of the
Constitution and the War Powers Resolution, 50 U.S.C.
§ 1541, et seq. by engaging United States Armed Forces in
an offensive military attack against the Federal Republic of
Yugoslavia without obtaining a declaration of war or other
explicit authorization from Congress. Federal jurisdiction in
the district court was based on 28 U.S.C. §§ 1331, 1361,
1651, 2201-2202.
The District Court ruled that petitioners did not have
standing to maintain this action. The Court recognized that
the question this case presented was whether petitioners’
votes in refusing to authorize the U.S. military action against
Yugoslavia had been “nullified” by the President as that term
was used in Coleman v. Miller, 307 U.S. 433 (1939) and
Raines v. Byrd, 521 U.S. 811 (1997). District Judge Paul L.
Friedman held that “the circumstances of this case obviously
are more similar to those of Coleman than were the
circumstances in Raines.” 52 F. Supp. 2d 34 at 42.
Nevertheless, the Court denied petitioners standing because
it believed that Congress sent conflicting messages in its
votes taken on April 28, 1999. While the House of
Representatives on that day defeated the measures declaring
war against the Federal Republic of Yugoslavia and providing
the President with authorization to conduct air strikes, it also
7. H. Con. Res. 82, 106th Cong. (1999).
8. 1999 Emergency Supplemental Saini dena Act, Pub. Law.
106-31, 113 Stat. 57.
5
defeated a resolution that would have directed the President
to remove United States Armed Forces from their positions
in connection with the present operation against the Federal
Republic of Yugoslavia. The Court recognized that neither
the defeat of the resolution to remove the troops, nor the
subsequent passage of a supplemental appropriations bill
constituted authorization within the meaning of the War
Powers Resolution, but held that the congressional action
on those measures defeated petitioners’ legislative standing.’
The Court of Appeals affirmed the district’ court. No
Circuit Judge, however, adopted the district court’s reasoning.
The majority denied petitioners’ standing based primarily
on its conclusion that members of Congress “continued, after
the votes, to enjoy ample legislative power to have stopped
prosecution of the ‘war.’ ” 203 F.3d 19 at 23. The majority
believed that this Court viewed Coleman as “an unusual
Situation” in which the Kansas Senate was completely
powerless to do anything to reverse the governor’s action in
deeming the constitutional amendment ratified. Jd. at 22.
Where Congress has political remedies available to it to
remedy a President’s nullification of legislators’ votes, the
majority would deny legislative standing. It read this Court’s
_ response to members of Congress who sought standing in
Raines to be “if at first you don’t succeed, try and try again”;
id. at 24, meaning that if a vote denying the President
authority is treated as a nullity, then Congress can “try again”
and cut off funds, and if that fails then Congress can “try
again” and impeach the President.!° Since Congress can
9. 52 F. Supp. at 43-44. Petitioners believe that the District
Court erred in applying these various votes to its standing analysis.
While those votes may have been relevant in determining the nature
of the relief a court should order, they do not diminish the discrete
injury caused by the President’s actions nullifying petitioners’ votes.
10. This is exactly the requirement Congress rejected by
enacting the War Powers Resolution.
6
always cut off funds for a war or impeach a President who
disregards congressional authority, the court concluded that
members of Congress have no standing to challenge alleged
violations of the War Powers Resolution or the War Powers
Clause of the Constitution.
Judge Randolph concurred in the decision, but disagreed
with the majority’s analysis of standing. He argued that “the
majority’s decision is tantamount to a decision abolishing
legislative standing.” Jd. at 32. That is because “as long as
Congress and the Constitution exist, Members will always
be able to vote for legislation.”'' Jd. Judge Randolph believed
that the majority had “confused the right to vote in the future
with the nullification of a vote in the past, a distinction Raines
clearly made.” Jd.
Judge Randolph viewed the majority’s decision as
conflicting with the Court’s decision in Raines, arguing that:
“if we are going to get rid of legislative standing altogether,
we ought to do so openly and not under the cover of an
interpretation, or rather misinterpretation, of a phrase in
Raines.” Id. Judge Randolph also believed that the majority’s
opinion conflicted with the Circuit’s recent decision in
Chenoweth vy. Clinton, 181 F.3d 112 (D.C. Cir. 1999).'?
11. Similarly District Court Judge Friedman also rejected the
President’s argument that was adopted by the Court of Appeals majority:
“The mere availability of a legislative alternative is not sufficient to
defeat standing; if it were, a legislator would never have standing since
Congress always has the option of impeaching and removing the
President.” 52 F. Supp. at 45 n.11 (emphasis in original).
12. Judge Randolph viewed Chenoweth as concluding that the
pocket veto case, Kennedy v. Sampson, 511 F.2d 430 (1974), was “still
good law.” Jd. at 32. But since Congress could always respond to a
pocket veto by passing the law again, or impeaching the President,
Randolph argued that Chenoweth and the majority opinion were in
conflict.
7
Judge Randolph held that the petitioners had no standing
to assert their constitutional claim because their vote against
declaring war did in fact deprive the President of powers he
would have under various statutes in time of declared war,
and therefore was not “completely nullified.” He did not,
however, decide whether petitioners had standing to assert
their War Powers Resolution claim. He held that claim, as
well as the constitutional claim, to be moot. Judge Randolph
concluded that petitioners had not met “the evading review
yet capable of repetition exception” to mootness because:
(a) Executive initiated military action is not inherently so
short in duration as to avoid review; and (b) such military
actions are likely to be over in less than 60 days, so that
petitioners’ War Powers Resolution claims did not meet the
capable of repetition prong of the test.
Judge Silberman and Judge Tatel also wrote separate
concurring decisions in which they disagreed over whether
the substantive issues involved in this case could ever be
justiciable. Judge Silberman argued that petitioners’ claims
were not justiciable because of the lack of judicially
discoverable and manageable standards for addressing them,
and because the War Powers Clause claim implicates the
political question doctrine. Judge Tatel disagreed, arguing
that the judiciary was fully capable of making the
determination of what constitutes “war” for purposes of the
War Powers Clause, and what constitutes hostilities under
the War Powers Resolution. Indeed, Judge Tatel wrote that
the “undisputed facts of this case” are “compelling with
respect” to both the War Powers Resolution and the
“plaintiffs’ constitutional claim.” 203 F.3d at 40.
8
REASONS FOR GRANTING THE WRIT
I.
THE COURT OF APPEALS DECISION IS IN
CONFLICT WITH RAINES v. BYRD AND WITH THE
CIRCUIT’S DECISION IN CHENOWETH v. CLINTON
AND RAISES IMPORTANT QUESTIONS OF
WHETHER MEMBERS OF CONGRESS EVER HAVE
STANDING TO ASSERT INSTITUTIONAL INJURIES
The Court of Appeals majority held that members of
Congress do not have standing to challenge a President’s
nullification of a congressional vote when those legislators
have political remedies available to them. Judge Randolph’s
concurrence correctly observed that this holding is
“tantamount to a decision abolishing legislative standing”
and was in conflict with this Court’s decision in Raines v.
Byrd.
Congress enacted the War Powers Resolution in 1973,
over President Nixon’s veto, in order to enforce its assertion
of constitutional authority that U.S. Armed Forces be
committed to (or maintained in) hostilities only with the
approval of Congress. The critical legal mechanism chosen
by Congress to enforce its constitutional powers was the
provision of the War Powers Resolution requiring the
President to withdraw United States armed forces from
hostilities within 60 days of filing the report required by the
Statute, unless Congress affirmatively authorized the use of
such forces.'® 50 U.S.C. § 1544(b). In this case, Congress
13. President Nixon cited this as one of the bases for his veto
of the resolution. “One of its provisions would automatically cut off
certain [claimed presidential] authorities after sixty days.” The
President’s Message to the House of Representatives Returning H.J.
Res. 542 Without His Approval. October 24, 1973; appended to
Judge Randolph’s concurring opinion in Campbell v. Clinton, at 35.
ree pte eee ae ees
9
not only never provided authority, but explicitly voted to deny
the affirmative authority mandated by the War Powers
Resolution. Yet the President continued the war beyond the
statutory cut off.
On April 28, 1999, the House of Representatives, acting
pursuant to the priority procedures set forth in the War Powers
Resolution, voted 427 to 2 against declaring war, and by 213
to 213 against authorizing the President to conduct military
air operations and missile strikes against the Federal Republic
of Yugoslavia. 203 F.3d at 20. Those votes were sufficient to
defeat the legislative enactment of authorization which the
Constitution and War Powers Resolution required for the
President to continue the war against Yugoslavia.
Where Congress: (a) enacts a statute defining the
boundary between Congress’ and the Executive’s
constitutional authority; (b) sets forth a specific procedure
to enforce its constitutional authority that requires Congress’
affirmative consent to continue hostilities; and
(c) subsequently employs that procedure to defeat the specific
Statutory authorization required; those legislators who
successfully voted down a declaration of war (H.J. Res. 44)
and the statutory authorization to allow the air war to continue
(S. Con. Res. 21) suffer a concrete and particularized injury
sufficient to maintain standing to sue when the Executive
nonetheless ignores their action. That is the import of this
Court’s decision in Coleman v. Miller, 307 U.S. 433 (1939),
which the Court distinguished and did not overrule in Raines
v. Byrd, 521 U.S. 811, 823-824 (1997). Coleman stands [at
most] for the “proposition that 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
10
votes have been completely nullified.” 521 U.S. at 823.4
That is precisely what occurred in the instant case.
In Raines, this Court was unwilling to recognize an
institutional injury sufficient to confer standing suffered by
legislators whose votes had been given “full effect” in the
legislative process but had “simply lost” the vote. Jd. at 824.
In that case, the plaintiffs injury was really caused by the
actions of their own colleagues, and not by the President as
is the case here. Raines, at 829-830 n.11. Here, by contrast,
petitioners won the relevant congressional votes taken
pursuant to the War Powers Resolution’s procedures and the
Constitution on whether to authorize or declare war against
Yugoslavia. Moreover, petitioners do not complain merely
that the President has failed to comply with the relevant law,
in this case the War Powers Resolution. Rather, they claim
that the President treated a specific vote that each of them
took pursuant to the War Powers Resolution as a legal nullity,
as having no legal effect, despite their having prevailed in
the legislative process. This is the opposite of the position
of the plaintiffs in Raines. In the language used by this Court
in Raines, the President “completely nullified” their votes.
14. The Raines court also cited Bender v. Williamsport Area
School, 475 U.S. 534, 544-545 n.7 (1986), to support the Coleman
proposition. /d. at 823 n.6. In Bender the court hypothesized that a
school board member would have standing to sue if state law
authorized a school board to take action only by unanimous consent,
if a school board member voted against a particular action, and if
the board nonetheless took the action. /d. That hypothetical is
analogous to this case: the Constitution and War Powers Resolution
require legislative authorization for war, and the legislators whose
votes were sufficient to defeat such authorization sue because the
President has nonetheless continued the war, thus completely
nullifying their vote. Petitioners therefore have standing to sue on
both their constitutional and War Powers Resolution claims.
il
The Court of Appeals majority nonetheless held that
petitioners did not have standing under the Coleman exception
articulated in Raines because “they continued, after the votes,
to enjoy ample legislative power to have stopped prosecution
of the ‘war.’” The majority acknowledged that it was ‘“‘not
readily apparent what the Supreme Court meant” by the word
nullified. 203 F.3d at 22. It held that legislators’ votes are not
completely nullified where Congress has political remedies —
such as cutting off funding for a war or impeaching the President
— available to it to remedy a President’s nullification of a
congressional vote. The majority erroneously read Raines as
telling members of Congress, “if at first you don’t succeed, try
and try again”; meaning that if a vote denying the President
authority to wage war is treated as a nullity, then Congress can
“try again” and cut off funds, and if that fails then Congress
can “try again” and impeach the President. This is to confuse
possibility with requirement and to turn the Raines test on its
head. If Raines stands for the proposition that having failed in
the legislative arena, a legislator must turn to that arena for relief,
the corollary must be that if one has prevailed, the courts must
vindicate the validity of the members’ votes, as the Court did in
Coleman and refused to overrule in Raines.
Judge Randolph correctly viewed the majority’s decision
as conflicting with this Court’s decision in Raines. Raines
explicitly left open the possibility of a narrow Coleman
exception where Congress defeats a specific legislative action
which the President nullifies, an exception the circuit court
now closes. Judge Randolph argued that “the majority’s
decision is tantamount to a decision abolishing legislative
Standing,” an outcome also articulated by District Judge
Friedman.'* 203 F.3d at 32. That is because “as long as
15. “The mere availability of a legislative alternative is not
sufficient to defeat standing; if it were, a legislator would never have
standing since Congress always has the option of impeaching and
removing the President.” 52 F. Supp. at 45.
12
Congress and the Constitution exist, Members will always
be able to vote for legislation.” Jd. Judge Randolph believed
that the majority had “confused the right to vote in the future
with the nullification of a vote in the past, a distinction Raines
clearly made.” Jd.
Judge Randolph also accurately viewed the majority’s
opinion as conflicting with the Circuit’s recent decision in
Chenoweth v. Clinton, 181 F.3d 112 (D.C. Cir. 1999). That
is because the Chenoweth Court clearly treated the pocket
veto case, Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir.
1974), as consistent with the narrow Coleman exception left
open in Raines. But since Congress could always respond to
a pocket veto by passing the law again, or impeaching the
President, Randolph argued that Chenoweth and the majority
were in conflict.
This Court should resolve the conflict between the
majority below and this Court’s opinion in Raines v. Byrd
and the Circuit’s decision in Chenoweth v. Clinton. The issue
of whether members of Congress ever have standing to assert
institutional injuries is an important issue explicitly left
unresolved by this Court in Raines. Petitioners in this case
fall within the Coleman exception articulated by this Court
in Raines,'® and this case, therefore, requires this Court to
16. While the majority relied centrally on its view that
nullification could not occur where the legislators had political
remedies available, it also held that this case was different from
Coleman because “the President here did not claim to be acting
pursuant to the defeated declaration of war or a statutory
authorization, but instead ‘pursuant to [his] constitutional
authority’. . .” Jd. at 22. This distinction is illogical, since it accords
significance to the reasons the Executive provides for nullifying a
congressional vote, and not the fact of that nullification. There can
be no argument that the President treated the April 28 tie vote as a
legal nullity. It ought to make no difference whether he stated that
(Cont'd)
PAG i cl cic
13
decide whether that exception applies to injured federal
legislators in a context where a private party is unlikely to
sue. The majority’s determination that the Coleman exception
does not apply whenever legislators have potential political
remedies to rectify an executive nullification contradicts this
Court’s rationale in Raines v. Byrd and should be reviewed.
Il.
THE MERITS OF THIS CASE RAISE IMPORTANT
QUESTIONS OF CONSTITUTIONAL LAW THAT
THIS COURT OUGHT TO DECIDE NOW
At the core of this case are two purely legal questions of
the Constitution’s allocation of power between the political
branches that can only be resolved by this Court. The first is
whether the War Powers Resolution limitation of Executive
authority to deploy U.S. troops in combat without congressional
approval for more than 60 days is constitutional. The second is
whether the President can initiate a substantial and sustained
military operation using U.S. troops against a foreign country
without first obtaining the authorization of Congress.
In the wake of the constitutional and political trauma
caused by the Vietnam War, Congress enacted the War Powers
Resolution over a Presidential veto in order to “reaffirm the
(Cont'd)
he believed a tie vote constituted authorization or whether he stated
that he believed he had the constitutional authority to wage war despite
Congress’ vote. Indeed, legislative standing is more compelling in the
later case than the former, for the Court is asked to resolve a
constitutional confrontation and not merely a question about the
significance of a tie vote. The Coleman legislators should still have had
standing had the governor in that case asserted that he was acting under
his constitutional authority to ratify amendments on his own, despite
the legislators’ tie vote. The weakness of this attempted distinction of
Coleman led the majority to rely on the availability of political remedies
to distinguish this case and Coleman.
constitutional given authority of Congress to declare war.”
House Report No. 93-287, reprinted in [1973] U.S. Code
Cong. & Ad. News 2346. Nevertheless every President since
President Nixon has refused to comply with the War Powers
Resolution’s strictures,'’ and this Court and lower federal
courts have declined to adjudicate various challenges to
Executive action allegedly violating the statute."*
Persistent Executive disregard of a statute enacted by
Congress to give effect to the Constitution’s allocation of
governmental authority strikes at the heart of a constitutional
democracy. The Executive’s refusal to follow the law
undermines the rule of law. While our Constitution
recognizes and accepts the inevitable friction produced by
its separation of powers, persistent executive law breaking
cannot be a healthy by-product of separation of powers. Nor
is it desirable for constitutional law or United States foreign
policy to continue the pattern of Executive military action
abroad followed inevitably by congressional claims of
constitutional usurpation and statutory violation.'®
17. President Nixon believed the War Powers Resolution to be
unconstitutional and vetoed the bill, a veto that Congress overrode.
Subsequent presidents have filed reports of military action “taking note”
of the War Powers Resolution or “consistent with” the Resolution, but
never pursuant to the Resolution. See reports reprinted in Foreign
Relations and National Security Law 591-598 (Thomas M. Franck &
Michael J. Glennon eds., 2d ed. 1993).
18. Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff'd,
720 F.2d 1355 (D.C. Cir. 1983) (per curiam), cert. denied, 467 U.S.
1251 (1984); Sanchez-Espinoza v. Reagan, 568 F. Supp. 596, aff'd,
770 F.2d 202 (D.C. Cir. 1985); Lowry v. Reagan, 676 F. Supp. 333
(D.D.C. 1987), aff'd, No. 87-5426 (D.C. Cir. 1988); Ange v. Bush, 752
F. Supp. 509 (D.D.C. 1990).
19. The solution to this problem is not impeachment, particularly
where the alleged violation is not the result of specific Executive
misconduct, but rather arises from a serious and sustained dispute
between the branches over their respective constitutional powers.
15
This lengthy and persistent struggle between the
branches over the constitutionality of the War Powers
Resolution has proven impervious to political resolution, in
somewhat the same manner as the constitutional
controversies over the President’s power to remove Executive
officials and the legislative veto could not be resolved
politically. Judicial resolution of the issue is the only method
to resolve this intractable dispute between the political
branches over their respective constitutional authorities
before it erupts again in the context of another constitutional
crisis of the order presented by the Vietnam War. Judicial
resolution could prevent the inevitable repetition of the
traumatic constitutional experience the country and the
government experienced during that war” — an experience
from which the Congress sought to protect the Nation by
enacting the War Powers Resolution. The cost of judicial
abstention now is likely to be paid by future generations.
The determination of whether a statute is constitutional
is quintessentially for the judiciary to make and ought not
be left to the political branches. As this Court stated in
INS v. Chadha, no policy underlying judicial abstention
“suggests that Congress or the Executive, or both acting in
concert and in compliance with Article I, can decide the
constitutionality of a statute; that is a decision for the courts.”
462 U.S. 919, 942 (1983). That the issue involves war powers
does not warrant complete judicial abstention, for as then
Assistant Attorney General William Rehnquist pointed out
30 years ago, the constitutional allocation of power in this
area “has been left to nearly two hundred years of
interpretation by each of the three coordinate branches of
20. This Court refused to grapple with the constitutional
implications of the Vietnam War, a refusal that Justice Stewart
believed constituted the court’s- greatest single failure during his
tenure as a justice. Laurence H. Tribe, Justice Stewart: A Tale of
Two Portraits, 95 Yale L.J. 1328, 1331 (1986).
16
the National Government ...”’?! (Emphasis added.) Thus,
throughout the 19th century, this Court and lower federal courts
decided issues of the proper boundary between Executive and
congressional powers over initiating and continuing warfare.
See, e.g., The Prize Cases, 67 U.S. (2 Black 635 (1863)).
This Court has attempted to define more precisely the
constitutional limits of the co-ordinate branches’ powers set by
federalism after many years of deferring to the political process,
United States v. Lopez, 514 U.S. 549 (1995); it is equally
important that the Court decide what limits exist to Executive
and congressional power imposed by the Constitution’s
separation of powers clauses pertaining to war.
In enacting the War Powers Resolution, Congress attempted
to clarify the line between Executive and congressional
authority. This case provides this Court with the best possible
case to undertake its role as one of the coordinate branches to
determine whether the line Congress has drawn is constitutional.
At some point, at some time, in some case, this Court must
decide that question: as the Court noted in Myers v. United States
it will “be inevitably presented.” 272 U.S. 52, 173 (1927).
Congressional leaders and Executive officials have in the
past explored mechanisms to obtain judicial resolution of the
persistent and protracted constitutional conflict over the War
Powers Resolution,” only to be stymied by the difficulty of
21. Statement by William H. Rehnquist, Assistant Attorney
General, Office of Legal Counsel, On the President’s Constitutional
Authority to Order the Attack on the Cambodian Sanctuaries, quoted
in Report of the Senate Foreign Relations Committee on the War
Powers Act, S. Rep. No. 220, 93rd Cong., Ist Sess. (1973) at p. 9.
22.. See Departments of Commerce, Justice and State, The
Judiciary Related Agencies Appropriations for Fiscal Year 1985
Before Subcomm. of the Committee of Appropriations, 98th Cong.,
2d Sess. 708-710 (1984) (colloquy between Senator Specter and
(Cont’d)
17
obtaining such review in a context that did not challenge a
specific military operation. This case presents a concrete case
and controversy for review by this Court in a context
particularly suited for a decision by this Court. Four reasons
make this case uniquely appropriate for judicial review.
First, this case starkly and clearly presents the question
of whether the War Powers Resolution’s 60 day limitation
on the President’s authority to use troops in combat without
obtaining congressional assent is constitutional. This case
is-shorn of the factual thickets and legal ambiguities that
have made courts reluctant to intervene in prior congressional
tests of the War Powers Resolution. Compare Crockett v.
Reagan, supra; Sanchez-Espinoza v. Reagan, supra; Lowry
v. Reagan, supra. The facts here are uncontested. The United
States and NATO air war against Yugoslavia that commenced
on March 24, 1999, constituted “hostilities” under any
conceivable definition of the word in Section 4(a) of the War
Powers Resolution. Executive officials such as the Secretary
of Defense stated that the United States Armed Forces were
engaged in hostilities against Yugoslavia. Under Section 5(b)
of the Resolution, President Clinton could not continue those
hostilities for more than 60 days without explicit
congressional approval. There can be no dispute that the
House of Representatives failed to approve such explicit
authorization as defined and required by the statute. Thus,
the President’s only possible defense to the merits of this
(Cont’d)
Secretary of State George P. Shultz on discussions between Senate
leadership and some top officials at the White House about a test
case which would go to the Supreme Court on constitutionality of
War Powers Resolution). See also Bernard Gwertzman, War Powers
Test By Supreme Court Weighed in Senate, N.Y. Times, Mar. 29, 1984,
at Al; Sara Fritz, Pressure Grows for Overhaul of War Powers Act,
L.A. Times, Oct. 26, 1987, at 1 (Senate Minority Leader Bob Dole
seeks Supreme Court test of the constitutionality of War Powers
Resolution).
18
action is that Section 5(b) of the War Powers Resolution is
an unconstitutional infringement on Executive authority. That
purely legal question is for this Court and not the political
branches to decide.”
Second, unlike prior cases in which Congress remained
silent in the face of an alleged violation of the War Powers
Resolution and Constitution, here Congress did affirmatively
invoke the War Powers Resolution and denied the President
authority required by that Act to continue the Yugoslav war.
Compare Crockett v. Reagan, supra, Lowry v. Reagan, supra.
The teachings of this Court’s decision in Raines v. Byrd, as
well as Justice Powell’s decision in Goldwater v. Carter, 444
U.S. 997 (1979) (Powell, J., concurring) are that the courts
should not decide claims brought by members of Congress
unless and until Congress itself takes action that the
Executive treats as a legal nullity. See also Dellums v. Bush,
752 F. Supp. 1141 (D.D.C. 1990). In the present case,
members of Congress invoked the War Powers Resolution
and took a series of votes pursuant to that statute. For
purposes of Section 5(b) of the War Powers Resolution, the
relevant votes Congress took were to defeat resolutions to
authorize the air war against Yugoslavia and to declare war
against Yugoslavia. Congress therefore acted and the
President disregarded that action. Petitioners won the relevant
votes in the political process, yet their votes were nonetheless
ignored by the President. This Court therefore ought to decide
whether Congress’ action had the legal significance that
petitioners assert, or whether the President was
constitutionally free to nullify those votes and disregard the
statutory and constitutional framework pursuant to which
they were undertaken.
23. Similarly, petitioners’ constitutional Article I, § 8 claim
presents a clear, defined legal issue.
19
Third, petitioners here are the most appropriate parties to
test this issue in court. For Justices Souter and Ginsburg, the
“certainty” of a private party being able to bring suit was a
“good reason to resolve doubts about standing against the
plaintiff invoking an official interest.” Raines v. Byrd, 512 U.S.
811, 835 (Souter & Ginsburg, J.J., concurring) (emphasis
added). Here, by contrast, there are powerful disincentives for
members of the armed forces to bring such a lawsuit: career
officers would risk sacrificing their careers, while enlisted
personnel would be challenging authority in ways that are
fundamentally inconsistent with the values and ethos instilled
by military training and discipline.“ John Hart Ely, War &
Responsibility 56-57 (1993). It is thus no accident that virtually
all of the challenges to executive action under the War Powers
Resolution have been brought by members of Congress, not by
private parties.”° While it is possible that a member of the armed
services might bring such an action in the future, it is neither
likely nor certain. Moreover, this Court’s standing doctrine ought
not create a condition that invites disruption within the military.
The most appropriate party to test the constitutionality of the
War Powers Resolution claim that the President has exceeded
his or her authority in the face of congressional action that
statutorily requires the President to cease military operations is
therefore a member of Congress who votes successfully against
authorizing a specific military action, and not soldiers who must
sue their Commander-in-Chief as they are ordered into battle.
24. As a practical matter, service personnel who might
challenge an illegal presidential war will be given the excruciating
choice of following what they believe to be an illegal order, perhaps
for months or years, or defying the order and facing court-martial,
in an effort to press their claim with the courts. Failure by either
count can lead to serious retribution or to imprisonment, facts which
will continue to deter private lawsuits by service members.
25. Crockett v. Reagan, supra; Sanchez-Espinoza v. Reagan,
supra, Lowry v. Reagan, supra; Campbell v. Clinton. The one
exception is Ange v. Bush, supra.
20
Finally, this is the ideal time to litigate this issue. The
hostilities against Yugoslavia have ended, although the Executive
practice that petitioners’ challenge is likely to continue. For this
Court to decide the constitutionality of the War Powers
Resolution in the context of an ongoing military crisis in which
a soldier sues his or her Commander-in-Chief, or Congress
challenges the President, would be, as then Judge Ginsburg
noted, “hardly a prime time for dispassionate adjudication.”
Doe v. Sullivan, 938 F.2d 1370, 1379 (D.C. Cir. 1991).
See also William H. Rehnquist, All the Laws But One 221 (1998)
(noting “the reluctance of courts to decide a case against the
government on an issue of national security during war’). As
the Court noted in Doe, the kind of issues raised here can be
considered “most calmly and effectively after the battle fire is
extinguished and before it is rekindled.” Jd.”
Moreover, this case is ripe for resolution in another sense.
This Court has given the political branches over a quarter century
to resolve the constitutional dispute that divides them. It may
have been appropriate for the Court to avoid deciding the
constitutionality of the War Powers Resolution fairly soon after
its enactment, so that Congress and the President could resolve
the constitutional dispute politically as the statute’s operational
contours became clearer. That political resolution has not
happened, and is unlikely to occur given the entrenched
institutional positions of each branch. Now is the time for this
Court to act. “It 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 (1803).
26. Indeed, this is analogous to the Congress’ requirement in
the War Powers Resolution of a specific authorization, and a statutory
disclaimer concerning appropriations and other measures as sources
of that authority. The Congress recognized what the courts have and
what the Framers feared: Once the nation is unconstitutionally called
to arms, it may feel compelled to persist despite the severity of the
misgivings that would have prevented such a conflict in the first
place had the constitutional order been preserved.
BC ee ee ee ee ee ee ee oe er ee ae
aS Se ee eee ee
21
III.
THE COURT OF APPEALS CONCURRENCES RAISE
IMPORTANT ISSUES OF CONSTITUTIONAL LAW
AND CONFLICT WITH THE DECISIONS OF THIS
AND PRIOR COURTS
1. Mootness
Judge Randolph decided that petitioners’ claims were
moot. All parties agree that the United States and its NATO
allies officially terminated the air campaign against
Yugoslavia on June 20, 1999. Petitioners claim, however, that
this case is not moot because: (a) the dispute between the
parties is “capable of repetition yet evading review”; and
(b) petitioners challenge an ongoing policy and practice of
the Executive Branch to initiate and continue offensive
military actions against foreign states without obtaining
congressional authorization.
Judge Randolph held that petitioners had not satisfied
the capable of repetition yet evading review test. He believed
that he was bound by Conyers v. Reagan, 765 F.2d 1124,
1128 (D.C. Cir. 1985) to decide that offensive wars initiated
without congressional approval are not “inherently” of short
duration, and that therefore petitioners’ claims will not evade
review. He also doubted that the capable of repetition prong
of the test was met with respect to petitioners’ War Powers
Resolution claims because “most military actions in the
future . . . will be over before the 60-day limit” contained in
the War Powers Resolution is reached. 203 F.3d at 34
(emphasis added). Those conclusions seem both mutually
inconsistent and at odds with both this Court and the Circuit’s
precedent. :
Wer emg
22
Judge Randolph, following Judge Tamm in Conyers v.
Reagan, apparently believed that inherently of short duration
means that the challenged activity has to be, by its very nature
always short in duration, such as election campaigns or
pregnancies. But the test articulated by this Court is whether
the actions complained of are “typically of short duration.”
Globe Newspaper Company v. Superior Court for the County
of Norfolk, 457 U.S. 596, 603 (1982) (emphasis added);
Burlington Northern Railroad Co. v. Brotherhood of
Maintenance of Way Employees, 481 U.S. 429, 436 n.4 (1987)
(“because such disputes typically are resolved quickly” it
evades review); Press Enterprise Co. v. Superior Court, 478
U.S. 1, 6 (1986) (“because criminal proceedings are typically
of short duration” the order will evade review). The Circuit
has also held, subsequent to Judge Tamm’s decision in
Conyers, that the “possibility that the issue presented in this
case will not always evade review” does not render a case
moot where the issue typically or often will evade review.
Washington Post v. Robinson, 935 F.2d 282, 287 (D.C. Cir.
1991). See also In re Reporters Committee for Freedom of
the Press, 773 F.2d 1325, 1329 (D.C. Cir. 1985) (issue evades
review when “the interval of time that typically elapses”
during the controversy is less than two years) (emphasis in
original). Doe v. Sullivan, 938 F.2d 1370, 1376 n.10
(D.C. Cir. 1991) (citing Washington Post). Hinckley v. United
States, 163 F.3d 647, 651 (D.C. Cir. 1999) (issue may evade
review even when no assurance that time constraints will
always preclude review) (emphasis in original).
In a variety of situations this Court and the Circuit have
applied the “evading review” exception even though the
action complained of could continue long enough to allow
for full appellate review. Thus, the Circuit found that the
time between the beginning of discovery and the completion
of trial in a civil case “is hard to measure,” and typically was
less than two years, although it is common knowledge that
23
many civil cases take considerably longer to complete. Reporters
Committee, supra at 1329. Similarly, the Circuit recognized that
a criminal investigation “might continue for a much longer time”
than a criminal proceeding but nonetheless held that it evaded
review because it “may often” evade review. Washington Post
at 287. This Court has applied the exception when an adolescent
student, improperly disciplined, “will often” be finished with
school by the time final appellate review would be available.
Honig v. Doe, 484 U.S. 305, 322-23 (1988) (emphasis added).
The Court has also found that economic strikes “are of
comparatively short duration,” although “[t]here are exceptions
of course.” Super Tire Engineering Co. v. McCorkle, 416 U.S.
115, 126 (1974). They evade review “[b]ecause the great
majority of economic strikes do not last long enough for
complete judicial review of the controversies they engendered.”
Id. (emphasis added).
More recently in Spencer v. Kemna, 523 U.S. 1 (1998),
Justice Scalia perhaps created some confusion about the
applicable test when he rejected the application of the capable
of repetition yet evading review doctrine because petitioner had
not shown “that the time between parole revocation and
expiration of sentence is always so short as to evade review.”
523 U.S. 1 at 18. Justice Scalia’s one paragraph rejection of the
capable of repetition exception did not purport to address the
question of whether a challenged action must typically, or rather
in every instance, be of short duration, and his use of the word
“always” contradicts his own earlier reliance (as a Circuit Judge)
on the more lenient standard of “typically” rather than always.
In re Reporters Committee, 773 F.2d at 1329.” That is the
important question this case raises.
27. After Spencer, the Circuit had occasion to re-visit the
“capable of repetition yet evading review” doctrine in Hinckley, and
used a standard of whether cases of a certain duration “ordinarily
evade review,” and specifically rejected an “always” standard.
163 F.3d at 651.
24
Judge Randolph agreed that contemporary U.S. military
actions are of relatively short duration and “most” are likely
to be over in 60 days. That finding renders Judge Randolph’s
opinion that petitioners’ claims do not evade review, at odds
with this Court’s decisions that would require merely that
such military action typically end quickly. Judge Randolph’s
mootness analysis thus raises the important question of
whether the “evading review” test requires the activity to
“always” be so short as to evade review or to “typically” be
of short duration. This Court should reaffirm its prior
decisions.
Similarly, Judge Randolph’s conclusion that petitioners’
War Powers Resolution claims do not meet the capable of
repetition prong of the test since “most” U.S. military actions
are likely to be less than 60 days, runs afoul of this Court’s
mootness decisions. In Honig v. Doe, 484 U.S. 305, 318-19
n.6 (1988) the Court noted that the reasonable expectation
requirement does not mean “demonstrably probable.” The
Court stated that the question was “whether the controversy
was capable of repetition and not, as the dissent seems to
insist, whether the claimant had demonstrated that a
recurrence of the dispute was more probable than not.” Jd.
(emphasis in original). See also Doe v. Sullivan, 938 F.2d
1370, 1378-79 (D.C. Cir. 1991) (question is whether “litigant
‘faces some likelihood of becoming involved in the same
controversy in the future’ ” (citing United States Parole
Commission v. Geraghty, 445 U.S. 388, 400 (1980)). Here,
there is clearly some likelihood that a President will again
order U.S. troops into hostilities in the next decade without
obtaining congressional approval, and that those hostilities
will last for more than 60 days.** This Court should decide
petitioners’ claims.
28. It is much less probable, however, that future hostilities
involving U.S. Armed Forces would last more than the two years
necessary to obtain full appellate review.
25
2. Political Question
Judges Silberman’s and Tatel’s concurrences with respect
to the justiciability of the issues raised by this case reflect
an ongoing division within the lower courts. Contrast
Dellums v. Bush, 752 F. Supp. 1141, 1145 (D.D.C. 1990)
with Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990). Judge
Silberman’s concurrence conflicts with the Second Circuit’s
position in Orlando v. Laird, 443 F.2d 1039, cert. denied,
440 U.S. 869 (1971) and Berk v. Laird, 429 F.2d 302 (2d
Cir. 1970) which held that the issue of whether the President
needed congressional authorization to wage the war in
Vietnam was a justiciable question. It is also at odds with
the D.C. Circuit’s position in Mitchell v. Laird, 488 F.2d 611,
614 (D.C. Cir. 1973) that saw no difficulty “in a court facing
up to the question as to whether because of the war’s duration
and magnitude the President is or was without power to
continue the war without congressional approval.” This Court
should resolve the disagreement between Judges Silberman
and Tatel as to whether the issues presented in this case are
justiciable.
Judge Silberman’s position that the constitutionality of
the War Powers Resolution can never be tested in Court is
particularly disturbing. He argued that the question of
whether the War Powers Resolution was triggered because
United States forces were engaged in hostilities with
Yugoslavia is a question unsuited to judicial resolution. That
conclusion ignores the undisputed facts that American forces
were Clearly involved in hostilities with Yugoslavia and that
Congress itself invoked the War Powers Resolution. Secretary
of Defense Cohen recognized that “We’re certainly engaged
in hostilities, we’re engaged in combat.” 203 F.3d at 40. Judge
Silberman’s conclusion is contrary to the opinions of other
courts that have considered War Powers Resolution claims
and have noted that courts could decide a case in which
26
American forces were clearly engaged in hostilities and thus
“the. constitutionality of the War Powers Resolution” was
“squarely presented.” Lowry v. Reagan, 676 F. Supp. 333,
340-41 (D.D.C. 1987); see also Crockett v. Reagan, 558
F. Supp. 893, 899 (D.D.C. 1982), aff’d, 720 F.2d 1355
(D.D.C. 1983). Judge Silberman’s concurrence is contrary
to the teachings of this Court that interpreting congressional
legislation and deciding the constitutionality of a statute are
tasks for the judiciary. Japan Whaling Assn. v. American
Cetacean Soc., 478 U.S. 221, 230 (1986); INS v. Chadha,
462 U.S. 919, 942-43 (1983).
CONCLUSION
For the reasons set forth above, the petition for a writ of
certiorari should be granted.
Respectfully submitted,
JULES LOBEL
Counsel of Record
MICHAEL RATNER ~
FRANKLIN SIEGEL
WILLIAM GOODMAN
JENNIFER GREEN
CENTER FOR CONSTITUTIONAL RIGHTS
666 Broadway, Seventh Floor
New York, NY 10012-2317
(412) 648-1375
(212) 614-6464
JoEL E. STARR
2442 Rayburn House Office Building
Washington, DC 20515
(202) 225-2631
27
JAMES KLIMASKI
KLIMASKI & MILLER, P.C.
1899 L Street, N.W.
Suite 1250
Washington, DC 20036
(202) 296-5600
H. LEE HALTERMAN
405 14" Street
Suite 907
Oakland, CA 94612
(510) 663-0936
Counsel for Petitioners
APPENDIX
la
APPENDIX A — OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF
COLUMBIA CIRCUIT DATED AND
DECIDED FEBRUARY 18, 2000
Tom CAMPBELL, Member, U.S. House of
Representatives, et al.,
Appellants,
v.
William Jefferson CLINTON, President of the
United States,
Appellee.
No. 99-5214.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 22, 1999.
Decided Feb. 18, 2000.
* * *
Before: SILBERMAN, RANDOLPH, and TATEL,
Circuit Judges.
Opinion for the Court filed by Circuit Judge
SILBERMAN.
2a
Appendix A
Separate concurring opinion filed by Circuit Judge
SILBERMAN.
Separate opinion concurring in the judgment filed by
Circuit Judge RANDOLPH.
Separate concurring opinion filed by Circuit Judge
TATEL.
SILBERMAN, Circuit Judge:
A number of congressmen, led by Tom Campbell of
California, filed suit claiming that the President violated the
War Powers Resolution and the War Powers Clause of the
Constitution by directing U.S. forces’ participation in the
recent NATO campaign in Yugoslavia. The district court
dismissed for lack of standing. We agree with the district
court and therefore affirm.
3
On March 24, 1999, President Clinton announced the
commencement of NATO air and cruise missile attacks on
Yugoslav targets. Two days later he submitted to Congress
a report, “consistent with the War Powers Resolution,”
detailing the circumstances necessitating the use of armed
forces, the deployment’s scope and expected duration, and
asserting that he had “taken these actions pursuant to [his]
authority . . .as Commander in Chief and Chief Executive.”
On April 28, Congress voted on four resolutions related to
the Yugoslav conflict: It voted down a declaration of war
427 to 2 and an “authorization” of the air strikes 213 to 213,
3a
Appendix A
but it 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 on June
10 with Yugoslavia’s agreement to withdraw its forces from
Kosovo and allow deployment of a NATO-led peacekeeping
force.’ Throughout this period Pentagon, State Department,
and NATO spokesmen informed the public on a frequent
basis of developments in the fighting.
Appellants, 31 congressmen opposed to U:S.
involvement in the Kosovo intervention, filed suit prior to
termination of that conflict seeking a declaratory judgment
that the President’s use of American forces against
Yugoslavia was unlawful under both the War Powers Clause
of the Constitution and the War Powers Resolution (“the
WPR”). See 50 U.S.C. § 1541 et seq. The WPR requires the
President to submit a report within 48 hours “in any case in
which United States Armed Forces are introduced .. . into
hostilities or into situations where imminent involvement in
hostilities is clearly indicated by the circumstances,” and to
“terminate any use of United States Armed Forces with
respect to which a report was submitted (or required to be
submitted), unless the Congress . . . has declared war or has
enacted a specific authorization for such use of United States
Armed Forces” within 60 days. Appellants claim that the
President did submit a report sufficient to trigger the WPR
on March 26, or in any event was required to submit a report
by that date, but nonetheless failed to end U.S. involvement
1. U.S. forces are currently stationed in Kosovo, which remains
part of Yugoslavia, as part of the peacekeeping operation, but
appellants do not claim that this deployment is relevant to their case.
4a
Appendix A
in the hostilities after 60 days. The district court granted the
President’s motion to dismiss, see Campbell v. Clinton, 52
F.Supp.2d 34 (D.D.C.1999), and this appeal followed.
Il.
The government does not respond to appellants’ claim
on the merits. Instead the government challenges the
jurisdiction of the federal courts to adjudicate this claim on
three separate grounds: the case is moot; appellants lack
standing, as the district court concluded; and the case is
nonjusticiable. Since we agree with the district court that
the congressmen lack standing it is not necessary to decide
whether there are other jurisdictional defects.
The question whether congressmen have standing in
federal court to challenge the lawfulness of actions of the
executive was answered, at léast in large part, in the Supreme
Court’s recent decision in Raines v. Byrd, 521 U.S. 811,
117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). Raines involved a
constitutional challenge to the President’s authority under
the short-lived Line Item Veto Act. Individual congressmen
claimed that under that Act a President could veto
(unconstitutionally) only part of a law and thereby diminish
the institutional power of Congress. Observing it had never
held that congressmen have standing to assert an institutional
injury as against the executive, see id. at 821, 117 S.Ct. 2312,’
2. The Court noted that it had found standing for a congressman
in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d
491 (1969), where he was unconstitutionally excluded from
Congress, thus depriving him of a salary and the House seat he was
(Cont’d)
Sa
Appendix A
the Court held that petitioners in the case lacked “legislative
Standing” to challenge the Act. The Court noted that
petitioners already possessed an adequate political remedy,
since they could vote to have the Line Item Veto Act
repealed, or to provide individual spending bills with a
statutory exemption. See id. at 829, 117 S.Ct. 2312.
Thereafter in Chenoweth v. Clinton, 181 F.3d 112, 115
(D.C.Cir.1999), emphasizing the separation-of-powers
problems inherent in legislative standing, we held that
congressmen had no standing to challenge the President’s
introduction of a program through executive order rather than
Statute. As in Raines, appellants contended that the
President’s action inflicted an institutional injury upon
Congress, in this case by circumventing its legislative
authority, but, we said,
It is uncontested that the Congress could terminate
the [contested program] were a sufficient number
in each House so inclined. Because the parties’
dispute is therefore fully susceptible to political
resolution, we would [under circuit precedent]
dismiss the complaint to avoid “meddl[ing] in the
internal affairs of the legislative branch.”
(Cont’d)
constitutionally due, both personal injuries. The Court did not decide
whether congressmen would have standing to challenge actions of
Congress which diminished their institutional role. Cf. Michel v.
Anderson, 14 F.3d 623 (D.C.Cir.1994) (congressmen had standing
to challenge House rule which diluted their vote in Committee of
the Whole).
6a
Appendix A
Applying Raines, we would reach the same
conclusion.
Id. at 116 (citation omitted).
There remains, however, a soft spot in the legal barrier
against congressional legal challenges to executive action,
and it is a soft spot that appellants sought to penetrate. In
1939 the Supreme Court in Coleman v. Miller voted 5-4 to
recognize the standing of Kansas State legislators in the
Supreme Court to challenge the actions of the Kansas
Secretary of State and the Secretary of the State Senate. See
307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). That case
arose out of a State Senate vote on the ratification of a
constitutional amendment, the Child Labor Amendment,
proposed by Congress in 1924. The State Senate split 20 to
20, and the Lieutenant Governor, the presiding officer of
the Senate, then cast a deciding vote in favor. The State
House subsequently also passed a ratification resolution.
Thereupon the twenty State Senators who voted against
ratification plus one more (who presumably had voted for
the resolution) brought a mandamus action in the State
Supreme Court challenging the Lieutenant Governor’s right
to vote. They sought an order compelling the Secretary of
3. The government also challenges the congressmen’s standing
on the basis that they do not constitute a majority of the Congress.
In Raines the Supreme Court did “attach some importance to the
fact that appellees have not been authorized to represent their
respective Houses of Congress in this action,” but it declined to say
how much importance. Raines, 521 U.S. at 829-30, 117 S.Ct. 2312.
Because we find that appellants lack standing for another reason,
we need not discuss that issue.
Ta
Appendix A
the Senate to erase the endorsement on the resolution and
restraining the Secretary of State from authenticating the
resolution and passing it on to the Governor. The Supreme
Court of Kansas entertained the action but ruled against the
plaintiffs on the merits. Granting certiorari, the United States
Supreme Court determined that “at least the twenty senators
whose votes, if their contention were sustained, would have
been sufficient to defeat the resolution . . . have an interest
... Sufficient to give the Court jurisdiction,” id. 2¢ 446, 59
S.Ct. 972, because they have a legal interest “in maintaining
the effectiveness of their votes.” Id. at 438, 59 S.C’. 972.
In Raines the plaintiff congressmen had relied on
Coleman to argue that they had standing because the
presidential veto had undermined the “effectiveness of their
votes.” The Supreme Court noted that Coleman might be
distinguished on grounds that the federal constitutional
separation of powers concerns that underlay its decision in
Raines (and which we emphasized in Chenoweth) were not
present, or that if the Court in Coleman had not taken the
case a question of federal law — the ratification vel non by
the Kansas Legislature — would remain as decided by the
Kansas Court. But cf. Coleman, 307 U.S. at 465-66, 59 S.Ct.
972 (opinion of Frankfurter, J.). But the Court thought it
unnecessary to cabin Coleman on those grounds. See Raines,
521 U.S. at 824 n. 8, 117 S.Ct. 2312. Instead, the Court
emphasized that the congressmen were not asserting that their
votes had been “completely nullified”:
They have not alleged that they voted for a
specific bill, that there were sufficient votes to
pass the bill, and that the bill was nonetheless
deemed defeated... .
8a
Appendix A
Nor can they allege that the Act will nullify their
votes in the future in the same way that the votes
of the Coleman legislators had been nullified . . .
In addition, a majority of Senators and
Congressmen can vote to repeal the Act, or to
exempt a given appropriations bill... .
Id. at 824, 117 S.Ct. 2312.
Here the plaintiff congressmen, by specifically defeating
the War Powers Resolution authorization by a tie vote and
by defeating a declaration of war, sought to fit within the
Coleman exception to the Raines rule. This parliamentary
tactic led to an extensive argument before us as to exactly
what the Supreme Court meant by a claim that a legislator’s
vote was completely “nullified.”
It is, to be sure, not readily apparent what the Supreme
Court meant by that word. It would seem the Court used
nullify to mean treating a vote that did not pass as if it had,
or vice versa. The “nullification” alleged in this case therefore
differs from Coleman in a significant respect. In that case
state officials endorsed a defeated ratification, treating it as
approved, while the President here did not claim to be acting
pursuant to the defeated declaration of war or a statutory
authorization, but instead “pursuant to [his] constitutional
authority to conduct U.S. foreign relations and as
Commander-in-Chief and Chief Executive.” See Letter to
Congressional Leaders Reporting on Airstrikes Against
Serbian Targets in the Federal Republic of Yugoslavia
(Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 528
9a
Appendix A
(March 26, 1999). The Court did not Suggest in Raines that
the President “nullifies” a congressional] vote and thus
legislators have standing whenever the government does
something Congress voted against, still less that congressmen
would have standing anytime a President allegedly acts in
excess of statutory authority. As the government correctly
observes, appellants’ Statutory argument, although cast in
terms of the nullification of a recent vote, essentially is that
the President violated the quarter-century old War Powers
Resolution. Similarly, their constitutional argument is that
the President has acted illegally — in excess of his authority
— because he waged war in the constitutional sense without
a congressional delegation. Neither claim is analogous to a
Coleman nullification.
We think the key to understanding the Court’s treatment
of Coleman and its use of the word nullification is its implicit
recognition that a ratification vote on a constitutional
amendment is an unusual situation. It is not at all clear
whether once the amendment was “deemed ratified,” see
Raines, 521 U.S. at 822, 117 S.Ct. 2312, the Kansas Senate
could have done anything to reverse that position.4 We think
that must be what the Supreme Court implied when it said
the Raines plaintiffs could not allege that the “[Line Item
Veto Act] would nullify their votes in the future,” and that,
after all, a majority of senators and congressmen could
always repeal the Line Item Veto Act. Id. at 824, 117 S.Ct.
2312 (emphasis added). The Coleman senators, by contrast,
4. See Coleman, 307 U.S. at 450, 59 S.Ct. 972 (“[T]he question
of the efficacy of ratifications of state legislatures, in the light of
- attempted withdrawal, should be regarded as a political
question. .. .”).
10a
Appendix A
may well have been powerless to rescind a ratification of a
constitutional amendment that they claimed had been
defeated. In other words, they had no legislative remedy.
Under that reading — which we think explains the very
narrow possible Coleman exception to Raines — appellants
fail because they continued, after the votes, to enjoy ample
legislative power to have stopped prosecution of the “war.”
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
lla
Appendix A
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.
Judge Randolph asserts that appellants lack standing
because they do not claim that the President violated various
Statutes that depend on the existence of a war or the
imminence of war. But that position sidesteps appellants’
basic claim that the President unconstitutionally conducted
a war without authority, and the logic of Judge Randolph’s
reasoning (“There is no suggestion that despite the vote,
President Clinton invaded Yugoslavia by land or took some
other action authorized only during a declared war.”) is that
if there had been a “war” appellants would have had standing.
See infra at 22 (Randolph, J., concurring).° He therefore
presents as an alternate reason for denying standing that the
President did not “nullify” the vote against the declaration
of war because he did not take any actions that constitute
“war” in the constitutional sense. See id. at 20-22. That
analysis, however, conflates standing with the merits. At the
standing stage we must take as correct appellants’ claim that
5. It is certainly not logically necessary for appellants to assert
a violation of the statutes (three of which do not even depend on a
declaration of war) relied upon by the concurrence in order to make
their constitutional claim.
12a
Appendix A
the President violated the Constitution simply by ordering
U.S. forces to attack Yugoslavia.
In our view Judge Randolph’s criticism of our analysis
does not give sufficient attention to Raines’ focus on the
political self-help available to congressmen. See infra at 23
(Randolph, J., concurring). Even though the congressmen
in Raines sought review before the Court of what was soon
after determined in Clinton v. City of New York, 524 U.S.
417, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998), to be an
unconstitutional statute, the Court denied them standing as
congressmen because they possessed political tools with
which to remedy their purported injury. Our colleague notes
a distinction drawn by Raines between “the right to vote in
the future [and] the nullification of a vote in the past,” see
infra at 23 (Randolph, J., concurring), and asserts that the
former does not remedy the latter. But Raines rejected this
argument, which is why the congressmen in Raines lacked
standing whereas petitioners in New York were allowed to
contest the President’s “nullification” of particular
appropriations line items. Indeed, Raines explicitly rejected
Judge Randolph’s argument that legislators should not be
required to turn to politics instead of the courts for their
remedy. Although the plaintiff legislators in Raines had
already failed to stop passage of the Line Item Veto Act, the
Court’s response was the equivalent of “if at first you don’t
succeed, try and try again” — either work for repeal of the
Act, or seek to have individual spending bills made exempt.
See Raines, 521 U.S. at 824-25, 825 n. 9, 830. Judge
Randolph overlooks this key portion of Raines when he
disagrees with our conclusion that plaintiffs lack standing
asagiscie la
13a
Appendix A
because they may “fight again tomorrow.” Infra at 23
(Randolph, J., concurring).°
* * *
Accordingly, the district court is affirmed; appellants
lack standing.
6. Judge Randolph also contends that our opinion is in conflict
with Chenoweth v. Clinton, 181 F.3d 112, 116-17 (D.C.Cir.1999),
But as we have already described that opinion, see supra at 21, it
too focused on the political options available to congressmen when
denying them standing. Chenoweth did not hold, as Judge Randolph
would have it, that Kennedy v. Sampson, 511 F.2d 430
(D.C.Cir.1974), survived Raines. Instead, we stressed the increased
emphasis placed by such post-Kennedy cases as Raines on separation
of powers concerns. See Chenoweth, 181 F.3d at 113-15. Although
appellants’ injury in Chenoweth was “precisely the harm we held in
... Kennedy to be cognizable under Article III,” it was also
“identical to the injury the Court in Raines deprecated as ‘widely
dispersed’ and ‘abstract,’ ” and therefore we affirmed the district
court’s dismissal for lack of Standing. Id. We only suggested
tentatively that “Kennedy may remain good law ... as a peculiar
application of the narrow rule announced in” Coleman. See id. at
116 (emphasis added). Indeed, Judge Tatel understandably read our
opinion to “essentially overrule ] the theory of legislative standing
recognized in Kennedy. . . .” See id. at 117 (Tatel, J., concurring).
In any event, Chenoweth’s discussion of Kennedy’s fate after Raines
was dicta, and we need not decide for purposes of this case if
Kennedy, which involved the special question of a pocket veto,
survived Raines.
l4a
Appendix A
SILBERMAN, Circuit Judge, concurring:
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).
Prior litigation under the WPR has turned on the
threshold test whether U.S. forces are engaged in hostilities
or are in imminent danger of hostilities. But the question
posed by appellants — whether the President’s refusal to
discontinue American activities in Yugoslavia violates the
WPR — necessarily depends on the statute having been
triggered in the first place. It has been held that the statutory
threshold standard is not precise enough and too obviously
calls for a political judgment to be one suitable for judicial
determinations. See, e.g., Sanchez-Espinoza v. Reagan, 770
F.2d 202, 209 (D.C.Cir.1985) (aid to Contras); Crockett v.
Reagan, 720 F.2d 1355, 1356- 57 (D.C.Cir.1983) (U.S.
advisors in El Salvador); see also Ange v. Bush, 752 F.Supp.
509, 514 (D.D.C.1990) (pre-Gulf War buildup); Lowry v.
Reagan, 676 F.Supp. 333, 340 n. 53 (D.D.C.1987) (reflagging
15a
Appendix A
operations in the Persian Gulf). I think that is correct.
Appellants point to a House Report suggesting that hostilities
for purposes of the WPR include all situations “where there
is a reasonable expectation that American military personnel
will be subject to hostile fire.” See H.R. REP. NO. 287, 93rd
Cong., Ist Sess. 7 (1973). That elaboration hardly helps. It
could reasonably be thought that anytime American soldiers
are confronted by armed or potentially armed forces of a
non-ally there is a reasonable expectation that they will be
subject to hostile fire. Certainly any competent military
leader will assume that to be so.
Appellants argue that here there is no real problem of
definition because this air war was so overwhelming and
indisputable. It is asserted that the President implicitly
conceded the applicability of the WPR by sending the report
to Congress. In truth, the President only said the report was
“consistent” with the WPR. In any event, I do not think it
matters how clear it is in any particular case that “hostilities”
were initiated if the statutory standard is one generally
unsuited to judicial resolution.
Nor is the constitutional claim justiciable. Appellants
contend this case is governed by Mitchell v. Laird, 488 F.2d
611, 614 (D.C.Cir.1973), where we said that “[t]here would
be no insuperable difficulty in a court determining whether”
the Vietnam conflict constituted a war in the Constitutional
sense. See also Dellums v. Bush, 752 F.Supp. 1141, 1146
(D.D.C.1990) (“[T]he Court has no hesitation in concluding
that an offensive entry into Iraq by several hundred thousand
United States servicemen . . . could be described as a ‘war’
within the meaning . . . of the Constitution.”). But a careful
16a
Appendix A
reading of both cases reveals that the language upon which
appellants rely is only dicta. (In Laird the Court ultimately
held that the resolution of the issues was a political question.
See 488 F.2d at 616.)'
Appellants cannot point to any constitutional test for
what is war. See, e.g., Holtzman v. Schlesinger, 414 U.S.
1316, 94 S.Ct. 8, 38 L.Ed.2d 28 (1973) (Justice Douglas, in
chambers, vacating order of Court of Appeals granting stay
of district court’s injunction against bombing of Cambodia),
414 US. at 1321, 94 S.Ct. 8 (1973) (Justice Marshall, in
chambers, granting stay the same day with the concurrence
of the other Justices); Holtzman v. Schlesinger, 484 F.2d
1307 (2d Cir.1973) (holding legality of Cambodia bombing
nonjusticiable because courts lack expertise to determine
import of various military actions). Instead, appellants offer
a rough definition of war provided in 1994 by an Assistant
Attorney General to four Senators with respect to a planned
intervention in Haiti, as well as a number of law review
articles each containing its own definition of war. I do not
1. The additional cases upon which Judge Tatel relies with
respect to this point were also held to present political questions.
See Massachusetts v. Laird, 451 F.2d 26, 34 (1st Cir.1971) (“All
we hold here is that in a situation of prolonged but undeclared
hostilities, where the executive continues to act not only in the
absence of any conflicting congressional claim of authority but with
steady congressional support, the Constitution has not been
breached.”); Orlando v. Laird, 443 F.2d 1039, 1043 (2d Cir.1971)
(whether Vietnam conflict required a declaration of war was a
political question); Berk v. Laird, 429 F.2d 302 (2d Cir.1970)
(denying a preliminary injunction against dispatch of soldier to
Vietnam because whether Congress had authorized conflict was a
political question).
17a
Appendix A
think any of these sources, however, offers a coherent test
for judges to apply to the question what constitutes war, a
point only accentuated by the variances, for instance, between
the numerous law review articles. For that reason, I disagree
with Judge Tatel’s assertion that we can decide appellants’
constitutional claim because it is somehow obvious in this
case that our country fought a war. See infra at 22 (Tatel, J.,
concurring). Baker v. Carr speaks of a case involving “a lack
of judicially discoverable and manageable standards for
resolving” the issue presented, see 369 U.S. at 217, 82 S.Ct.
691, not just a case the facts of which are obscure; the focus
is on the standards. Even if this court knows all there is to
know about the Kosovo conflict, we still do not know what
standards to apply to those facts.
Judge Tatel points to numerous cases in which a court
has determined that our nation was at war, but none of these
cases involved the question whether the President had
“declared war” in violation of the Constitution. For instance,
in Bas v. Tingy, 4 U.S. (4 Dall.) 37, 1 L.Ed. 731 (1800), the
question whether there was a “war” was only relevant to
determining whether France was an “enemy” within the
meaning of a prize statute. See id. at 37 (“[T]he argument
turned, principally, upon two inquiries: 1st. Whether the Act
of March 1799, applied only to the event of a future general
war? 2d. Whether France was an enemy of the United States,
within the meaning of the law?”). Indeed, Justice
Washington’s opinion in that case, upon which Judge Tatel
principally relies, suggests that whether there was a war in
the constitutional sense was irrelevant. See id. at 42
(“Besides, it may be asked, why should the rate of salvage
be different in such a war as the present, from the salvage in
18a
Appendix A
a war more solemn [i.e. a declared war] or general?’’). It is
similarly irrelevant that courts have determined the existence
of a war in cases involving insurance policies and other
contracts, the Federal Tort Claims Act, and provisions of
the military criminal code applicable in “time of war.” See
infra at 20-21 (Tatel, J., concurring). None of these cases
asked whether there was a war as the Constitution uses that
word, but only whether a particular statutory or contractual
provision was triggered by some instance of fighting.
Comparing Bas v. Tingy’s lengthy discussion whether our
quarrel with France constituted a solemn or imperfect,
general or limited war, see 4 U.S. at 40-41, with today’s
propensity to label any widespread conflict an
undifferentiated war, it would not be surprising if an
insurance contract’s “war” provisions, or even a statute’s
for that matter, were triggered before the Constitution’s.
Even assuming a court could determine what “war” is,
it is important to remember that the Constitution grants
Congress the power to declare war, which is not necessarily
the same as the power to determine whether U:S. forces will
fight in a war. This distinction was drawn in the Prize Cases,
67 U.S. (2 Black) 635, 17 L.Ed. 459 (1862). There,
petitioners challenged the authority of the President to
impose a blockade on the secessionist States, an act of war,
where Congress had not declared war against the
Confederacy. The Court, while recognizing that the President
“has no power to initiate or declare a war,” observed that
“war may exist without a declaration on either side.” Id. at
668. In instances where war is declared against the United
States by the actions of another country, the President “does
not initiate the war, but is bound to accept the challenge
Fe ee ee ee ee ee ee ee ee ee Eee ee je
19a
Appendix A
without waiting for any special legislative authority.” Id.
Importantly, the Court made clear that it would not dispute
the President on measures necessary to repel foreign
aggression. The President alone
must determine what degree of force the crisis
demands. The proclamation of blockade is itself
official and conclusive evidence to the Court that
a state of war existed which demanded and
authorized a recourse to such a measure, under
the circumstances peculiar to the case.
Id. at 670.? And, to confirm the independent authority of the
President to meet foreign aggression, the Court noted that
while Congress had authorized the war, it may not have been
required to: “If it were necessary to the technical existence
2. Judge Tatel’s reliance on the Prize Cases as an example of
the Court concluding a war exists is misplaced because the Court
itself did not label the Civil War such, but instead deferred to the
President’s determination that the country was at war. See 67 U.S.
(2 Black) at 670 (“Whether the President in fulfilling his duties, as
Commander-in-chief . . . has met with such armed hostile resistance
-- as will compel him to accord to them the character of belligerents,
is a question to be decided by him, and this Court must be governed
by the decisions and acts of the political department of the
Government to which this power was entrusted”) (emphasis in
original). Therefore, the Court’s assertion that “it is bound to notice
and to know” the war, see id. at 667, provides no support for the
proposition that a court itself may decide when in fact there is one.
The Prize Cases thus refute the Suggestion in Talbot v. Seeman, 5
U.S. (1 Cranch) 1, 28, 2 L.Ed. 15 (1801), that only acts of Congress
are evidence of the existence of a war. See infra at 20 (Tatel, J.,
concurring).
20a
Appendix A
of a war, that it should have a legislative sanction, we find
it... .” Id. (emphasis added).
I read the Prize Cases to stand for the proposition that
the President has independent authority to repel aggressive
acts by third parties even without specific congressional
authorization, and courts may not review the level of force
selected. See Geoffrey Corn, Presidential War Power: Do
the Courts Offer Any Answers?, 157 MIL. L. REV. 180,
214 (1998); J. Gregory Sidak, To Declare War, 41 DUKE
L.J. 27, 54 (1991); Cyrus R. Vance, Striking the Balance:
Congress and the President Under the War Powers
Resolution, 133 U. PA. L. REV. 79, 85 (1984). Therefore, I
assume, arguendo, that appellants are correct and only
Congress has authority to initiate “war.” If the President may
direct U.S. forces in response to third-party initiated war,
then the question any plaintiff who challenges the
constitutionality of a war must answer is, who started it?
The question of who is responsible for a conflict is, as history
reveals, rather difficult to answer, and we lack judicial
standards for resolving it. See, e.g., Greenham Women
Against Cruise Missiles v. Reagan, 591 F.Supp. 1332,
1337-38 (S.D.N.Y.1984) (court lacked judicially manageable
standards to decide if placement of U.S. cruise missiles in
England was a war-like, “aggressive” act). Then there is the
problem of actually discovering the necessary information
to answer the question, when such information may be
unavailable to the U:S. or its allies, or unavailable to courts
due to its sensitivity. See id. at 1338. Perhaps Yugoslavia
did pose a threat to a much wider region of Europe and to
U.S. civilian and military interests and personnel there.
2la
Appendix A
Judge Tatel does not take into account the Prize Cases
when he concludes that the President was not exercising his
independent authority to respond to foreign aggression
because “in fact, the Kosovo issue had been festering for
years.” See infra at 22 (Tatel, J., concurring). As quoted
above the President alone “must determine what degree of
force the crisis demands.” See 67 U.S. at 670. Judge Tatel
would substitute our judgment for the President’s as to the
point at which an intervention for reasons of national security
is justified, after which point — when the crisis is no longer
acute — the President must obtain a declaration of war. One
Should bear in mind that Kosovo’s tensions antedate the
creation of this republic.
In most cases this will also be an issue of the greatest
sensitivity for our foreign relations. Here, the President
claimed on national television that our country needed to
respond to Yugoslav aggression to protect our trading
interests in Europe, and to prevent a replay of World War I.
A pronouncement by another branch of the U.S. government
that U.S. participation in Kosovo was “unjustified” would
no doubt cause strains within NATO. Cf. United States v.
New, 50 M.J. 729, 739-40 (Army Ct.Crim.App.1999)
(lawfulness of U.N. peacekeeping operation in Macedonia
was a political question).
In sum, there are no standards to determine either the
statutory or constitutional questions raised in this case, and
the question of whether the President has intruded on the
war-declaring authority of Congress fits squarely within the
political question doctrine. We therefore have another basis
for our affirming the district court’s dismissal of appellants’
case.
22a
~ Appendix A
RANDOLPH, Circuit Judge, concurring in the judgment:
The majority opinion does not, I believe, correctly
analyze plaintiffs’ standing to sue. It misconceives the
holding of Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312,
138 L.Ed.2d 849 (1997), and conflicts with the law of this
circuit. I believe plaintiffs lack standing, at least to litigate
their constitutional claim, but for reasons the majority
opinion neglects. I also believe that the case is moot, an
optional disposition of the appeal.' The serious questions
about the constitutionality of the War Powers Resolution?
must therefore be put off for still another day.
1. While we may be required to decide jurisdictional issues
before disposing of a case on the merits, we are not required to
decide jurisdictional questions in any particular order. See Arizonans
for Official English v. Arizona, 520 U.S. 43, 66-67, 117 S.Ct. 1055,
137 L.Ed.2d 170 (1997); Galvan v. Federal Prison Indus., Inc., 199
F.3d 461 (D.C.Cir.1999) (citing Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 94-95, 118 S.Ct. 1003, 140 L.Ed.2d 210
(1998); Ruhrgas A.G. v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct.
1563, 143 L.Ed.2d 760 (1999)). Specifically, we may assume
standing when dismissing a case as moot. See Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs., U.S. _, at __, 120 S.Ct. 693,
703-04, 145 L.Ed.2d 610 (2000) (citing Arizonans, 520 U.S. at
66-67, 117 S.Ct. 1055).
2. Il include as an Addendum to this opinion President Nixon’s
1973 message to the House of Representatives explaining why he
vetoed the War Powers Resolution on the grounds of its
unconstitutionality.
23a
Appendix A
I. Standing
The Constitution reserves the power to declare “war”
to Congress and delegates the power to conduct war to the
President. Compare U.S. Const. art. I, § 8, cl. 11, with id.
art. II, § 2. When President Clinton committed armed forces
to the attack on the Federal Republic of Yugoslavia, he did
so without a declaration of war from Congress. On April 28,
1999, after air operations and missile strikes were underway,
the House of Representatives voted 427 to 2 against a
declaration of war. See H.R.J. Res. 44, 106th Cong. (1999);
126 Cong. Rec. H2440-41 (daily ed. Apr. 28, 1999).
The War Powers Resolution, passed over President
Nixon’s veto in 1973, implements Congress’s power to
3. War may be defined [as] the exercise of violence
under sovereign command against withstanders: force,
authority and resistance being the essential parts
thereof. Violence, limited by authority, is sufficiently
distinguished from robbery, and like outrages; yet
consisting in relation towards others, it necessarily
requires a supposition of resistance, whereby the force
of war becomes different from the violence inflicted
upon slaves or yielding malefactors.
SAMUEL JOHNSON, A DICTIONARY OF THE ENGLISH
LANGUAGE (facsimile ed., Times Books, Ltd., London 1978)
(1755). See United States v. Bajakajian, 524 U.S. 321, 335, 118
S.Ct. 2028, 141 L.Ed.2d 314 (1998) (citing Johnson); Nixon v.
United States, 506 U.S. 224, 229-30, 113 S.Ct. 732, 122 L.Ed.2d 1
(1993) (same); see also Bas v. Tingy, 4 U.S. (4 Dall.) 37, 1 L.Ed.
731 (1800) (relying on Blackstone and other commentators to
distinguish between perfect and imperfect wars).
24a
Appendix A
declare war under the Constitution. See 50 U.S.C.
§ 1541(a)-(b). It commands the President to “terminate any
use of United States Armed Forces” within sixty days “unless
the Congress (1) has declared war or has enacted a specific
authorization for such use of United States Armed Forces,
(2) has extended by law such sixty-day period, or (3) is
physically unable to meet as a result of an armed attack upon
the United States.” 50 U.S.C. § 1544(b). The Senate, on
March 23, 1999, passed a concurrent resolution providing
that “the President of the United States is authorized to
conduct military air operations and missile strikes in
cooperation with our NATO allies against the Federal
Republic of Yugoslavia.” S. Con. Res. 21, 106th Cong.
(1999); 145 CONG. REC. $3118 (daily ed. Mar. 23, 1999).
The House rejected that measure by a tie vote on April 28,
1999. See 126 CONG. REC. H2451-52 (daily ed. Apr. 28,
1999).
The Members of Congress appearing as plaintiffs
contend that President Clinton violated the Constitution and
the War Powers Resolution and that they are entitled to a
judicial declaration so stating. They have standing, they say,
because President Clinton’s prosecution of the war
“completely nullified” their votes against declaring war and
against authorizing a continuation of the hostilities. See
Amended Complaint 4 18; Brief for Plaintiffs-Appellants at
8, 16.
A.
The quoted phrase — “completely nullified” — is from
Raines v. Byrd, 521 U.S. 811, 823, 117 S.Ct. 2312, 138
25a
Appendix A
L.Ed.2d 849 (1997), giving the Court’s appraisal of the rule
in Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed.
1385 (1939). The majority opinion in our case seems to
assume that the only thing left of legislative standing is
whatever Raines preserves. I will not quarrel with the
assumption, at least for cases in which a legislator is claiming
that his vote has been illegally 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."
Here, plaintiffs had the votes “sufficient to defeat” “a
specific legislative action” — they defeated a declaration of
war (their constitutional claim) and they blocked a resolution
4. The Court has “recognized that state legislators have
standing to contest a decision holding a state statute unconstitutional
if state law authorizes legislators to represent the State’s interests,”
Arizonans, 520 U.S. at 65, 117 S.Ct. 1055 (citing Karcher v. May,
484 U.S. 72, 82, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987)). Compare
INS v. Chadha, 462 U.S. 919, 930 n. 5, 939-40, 103 S.Ct. 2764, 77
L.Ed.2d 317 (1983), in which the “Court held Congress to be a proper
party to defend [a] measure’s validity where both Houses, by
resolution, had authorized intervention in the lawsuit,” and the
executive branch refused to defend the one-House veto provision.
520 U.S. at 65 n. 20, 117 S.Ct. 1055.
5. A vote is “completely nullified” when it is “deprived of all
validity,” Raines, 521 U.S. at 822, 117 S.Ct. 2312, “overridden and
Virtually held for naught,” id. at 822-23, 117 S.Ct. 2312, or “stripped
of its validity,” id. at 824 n. 7, 117 S.Ct. 2312.
26a
Appendix A
approving the President’s continuation of the war (their
statutory claim). To follow precisely the formulation in
Raines, they would have standing only if the legislative
actions they defeated went “into effect.” Obviously, this did
not happen: war was not declared, and the President never
maintained that he was prosecuting the war with the House’s
approval.
Plaintiffs’ reply is that the President’s military action
against Yugoslavia without congressional authorization had
the effect of completely nullifying their votes, of making
their votes worthless. With respect to their vote against
declaring war, that clearly is not true. A congressional
declaration of war carries with it profound consequences.°
The United States Code is thick with laws expanding
executive power “in time of war.” See OFFICE OF THE
JUDGE ADVOCATE GENERAL, UNITED STATES AIR
FORCE, DIGEST OF WAR AND EMERGENCY
6. Although the United States has committed its armed forces
into combat more than a hundred times, Congress has declared war
only five times: the War of 1812, the Mexican-American War of
1848, the Spanish-American War of 1898, World War I, and World
War II. See CONGRESSIONAL RESEARCH SERVICE,
INSTANCES OF USE OF UNITED STATES ARMED FORCES
ABROAD, 1789-1989 (Ellen C. Collier ed., 1989), reprinted in
THOMAS M. FRANCK & MICHAEL J. GLENNON, FOREIGN
RELATIONS AND NATIONAL SECURITY LAW 650 (2d
ed.1993); OFFICE OF THE LEGAL ADVISER, U.S.
DEPARTMENT OF STATE, THE LEGALITY OF UNITED
STATES PARTICIPATION IN THE DEFENSE OF VIETNAM
(1966), reprinted in 1 THE VIETNAM WAR AND
INTERNATIONAL LAW 583, 597 (Richard A. Falk ed., 1968)
(listing 125 incidents prior to the Vietnam Conflict).
27a
Appendix A
LEGISLATION AFFECTING THE DEPARTMENT OF
DEFENSE 171-84 (1996) (listing statutes “effective in time
of war”); cf. id. at 185-91 (listing statutes “effective in time
of national emergency declared by the President”); id. at
192-98 (listing statutes “effective in time of national
emergency declared by Congress’’).’ Under these laws, the
President’s authority over industries, the use of land, and
the terms and conditions of military employment is greatly
enhanced.* A declaration of war may also have the effect of
7. Inthe early days of the Republic, the power of the executive
in time of war was constrained by an absence of legislation. For
example, in Brown v. United States, 12 U.S. (8 Cranch) 110, 3 L.Ed.
504 (1814), the Court rejected the argument that the President had
the authority to confiscate enemy property found within the United
States without explicit statutory authority even during a declared
war. See id. at 129. The same reasoning was applied to the taking of
ships on the high seas in Little v. Barreme, 6 U.S. (2 Cranch) 170,
2 L.Ed. 243 (1804). Even in the wake of World War II, after
Congress passed a large number of war-related measures, the Court
strictly construed the President’s authority. The most notable
example, of course, is Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 585, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (“The
President’s power, if any, to issue the order must stem either from
an act of Congress or from the Constitution itself.”); cf. also Dames
& Moore v. Regan, 453 U.S. 654, 101 S.Ct. 2972, 69 L.Ed.2d 918
(1981).
8. See, e.g., 10 U.S.C. § 2538 (authorizing the President to
“take immediate possession of any plant that is equipped to
manufacture, or that . . . is capable of manufacturing” war material
“in time of war or when war is imminent”); 10 U.S.C. § 2644 (“In
time of war, the President, through the Secretary of Defense, may
take possession and assume control of all or part of any system of
(Cont’d)
28a
Appendix A
decreasing commercial choices and curtailing civil liberties.’
See WILLIAM H. REHNQUIST, ALL THE LAWS BUT
ONE: CIVIL LIBERTIES IN WARTIME 218-19 (1998)
(“Without question the government’s authority to engage in
conduct that infringes civil liberty is greatest in time of
declared war — the Schenck and Hirabayashi opinions make
this clear... . [BJut from the point of view of governmental
authority under the Constitution, it is clear that the President
may do many things in carrying out a congressional directive
that he may not be able to do on his own.”).
(Cont'd)
transportation to transport troops, war material, and equipment, or
for other purposes related to the emergency.”); 10 U.S.C. § 2663(b)
(“In time of war or when war is imminent, the United States may,
immediately upon the filing of a petition for condemnation under
subsection (a), take and use the land to the extent of the interest
sought to be acquired.”’); 50 U.S.C. § 1829 (“Notwithstanding any
other provision of law, the President, through the Attorney General,
may authorize physical searches without a court order. . . to acquire
foreign intelligence information for a period not to exceed 15
calendar days following a declaration of war by the Congress.”).
9. See, e.g., 18 U.S.C. § 2388(a) (“Whoever, when the United
States is at war, willfully causes or attempts to cause insubordination,
disloyalty, mutiny, or refusal of duty, in the military or naval forces
of the United States, or willfully obstructs the recruiting or enlistment
service of the United States, to the injury of the service or the United
States, or attempts to do so — Shall be fined under this title or
imprisoned not more than twenty years, or both.”); 18 U.S.C. § 3287
(tolling statute of limitations for any offense involving fraud against
the property of the United States until three years after the
termination of hostilities).
29a
Appendix A
The vote of the House on April 28, 1999, deprived
President Clinton of these powers. The vote against declaring
war followed immediately upon the vote not to require
immediate withdrawal. Those who voted against a
declaration of war did so to deprive the President of the
authority to expand hostilities beyond the bombing campaign
and, specifically, to deprive him of the authority to introduce
ground troops into the conflict. See 145 CONG. REC.
H2427-41 (daily ed. Apr. 28, 1999). There is no suggestion
that despite the vote, President Clinton invaded Yugoslavia
by land or took some other action authorized only during a
declared war. It follows that plaintiffs’ votes against
declaring war were not for naught. For that reason, plaintiffs
do not have standing to sue on their constitutional claim.
As to their claim under the War Powers Resolution, the
beauty of this measure, or one of its defects (see the
Addendum to this opinion), is in its automatic operation:
unless a majority of both Houses declares war, or approves
continuation of hostilities beyond 60 days, or Congress is
“physically unable to meet as a result of an armed attack
upon the United States,” the Resolution requires the President
to withdraw the troops. 50 U.S.C. § 1544(b). The President
has nothing to veto. Congress may allow the time to run
without taking any vote, or it may — as the House did here
— take a vote and fail to muster a majority in favor of
continuing the hostilities.
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
30a
Appendix A
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, | need say no more.
B.
The majority opinion analyzes standing rather differently
than | do. It says plaintiffs lack standing to pursue their
statutory claim because “they continued, after the votes, to
enjoy ample legislative power to have stopped prosecution
of the ‘war.’ ” Maj. op. at 23. For specifics, the opinion points
out that Congress defeated House Concurrent Resolution 82,
a resolution requiring immediate disengagement from the
conflict in Yugoslavia; that “Congress always retains
appropriations authority and could have cut off funds for
31a
Appendix A
the American role in the conflict”;'® and that “there always
remains the possibility of impeachment.” Id.'' The same
reason — the possibility of future legislative action — is
used to defeat plaintiffs’ standing with respect to their
constitutional claim. Id. at 23.
10. The majority attaches some importance to Congress’s
decision to authorize funding for Operation Allied Force and argues
that Congress could have denied funding if it wished to end the
war. However, in Mitchell v. Laird, 488 F.2d 611, 616
(D.C.Cir.1973), we held that, as “every schoolboy knows,” Congress
may pass such legislation, not because it is in favor of continuing
the hostilities, but because it does not want to endanger soldiers in
the field. The War Powers Resolution itself makes the same point:
“Authority to introduce United States Armed Forces into hostilities
or into situations wherein involvement in hostilities is clearly
indicated by the circumstances shall not be inferred ... from any
provision of law (whether or not in effect before November 7, 1973),
including any provision contained in any appropriation Act, unless
such provision specifically authorizes the introduction of United
States Armed Forces into hostilities or into such situations and states
that it is intended to constitute specific statutory authorization within
the meaning of this chapter.” 50 U.S.C. § 1547(a)(1) (emphasis added).
Those portions of the Emergency Supplemental Appropriations Act,
Pub.L. No. 106-31, 113 Stat. 57, relating to the attacks on Yugoslavia
specified the limited purpose for the emergency appropriations, but
contained no language even roughly approximating that required by
the War Powers Resolution. See id., ch. 3, 113 Stat. 76-83.
11. These are not the only possibilities. “It has been thought
that Congress could constitutionally cut the President’s salary in
half and auction off the White House, reduce the President’s staff
to one secretary, and limit her or him to answering personal
correspondence.” A. Raymond Randolph, Introduction —
Disciplining Congress: The Boundaries of Legislative Power, 13
J.L. & POL. 585, 586 (1997).
32a
Appendix A
The majority has, I believe, confused the right to vote in
the future with the nullification of a vote in the past, a
distinction Raines clearly made. See 521 U.S. at 824, 117
S.Ct. 2312. To say that your vote was not nullified because
you can vote for other legislation in the future is like saying
you did not lose yesterday’s battle because you can fight
again tomorrow. The Supreme Court did not engage in such
illogic. When the Court in Raines mentioned the possibility
of future legislation, it was addressing the argument that “the
[Line Item Veto] Act will nullify the [Congressmen’s] votes
in the future. .. .” Id. This part of the Court’s opinion, which
the majority adopts here, is quite beside the point to our case.
No one is claiming that their votes on future legislation will
be impaired or nullified or rendered ineffective.
Besides, as long as Congress and the Constitution exist,
Members will always be able to vote for legislation. And so
the majority’s decision is tantamount to a decision abolishing
legislative standing. I have two problems with this. First, if
we are going to get rid of legislative standing altogether, we
ought to do so openly and not under the cover of an
interpretation, or rather misinterpretation, of a phrase in
Raines. If the Supreme Court had meant to do away with
legislative standing, it would have said so and it would have
given reasons for taking that step.
My second problem Is just as serious, perhaps more so:
the majority’s decision conflicts with this court’s latest
legislative standing decision. In Chenoweth v. Clinton, 181
F.3d 112, 116-17 (D.C.Cir.1999), we interpreted Raines
consistently with my analysis in this case and concluded that
a previous legislative standing decision of this court —
33a
Appendix A
Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974) —
upholding legislative standing to challenge the legality of a
pocket veto was still good law. The plaintiff in Kennedy
had standing under the proper interpretation of Raines, we
held, because the “pocket veto challenged in that case had
made ineffective a bill that both houses of the Congress had
approved. Because it was the President’s veto — not a lack
of legislative support — that prevented the bill from
becoming law (either directly or by the Congress voting to
override the President’s veto), those in the majority could
plausibly describe the President’s action as a complete
nullification of their votes.” 181 F.3d at 116-17. If
Chenoweth is correct, the majority opinion in this case must
be wrong. If Chenoweth is correct, it is no answer to say —
as the majority says in this case — that standing is lacking
because, despite the pocket veto, Congress could pass the
Same law again, or it could retaliate by cutting off
appropriations for the White House or it could impeach the
President.
c.
My position, the majority complains, “sidesteps”
plaintiffs’ merits “claim that the President unconstitutionally
conducted a war without authority,” Maj. op. at 23. This is
meant to be criticism? A properly-conducted standing
analysis almost always avoids — sidesteps — a decision on
the merits.'? In the next breath, the majority turns around
12. The majority drops this footnote: “It is certainly not
logically necessary for appellants to assert a violation of the statutes
- relied upon by the concurrence in order to make their
(Cont'd)
34a
Appendix A
and contradicts itself, proclaiming that my analysis “conflates
standing with the merits.” Id. | am familiar with what I have
written. I do not recall having rendered a judgment about
whether the President violated the Constitution. The careful
reader will, I think, agree with me. Nor do I present “as an
alternative reason for denying standing that the President
did not. . . take any actions constituting war in the constitutional
sense.” Id. The majority’s sentence is doubly misleading. Here
is my alternative reason for denying standing, pure and simple:
regardless whether President Clinton waged a “war,” plaintiffs
never claimed that he exercised statutory authority reserved
to him only when Congress has declared a war; and so their
votes against declaring war cannot be considered a nullity.
Thus, one, I have taken no position on whether the President
engaged in a “war,” and two, I say only that plaintiffs never
alleged that the President utilized these statutory powers.
Too often a strategy in legal argumentation is to pretend to
answer an argument by misstating it.'* My argument remains
unanswered. All the majority has done is to misstate it almost
as badly as it has misread Raines.
(Cont'd)
constitutional claim.” Maj. op. at 23 n.5. How strange a statement. I
refer to the statutes not in the context of plaintiffs’ making their
constitutional claim, but in regard to their standing to litigate that
claim. It is as if the majority had made this brow-furrowing
statement: “in order to make out their constitutional claim, it 1s not
logically necessary for plaintiffs to assert that their votes were
nullified within the meaning of Raines.”
13. See also the sentence attributing to me the “argument that
legislators should not be required to turn to politics instead of the
courts for their remedy.” Maj. op. at 24. There are other examples
not worth mentioning.
35a
Appendix A
Il. Mootness
The amended complaint, filed on May 19, 1999, sought
a declaratory judgment “that no later than May 25, 1999, the
President must terminate the involvement of the United
States Armed Forces in such hostilities unless Congress
declares war, or enacts other explicit authorization, or has
extended the sixty day period.” Amended Complaint at 12;
see 50 U.S.C. § 1544(b)(1)-(2). All agree that the “hostilities”
ended by June 21, 1999, after NATO’s Secretary General
announced the official termination of the air campaign and
Secretary of Defense Cohen announced the redeployment of
more than 300 US. aircraft back to their home bases.
To save their case from mootness, plaintiffs therefore
invoke the rule regarding issues “capable of repetition, yet
evading review.” Southern Pacific Terminal Co. v. ICC, 219
U.S. 498, 515, 31 S.Ct. 279, 55 L.Ed. 310 (1911); Christian
Knights of the Ku Klux Klan v. District of Columbia, 972
F.2d 365, 369-71 (D.C.Cir. 1992). Plaintiffs must, but cannot,
satisfy both elements to prevail. Their constitutional and
statutory claims are at cross purposes.
The “evading review” part of the formulation is
temporal. How quickly must an activity begin and end to
evade judicial review? This depends on which court does
the reviewing. The Supreme Court has treated the matter in
terms of itself. Hence evading review means evading
Supreme Court review, see Christian Knights, 972 F.2d at
369, which can be (though usually is not) swift review. See,
e.g., New York Times Co. v. United States, 403 U.S. 713,
91 S.Ct. 2140, 29 L.Ed.2d 822 (1971); Buckley v. Valeo,
36a
Appendix A
424 US. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). Some
undeclared wars, or in the euphemism of the day,
“hostilities,” are over quickly; others, like the Korean War
and the war in Vietnam, last for years. Circuit precedent
requires us to determine whether the activity challenged is
“inherently” of a sort that evades review; circuit precedent
also holds that “offensive wars initiated without
congressional approval” are not in that category. Conyers v.
Reagan, 765 F.2d 1124, 1128 (D.C.Cir.1985). That holding,
which remains the law of the circuit, means that we must
treat plaintiffs’ claims as moot.
Plaintiffs’ statutory claim — that President Clinton
continued the war for more than 60 days without
congressional authorization, in violation of the War Powers
Resolution — also may not satisfy the “capable of repetition”
element. There is an aspect of probability involved here. “By
‘capable of repetition’ the Supreme Court means ‘a
reasonable expectation that the same complaining party
would be subject to the same action again.’ ” Christian
Knights, 972 F.2d at 370 (quoting Weinstein v. Bradford,
423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per
curiam)).'* This introduces some complications. Who should
14. The Supreme Court recently stated that “a defendant
claiming that its voluntary compliance moots a case bears the
formidable burden of showing that it is absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur.”
Friends of the Earth, U.S. at___, 120 S.Ct. at 709 (citing United
States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203,
89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). The President’s cessation of
the attack on Yugoslavia was not “voluntary” within the Court’s
meaning; the war ended because the United States won, not because
the President sought to avoid litigation.
37a
Appendix A
be considered the “same complaining parties”? And what is
the “same action again”?
The same “complaining parties” must refer to the
individual Members of Congress who brought this suit. They
have sued in their official capacity and, as in Karcher v. May,
484 U.S. 72, 79-81, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987),
the injury they allege relates to their conduct as legislators.
Thus, in assessing the likelihood of a recurrence of “the same
action,” the inquiry must be restricted only to the period in
which these Congressmen would likely remain in office. As
to the “same action,” this refers to President Clinton’s alleged
violation of the War Powers Resolution by continuing
hostilities for more than 60 days without Congress’s
affirmative approval. How likely is that to recur? Not very,
if history is any guide. 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
15. “The 1998 air attack against Afghanistan and Sudan, the
December 1998 air attacks against Iraq, the 1995 air assault against
the Bosnian Serbs, the 1994 Haitian invasion, the 1991 Persian Gulf
War, the 1989 Panama invasion, the 1986 air attack against Libya,
the 1983 Grenada attack were all completed in less than 60 days.”
Reply Brief for Plaintiffs-Appellants at 5-6.
38a
Appendix A
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.
39a
Appendix A
ADDENDUM
Veto of War Powers Resolution
The President’s Message to the House of
Representatives Returning H.J. Res. 542 Without
His Approval. October 24, 1973
To the House of Representatives:
I hereby return without my approval House Joint
Resolution 542 — the War Powers Resolution. While I am
in accord with the desire of the Congress to assert its proper
role in the conduct of our foreign affairs, the restrictions
which this resolution would impose upon the authority of
the President are both unconstitutional and dangerous to the
best interests of our Nation.
The proper roles of the Congress and the Executive in
the conduct of foreign affairs have been debated since the
founding of our country. Only recently, however, has there
been a serious challenge to the wisdom of the Founding
Fathers in choosing not to draw a precise and detailed line
of demarcation between the foreign policy powers of the two
branches.
The Founding Fathers understood the impossibility of
foreseeing every contingency that might arise in this complex
area. They acknowledged the need for flexibility in
responding to changing circumstances. They recognized that
foreign policy decisions must be made through close
cooperation between the two branches and not through rigidly
codified procedures.
40a
Appendix A
These principles remain as valid today as they were when
our Constitution was written. Yet House Joint Resolution
542 would violate those principles by defining the President's
powers in ways which would strictly limit his constitutional
authority.
Clearly Unconstitutional
House Joint Resolution 542 would attempt to take away,
by a mere legislative act, authorities which the President has
properly exercised under the Constitution for almost 200
years. One of its provisions would automatically cut off
certain authorities after sixty days unless the Congress
extended them. Another would allow the Congress to
eliminate certain authorities merely by the passage of a
concurrent resolution — an action which does not normally
have the force of law, since it denies the President his
constitutional role in approving legislation.
I believe that both these provisions are unconstitutional.
The only way in which the constitutional powers of a branch
of the Government can be altered is by amending the
Constitution — and any attempt to make such alterations by
legislation alone is clearly without force.
Undermining Our Foreign Policy
While I firmly believe that a veto of House Joint
Resolution 542 is warranted solely on constitutional grounds,
I am also deeply disturbed by the practical consequences of
this resolution. For it would seriously undermine this
Nation’s ability to act decisively and convincingly in times
4la
Appendix A
of international crisis. As a result, the confidence of our allies
in our ability to assist them could be diminished and the
respect of our adversaries for our deterrent posture could
decline. A permanent and substantial element of
unpredictability would be injected into the world’s
assessment of American behavior, further increasing the
likelihood of miscalculation and war.
If this resolution had been in operation, America’s
effective response to a variety of challenges in recent years
would have been vastly complicated or even made
impossible. We may well have been unable to respond in
the way we did during the Berlin crisis of 1961, the Cuban
missile crisis of 1962, the Congo rescue operation in 1964,
and the Jordanian crisis of 1970 — to mention just a few
examples. In addition, our recent actions to bring about a
peaceful settlement of the hostilities in the Middle East would
have been seriously impaired if this resolution had been in
force.
While all the specific consequences of House Joint
Resolution 542 cannot yet be »redicted, it is clear that it
would undercut the ability of the United States to act as an
effective influence for peace. For example, the provision
automatically cutting off certain authorities after 60 days
unless they are extended by the Congress could work to
prolong or intensify a crisis. Until the Congress suspended
the deadline, there would be at least a chance of United States
withdrawal and an adversary would be tempted therefore to
postpone serious negotiations until the 60 days were up. Only
after the Congress acted would there be a strong incentive
for an adversary to negotiate. In addition, the very existence
42a
Appendix A
of a deadline could lead to an escalation of hostilities in order
to achieve certain objectives before the 60 days expired.
The measure would jeopardize our role as a force for
peace in other ways as well. It would, for example, strike
from the President’s hand a wide range of important
peace-keeping tools by eliminating his ability to exercise
quiet diplomacy backed by subtle shifts in our military
deployments. It would also cast into doubt authorities which
Presidents have used to undertake certain humanitarian relief
missions in conflict areas, to protect fishing boats from
seizure, to deal with ship or aircraft hijackings, and to
respond to threats of attack. Not the least of the adverse
consequences of this resolution would be the prohibition
contained in section 8 against fulfilling our obligations under
the NATO treaty as ratified by the Senate. Finally, since the
bill is somewhat vague as to when the 60 day rule would
apply, it could lead to extreme confusion and dangerous
disagreements concerning the prerogatives of the two
branches, seriously damaging our ability to respond to
international crises.
Failure to Require Positive Congressional Action
I am particularly disturbed by the fact that certain of the
President’s constitutional powers as Commander in Chief
of the Armed Forces would terminate automatically under
this resolution 60 days after they were invoked. No overt
Congressional action would be required to cut off these
powers — they would disappear automatically unless the
Congress extended them. In effect, the Congress is here
attempting to increase its policy-making role through a
43a
Appendix A
provision which requires it to take absolutely no action at
all.
In my view, the proper way for the Congress to make
known its will on such foreign policy questions is through a
positive action, with full debate on the merits of the issue
and with each member taking the responsibility of Casting a
yes or no vote after considering those merits. The
authorization and appropriations process represents one of
the ways in which such influence can be exercised. I do not,
however, believe that the Congress can responsibly
contribute its considered, collective judgment on such grave
questions without full debate and without a yes or no vote.
Yet this is precisely what the joint resolution would allow.
It would give every future Congress the ability to handcuff
every future President merely by doing nothing and sitting
still. In my view, one cannot become a responsible partner
unless one is prepared to take responsible action.
Strengthening Cooperation Between the Congress and
the Executive Branches
The responsible and effective exercise of the war powers
requires the fullest cooperation between the Congress and
the Executive and the prudent fulfillment by each branch of
its constitutional responsibilities. House joint Resolution 542
includes certain constructive measures which would foster
this process by enhancing the flow of information from the
executive branch to the Congress. Section 3, for example,
calls for consultations with the Congress before and during
the involvement of the United States forces in hostilities
abroad. This provision is consistent with the desire of this
44a
Appendix A
Administration for regularized consultations with the
Congress in an even wider range of circumstances.
| believe that full and cooperative participation in foreign
policy matters by both the executive and the legislative
branches could be enlhanced by a careful and dispassionate
study of their constituttional roles. Helpful proposals for such
a study have already been made in the Congress. I would
welcome the establismment of a non-partisan commission on
the constitutional roles of the Congress and the President in
the conduct of foreigm affairs. This commission could make
a thorough review off the principal constitutional issues in
Executive-Congressional relations, including the war powers,
the international agreement powers, and the question of
Executive privilege, and then submit its recommendations
to the President and the Congress. The members of such a
commission could be drawn from both parties — and could
represent many perspectives including those of the Congress,
the executive branch,, the legal profession, and the academic
community.
This Administration is dedicated to strengthening
cooperation betweem the Congress and the President in the
conduct of foreign affairs and to preserving the constitutional
prerogatives of both branches of our Government. I know
that the Congress shares that goal. A commission on the
constitutional roles of the Congress and the President would
provide a useful opportunity for both branches to work
together toward thatt common objective.
RICHARD NIXON
The White House,
October 24, 1973.
45a
Appendix A
TATEL, Circuit Judge, concurring:
Although I agree with Judge Silberman that Raines v.
Byrd, 521 U.S. 811, 117S.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. See supra (Silberman, J.,
concurring). In my view, were this case brought by plaintiffs
with standing, we could determine whether the President, in
undertaking the air campaign in Yugoslavia, exceeded his
authority under the Constitution or the War Powers
Resolution.
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.
46a
Appendix A
Since the earliest years of the nation, courts have not
hesitated to determine when military action constitutes
“war.” In Bas v. Tingy, 4 U.S. (4 Dall.) 37, 1 L.Ed. 731
(1800), the Supreme Court had to decide whether hostilities
between France and the United States amounted to a state of
war in order to resolve disputes over captured ships. Because
outright war had not been declared, the justices examined
both the facts of the conflict (“the scene of bloodshed,
depredation and confiscation, which has unhappily
occurred,” id. at 39) and/ the acts of Congress that had
authorized limited military action:
In March 1799, congress had raised an army;
stopped all intercourse with France; dissolved our
treaty; built and equipt ships of war; and
commissioned private armed ships; enjoining the
former, and authorising the latter, to defend
themselves against the armed ships of France, to
attack them on the high seas, to subdue and take
them as prize, and to re-capture armed vessels
found in their possession.
Id. at 41. Given these events, Justice Bushrod Washington
concluded that France and the United States were at war both
“ijn fact and in law.” Id. at 42. “If they were not our
enemies,” he said, “I know not what constitutes an enemy.”
Id. at 41. One year later, Chief Justice Marshall, focusing on
the same conflict with France, said: “The whole powers of
war being, by the constitution of the United States, vested
in congress, the acts of that body can alone be resorted to as
our guides in this enquiry. . . . To determine the real situation
of America in regard to France, the acts of congress are to
47a
Appendix A
be inspected.” Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 28, 2
L.Ed. 15 (1801).
Half a century later, in The Prize Cases, 67 U.S. (2 Black)
635, 666, 17 L.Ed. 459 (1862), the Court had to determine
whether a state of war, though undeclared, existed “de facto”
between the United States and the confederacy, and if so,
whether it justified the U.S. naval blockade of confederate
ports. “As a civil war is never publicly proclaimed, .. . its
actual existence is a fact in our domestic history which the
Court is bound to notice and to know.” Id. at 667. There was
no formal declaration of war, the Court explained, because
the Constitution does not permit Congress to “declare war
against a State, or any number of States.” Id. at 668. Yet the
Court, guided by the definition of war as “[{t]hat state in which
a nation prosecutes its right by force,” id. at 666, determined
that a state of war actually existed.
A civil war is never solemnly declared; it becomes
such by its accidents — the number, power, and
organization of the persons who originate and
carry it on. When the party in rebellion occupy
and hold in a hostile manner a certain portion of
territory; have declared their independence; have
cast off their allegiance; have organized armies;
have commenced hostilities against their former
sovereign, the world acknowledges them as
belligerents, and the contest a war.
Id. at 666-67. In making this determination, the Court looked
to the facts of the conflict, id., to the acts of foreign
governments recognizing the war and declaring their
48a
Appendix A
neutrality, id. at 669, and to congressional action authorizing
the President’s use of force, id. at 670-71. Given these facts,
the Court refused “to affect a technical ignorance of the
existence of a war, which all the world acknowledges to be
the greatest civil war known in the history of the human race.”
Id. at 669.
More recent cases have also recognized the competence
of courts to determine whether a state of war exists.
Responding to a challenge to the constitutionality of the
Vietnam War, this circuit confronted “the critical question
. whether the hostilities in Indo-China constitute in the
Constitutional sense a ‘war,’ both within and beyond the
meaning of that term in Article I, Section 8, Clause 11.”
Mitchell v. Laird, 488 F.2d 611, 614 (D.C.Cir.1973)
(emphasis added). The court found “no insuperable difficulty
in a court determining whether,” given the extent of the
hostilities, “there has been a war in Indo-China.” Id. Once
the war was recognized as such, the court saw no problem in
“facing up to the question as to whether because of the war’s
duration and magnitude the President is or was without power
to continue the war without Congressional approval,” or
“whether Congress has given, in a Constitutionally
satisfactory form, the approval requisite for a war of
considerable duration and magnitude.” Id. Nor did the court
hesitate to determine that once the Gulf of Tonkin resolution
had been repealed, later congressional actions appropriating
funds for the war and extending the draft were insufficient
to “serve as a valid assent to the Vietnam war.” Id. at 615.
Given this absence of congressional approval for the war’s
continuation, the President had a duty to try “in good faith
and to the best of his ability, to bring the war to an end as
49a
Appendix A
promptly as was consistent with the safety of those fighting
and with a profound concern for the durable interests of the
nation — its defense, its honor, its morality.” Id. at 616.
Although the court ultimately declined to answer the question
whether President Nixon was in fact fulfilling his duty to
end the Vietnam War, see id., it nonetheless made clear that
courts are competent to adjudge the existence of war and the
allocation of war powers between the President and
Congress. Regardless of whether this language is dicta, see
supra at 25 (Silberman, J., concurring), Mitchell supports
my view that this court could resolve the war powers claims
presented here. See also, e.g., Massachusetts v. Laird, 451
F.2d 26, 34 (1st Cir.1971) (“The war in Vietnam is a product
of the jointly supportive actions of the two branches to whom
the congeries of the war powers have been committed.
Because the branches are not in opposition, there is no
necessity of determining boundaries. Should either branch
be opposed to the continuance of hostilities, however, and
present the issue in clear terms, a court might well take a
different view.”); Orlando v. Laird, 443 F.2d 1039, 1042
(2d Cir.1971) (“[T]he constitutional delegation of the war-
declaring power to the Congress contains a discoverable and
manageable standard imposing on the Congress a duty of
mutual participation in the prosecution of war. Judicial
scrutiny of that duty, therefore, is not foreclosed by the
political question doctrine.”); Berk v. Laird, 429 F.2d 302,
305 (2d Cir.1970) (“History makes clear that the
congressional power ‘to declare War’ conferred by Article
I, section 8, of the Constitution was intended as an explicit
restriction upon the power of the Executive to initiate war
on his own prerogative which was enjoyed by the British
sovereign. ... [E]xecutive officers are under a threshold
50a
Appendix A
constitutional duty which can be judicially identified and its
breach judicially determined.”) (internal quotation marks and
brackets omitted).
Without undue difficulty, courts have also determined
whether hostilities amount to “war” in other contexts. These
have included insurance policies and other contracts, see,
e.g., Western Reserve Life Ins. Co. v. Meadows, 152 Tex.
559, 567, 261 S.W.2d 554, 559 (1953) (“We are unwilling
in deciding this case to shut our eyes to what everyone knows,
that there has been . . . actually and in reality a war in Korea
in which the United States has been seriously engaged.”’);
Pan Am. World Airways, Inc. v. Aetna Casualty & Sur. Co.,
505 F.2d 989, 1012-15 (2d Cir.1974); Navios Corp. v. The
Ulysses II, 161 F.Supp. 932 (D.Md.1958), aff'd, 260 F.2d
959 (4th Cir.1958), the Federal Tort Claims Act, see, e.g.,
Koohi v. United States, 976 F.2d 1328 (9th Cir.1992) (noting
that even absent a formal declaration, “no one can doubt that
a state of war existed when our armed forces marched first
into Kuwait and then into Iraq”); Rotko v. Abrams, 338
F.Supp. 46, 47-48 (D.Conn.1971), aff'd, 455 F.2d 992 (2d
Cir.1972), and provisions of military criminal law applicable
“in time of war,” see, e.g., United States v. Anderson, 17
U.S.C.M.A. 588, 1968 WL 5425 (1968); United States v.
Ayers, 4 U.S.C.M.A. 220, 1954 WL 2280 (1954).
Although courts have thus determined the existence of
war as defined by the Constitution, statutes, and contracts,
in this case plaintiffs’ War Powers Resolution claim would
not even require that we do so. We would need to ask only
whether, and at what time, “United States Armed Forces
[were] introduced into hostilities or into situations where
Sla
Appendix A
imminent involvement in hostilities [was] clearly indicated
by the circumstances.” 50 U.S.C. § 1543(a)(1). On this
question, the record is clear. In his report to the Speaker of
the House and the President pro tempore of the Senate,
transmitted “consistent with the War Powers Resolution,”
President Clinton stated: “on March 24, 1999, U.S. military
forces, at my direction. . . began a series of air strikes in the
Federal Republic of Yugoslavia. .. .” 35 Weekly Comp. Pres.
Doc. 527 (March 26, 1999), available at 1999 WL 12654381.
Pursuant to the priority procedures of the War Powers
Resolution, 50 U.S.C. §§ 1545-46, both houses of Congress
responded by expediting consideration of resolutions to
declare war, H.J. Res 44, to authorize airstrikes, S.J. Res.
20, and to withdraw troops, H. Con. Res. 82. Defense
Secretary William Cohen told the Senate Armed Services
Committee: “We’re certainly engaged in hostilities, we’re
engaged in combat.” Hearing on Kosovo, Senate Armed
Services Comm., 106th Cong., April 15, 1999, 1999 WL
221637 (testimony of William Cohen, Secretary of Defense).
President Clinton issued an Executive Order designating the
region a U.S. combat zone and March 24 as “the date of the
commencement of combatant activities in such zone.” Exec.
Order No. 13,119, 64 Fed.Reg. 18797 (Apr. 13, 1999).
The undisputed facts of this case are equally compelling
with respect to plaintiffs’ constitutional claim. If in 1799
the Supreme Court could recognize that sporadic battles
between American and French vessels amounted to a state
of war, and if in 1862 it could examine the record of
hostilities and conclude that a state of war existed with the
confederacy, then surely we, looking to similar evidence,
could determine whether months of daily airstrikes involving
52a
Appendix A
800 U.S. aircraft flying more than 20,000 sorties and causing
thousands of enemy casualties amounted to “war” within the
meaning of Article I, section 8, clause 11.
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.
Nor is the question nonjusticiable because the President,
as Commander in Chief, possesses emergency authority to
use military force to defend the nation from attack without
obtaining prior congressional approval. Judge Silberman’s
suggestion notwithstanding, see supra at 27-28 (Silberman,
J., concurring), President Clinton does not claim that the air
campaign was necessary to protect the nation from imminent
attack. In his report to Congress, the President explained that
the military action was “in response to the FRY government’s
continued campaign of violence and repression against the
ethnic Albanian population in Kosovo.” 35 Weekly Comp.
Pres. Doc. 527 (Mar. 26, 1999), available at 1999 WL
12654381. Although the President also said that military
action would prevent an expanded war in Europe, see Radio
Address of the President to the Nation, March 27, 1999,
available at 1999 WL 170552, he never claimed that an.
emergency required him to act without congressional
authorization; in fact, the Kosovo issue had been festering
53a
Appendix A:
for years. See Declaration of Thomas Pickering,
Undersecretary of State for Political Affairs, JA at 21.
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 vio!ate
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. .. .” INS v. Chadha, 462 U.S. 919,
942-43, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). See also
Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d
663 (1962) (“The doctrine . . . is one of ‘political questions,’
not one of ‘political cases.’ The courts cannot reject as ‘no
law suit’ a bona fide controversy as to whether some action
S4a
Appendix A
denominated ‘political’ exceeds constitutional authority.”’).
This is so even where, as here (and as in the other cases
discussed above), the issue relates to foreign policy. See
Baker, 369 U.S. at 211, 82 S.Ct. 691 (“[I]t is error to suppose
that every case or controversy which touches foreign relations
lies beyond judicial cognizance’”’). If “we-cannot shirk [our]
responsibility” to decide whether an Act of Congress requires
the President to impose economic sanctions on a foreign
nation for diminishing the effectiveness of an international
treaty, a question rife with “political overtones,” Japan
Whaling Ass’n, 478 U.S. at 230, 106 S.Ct. 2860, then surely
we cannot shirk our responsibility to decide whether the
President exceeded his constitutional or statutory authority
by conducting the air campaign in Yugoslavia.
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).
55a
APPENDIX B — OPINION OF THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF
COLUMBIA DATED JUNE 8, 1999
Tom CAMPBELL, et al.,
Plaintiffs,
vs
William Jefferson CLINTON, President of the
United States,
Defendant.
No. Civ.A. 99-1072 PLF.
United States District Court,
District of Columbia.
June 8, 1999.
* * *
OPINION
PAUL L. FRIEDMAN, District Judge.
Since March 24, 1999, the United States has been
participating in an air offensive launched by the North
Atlantic Treaty Organization against the Federal Republic
of Yugoslavia. Plaintiffs, twenty-six members of the United
States House of Representatives, seek a declaration that the
President has violated the War Powers Clause of the
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Appendix B
Constitution and the War Powers Resolution, 50 U.S.C.
§ 1541, et seq., by involving the United States in the air
offensive without congressional authorization. The defendant
is the President of the United States, who has filed a motion
to dismiss this action. Upon full consideration of the
defendant’s motion, plaintiffs’ opposition, the defendant’s
reply and the arguments presented by counsel at the hearing
held on June 3, 1999, and for the reasons stated below, the
Court concludes that plaintiffs do not have standing to raise
these claims. The motion to dismiss therefore will be granted.
I. BACKGROUND
A. Constitutional and Statutory Framework
The War Powers Clause of the United States Constitution
provides Congress with the power to “declare War... .” U.S.
Constitution, Art. I, § 8, cl. 11. Congress’ power to declare
war works in conjunction with the authority granted to the
President under the Constitution to act as “Commander in
Chief of the Army and Navy of the United States, and of the
Militia of the several States, when called into the actual
Service of the United States.” U.S. Constitution, Art. II, § 2,
cl. 1. The Constitution does not further delineate the precise
scope of the powers granted to the executive and legislative
branches, but clearly the Framers intended to give each of
the two branches a role in the conduct of foreign affairs.
Essentially, Congress would declare war and raise and
financially maintain armies, while the President would
conduct wars.
In 1973, over President Richard Nixon’s veto, Congress
passed the War Powers Resolution, 50 U.S.C. § 1541,
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Appendix B
et. seq., in order to “fulfill the intent of the framers of the
Constitution of the United States and insure that the
collective judgment of both the Congress and the Presideni
will apply to the introduction of United States Armed Forces
into hostilities, or into Situations where imminent
involvement in hostilities is clearly indicated by the
circumstances, and to the continued use of such forces in
hostilities or in such situations.” 50 U.S.C. § 1541(a). The
purpose of the resolution was to ensure that the
“constitutional powers of the President as Commander-in-
Chief to introduce United States Armed Forces into
hostilities, or into situations where imminent involvement
in hostilities is clearly indicated by the circumstances, are
exercised only pursuant to (1) a declaration of war, (2)
specific statutory authorization, or (3) a national emergency
created by attack upon the United States, its territories or
possessions, or its armed forces.” 50 U.S.C. § 1541(c).
The War Powers Resolution provides, inter alia, that
“[i]n the absence of a declaration of war, in any case in which
United States Armed Forces are introduced (1) into hostilities
or into situations where imminent involvement in hostilities
is clearly indicated by the circumstances; (2) into the
territory, airspace or waters of a foreign nation while
equipped for combat, except for deployments which relate
solely to supply, replacement, repair, or training of such
forces; or (3) in numbers which substantially enlarge United
States Armed Forces equipped for combat already located
in a foreign nation; the President shall submit within 48
hours” to the Speaker of the House of Representatives and
to the President pro tempore of the Senate a written report
setting forth the circumstances necessitating the introduction
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Appendix B
of forces, the constitutional and legislative authority to
- introduce the forces and the estimated scope and duration of
the hostilities or involvement. 50 U.S.C. § 1543(a). The
President also is required to submit periodic reports, at least
every six months, for as long as the forces remain engaged
in hostilities. 50 U.S.C. § 1543(c).
Within sixty calendar days after the President either
submits a report pursuant to Section 1543(a) or is required
to have submitted a report, the President must terminate the
use of the United States Armed Forces described in Section
1543 unless Congress (1) has declared war or has provided
specific authorization for the use of such forces, (2) has
extended by law the sixty-day time period, or (3) is physically
unable to meet as a result of an armed attack on the United
States. 50 U.S.C. § 1544(b). The President may extend the
sixty day period an additional thirty days if he determines
and certifies in writing to the Congress that the continued
use of forces for the additional time is necessary to safely
remove the United States Armed Forces. Id. The War Powers
Resolution also sets forth a mechanism so that both houses
of Congress are required to give priority consideration to
any resolution or bill that would provide the President with
the authorization described above. See 50 U.S.C. §§ 1545,
1546, 1546a.
Finally, the War Powers Resolution explicitly provides
that authority to introduce forces into hostilities shall not be
inferred “from any provision of law ... including any
provision contained in any appropriations Act, unless such
provision specifically authorizes the introduction of United
States Armed Forces into hostilities or into such situations
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Appendix B
and states that it is intended to constitute specific statutory
authorization within the meaning of [the War Powers
Resolution],” or “from any treaty ... unless such treaty is
implemented by legislation specifically authorizing the
introduction of United States Armed Forces into hostilities
or into such situations and stating that it is intended to
constitute specific statutory authorization within the meaning
of [the War Powers Resolution].” 50 U.S.C. § 1547(a)
(emphasis added).
B. Conflict with Federal Republic of Yugoslavia
Kosovo, a region of Serbia, historically has been
inhabited both by ethnic Albanians and by ethnic Serbs. See
Def’s Motion to Hold in Abeyance, Att. A (Declaration of
Under Secretary of State for Political Affairs Thomas R.
Pickering) at ¥ 3. The region gained a considerable degree
of autonomy through the 1970’s, and by the late 1980’s ethnic
Albanians constituted an “overwhelming majority of the
population in Kosovo.” Id. at § 4. When Slobodan Milosevic
came to power in Serbia in the late 1980’s, he abolished the
autonomous status of the province, and Kosovo’s ethnic
Albanians began taking various non-violent measures to
resist Milosevic and the authoritarian rule of Serbia. Id. at
5. In early 1998, Serbia launched a crackdown in Kosovo,
killing dozens of ethnic Albanians and Causing thousands to
flee the Kosovo region. Id. at § 8.
Throughout 1998 and into the beginning of 1999, the
United States in partnership with NATO member countries
and other allies sought a diplomatic resolution to the conflict
between the ethnic Albanians in Kosovo and Milosevic’s
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Appendix B
government, and it imposed various economic sanctions
against the Federal Republic of Yugoslavia in an effort to
force a resolution. See Pickering Declaration at 4 11-14.
After the massacre of forty-five ethnic Albanian civilians in
January 1999, diplomatic efforts intensified, and the Kosovo
Albanians and representatives of the Serbian government
participated in peace negotiations in Rambouillet, France in
February 1999. Id. at JJ 14, 15. On March 15, 1999, the.
Kosovo Albanian delegation signed the interim agreement
that had been proposed in Rambouillet, but three days later
negotiations were suspended because the Serbian delegation
refused to accept the interim agreement. Id. at | 17. By March
19, 1999, the tempo of the repressive offensive by
Milosevic’s armed units had intensified. Id. at § 18.
Milosevic’s forces drove thousands of ethnic Albanians from
their homes and villages, summarily executed some,
displaced others and burned many of their villages. Id.
On March
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