# Petition for Writ of Certiorari — Campbell v. Clinton

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 815

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1058%3A1. Public record. Not legal advice.