War Powers Litigation Initiated by Members of Congress Since the Enactment of the War Powers Resolution

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War Powers Litigation Initiated by Members

of Congress Since the Enactment of the

War Powers Resolution

-name redactedLegislative Attorney

February 17, 2012

Congressional Research Service

7-....

www.crs.gov

RL30352

CRS Report for Congress

Prepared for Members and Committees of Congress

War Powers Litigation Initiated by Members of Congress

Summary

Article I, Section 8, of the Constitution confers on Congress the power to “declare War.” Modern

Presidents, however, have contended that, notwithstanding this clause, they do not need

congressional authorization to use force. Partly in response to that contention, and because of

widespread concern that Congress had allowed its war power to atrophy in the Korean and

Vietnam conflicts, Congress in 1973 enacted the War Powers Resolution (WPR; P.L. 93-148).

Among other things, the WPR generally requires the President to report to Congress within 48

hours when, absent a declaration of war, U.S. Armed Forces are introduced into “hostilities or ...

situations where imminent involvement in hostilities is clearly indicated by the circumstances.”

After a report is submitted or required to be submitted, the WPR requires that the forces be

withdrawn within 60 days (90 days in specified circumstances) unless Congress declares war or

otherwise authorizes their continued involvement.

Nonetheless, subsequent Presidents have continued to maintain that they have sufficient authority

independent of Congress to initiate the use of military force, and several Presidents have viewed

aspects of the WPR as unconstitutionally infringing upon their Commander-in-Chief authority.

Congress has on four occasions enacted authorizations specifically waiving the 60-90 day

limitation on the use of force otherwise imposed by the WPR. But on eight occasions Members of

Congress have filed suit to force various Presidents to comply with WPR requirements or

otherwise to recognize Congress’s war powers under the Constitution. In seven of the eight cases

where final rulings were issued, the courts have found reasons not to render a decision on the

merits of the plaintiffs’ claims. In one case, involving the President’s authority to pursue military

action against Iraq following congressional authorization, the court ruled on the merits of the

plaintiffs’ claim concerning the constitutionality of this authorization, but dismissed all other

claims on jurisdictional grounds. The courts have variously found the political question doctrine,

the equitable/remedial discretion doctrine, the issue of ripeness, and the question of congressional

standing to preclude judicial resolution of the matter. Although the courts have not ruled out the

possibility that a conflict over the use of force between Congress and the President could require

a judicial resolution, they have thus far deemed the matter to be one for the political branches to

resolve.

On June 15, 2011, 10 Members of Congress brought suit in federal court seeking a declaratory

judgment that U.S. military operations against Libya violated Congress’s constitutional power to

declare war, and also requested a judicial order enjoining further operations against Libya absent

a declaration of war. The reviewing federal district court dismissed the case on jurisdictional

grounds due to lack of standing.

This report summarizes the eight cases initiated by Members of Congress in which final rulings

were reached, which concerned U.S. military activities in El Salvador, Nicaragua, and Grenada;

military action taken during the Persian Gulf conflict between Iraq and Iran; U.S. activities in

response to Iraq’s invasion of Kuwait (prior to the congressional authorization); U.S. participation

in NATO’s action in Kosovo and Yugoslavia; and U.S. military action in Libya. This report will

be updated as circumstances warrant.

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Contents

Introduction...................................................................................................................................... 1

El Salvador....................................................................................................................................... 3

Nicaragua......................................................................................................................................... 4

Grenada............................................................................................................................................ 5

Persian Gulf Conflict Between Iran and Iraq................................................................................... 6

Iraq’s Invasion of Kuwait ................................................................................................................ 7

NATO’s Air War in Kosovo and Yugoslavia.................................................................................... 8

Regime Change and Disarmament in Iraq ..................................................................................... 12

NATO-Led Military Action Against Libya .................................................................................... 14

Conclusion ..................................................................................................................................... 15

Contacts

Author Contact Information........................................................................................................... 16

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War Powers Litigation Initiated by Members of Congress

Introduction1

Eight times since the enactment of the War Powers Resolution in 1973,2 Members of Congress

have filed suit to force various Presidents to comply with its requirements or otherwise to

recognize Congress’s war powers under the Constitution. In each instance where a ruling was

delivered, the reviewing court refused to render a decision on the merits.3 In four of these cases,

the suits foundered on the political question or equitable discretion doctrines, which the federal

courts use to insulate themselves from what they view as essentially political disputes. In two

other cases the suit failed on grounds of standing, and in two other cases the suits foundered on

the ripeness doctrine. Most recently, 10 Members of Congress filed suit to enjoin U.S. military

operations against Libya in the absence of a declaration of war, but the reviewing federal district

court dismissed the case on jurisdictional grounds due to lack of standing.

Article I, Section 8, of the Constitution confers on Congress the power to “declare War,” and

Congress has enacted declarations eleven times in American history. It has also enacted a number

of authorizations for the use of military force not rising to the level of a declaration of war.4

Nonetheless, concern that Congress had allowed its war power to atrophy in the contexts of the

Cold War and the wars in Korea and Vietnam led to the enactment in 1973, over President

Nixon’s veto, of the War Powers Resolution (WPR; P.L. 93-148). The legislation’s supporters

hoped that its enactment would ensure that a national consensus precedes the use of U.S. Armed

Forces in hostilities. Accordingly, the WPR requires the President to consult with Congress “in

every possible instance” prior to introducing U.S. Armed Forces into hostilities and to report to

Congress within 48 hours when, absent a declaration of war, U.S. Armed Forces are introduced

into “hostilities or ... situations where imminent involvement in hostilities is clearly indicated by

the circumstances.”5 After this report is submitted (or after such date that it was required to be

submitted), the WPR requires that U.S. troops be withdrawn at the end of 60 days (90 days in

certain circumstances), unless Congress authorizes continued involvement by passing a

declaration of war or some other specific authorization for continued U.S. involvement in

hostilities.6

Several Presidents have viewed aspects of the War Powers Resolution as unconstitutionally

trenching upon their constitutional authorities in matters of war and foreign relations.7

An earlier version of this report was prepared by (name redacted), Legislative Attorney, CRS.

P.L. 93-148 (November 7, 1973); 87 Stat. 555; 50 U.S.C. §§1541 et seq. (1994).

But see infra Doe v. Bush, 323 F.3d 133 (1st Cir. 2003) (affirming lower court’s dismissal of some of plaintiffs’

claims on ripeness grounds, but also rejecting on the merits a contention that Congress in the “Authorization for the

Use of Force Against Iraq Resolution of 2002” had unconstitutionally delegated its war-declaring power to the

President).

For a thorough review of Congress’s actions in enacting declarations of war and otherwise authorizing the use of

force, along with the legal consequences of these actions, see CRS Report RL31133, Declarations of War and

Authorizations for the Use of Military Force: Historical Background and Legal Implications, by (name redacted) and

(name redacted).

50 U.S.C. §1543.

Id. at §1544. The sixty-day period may be extended by no more than thirty additional days if the President certifies in

writing to Congress that “unavoidable military necessity respecting the safety” of U.S. forces compels the continued

use of such forces in the course of bringing about their withdrawal. Id.

See generally Dept. of Justice, Office of Legal Counsel, Authority of the President under Domestic and International

Law to Use Military Force against Iraq, 26 Op. O.L.C. 1, 39-45 (2002) [hereinafter “2002 OLC Opinion”] (discussing

presidential views and Dept. of Justice opinions concerning the constitutionality of the War Powers Resolution). The

(continued...)

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Nonetheless, Presidents from Ford to Obama have submitted more than 125 reports to Congress

giving notice of the involvement of U.S. Armed Forces in hostile situations, as is required under

the War Powers Resolution.8 With one exception, however, all of these reports have characterized

themselves as being “consistent with,” rather than pursuant to, the requirements of the War

Powers Resolution. This language appears intended to leave open the question as to whether the

executive recognizes the reported activities to fall under the purview of the War Powers

Resolution, or perhaps whether the executive deems the Resolution’s requirements to be legally

binding upon it.9 The practice has frustrated numerous lawmakers and has led some to pursue

other avenues, including litigation, to compel the President to recognize the legal necessity of

obtaining congressional authorization for the use of force

Both the Members who have initiated suits and the White House have claimed that their

respective position will ultimately prevail if the courts ever pass judgment on the merits of the

controversy. But in the cases where final rulings have been issued, the reviewing courts have

found that neither side has taken steps that would give the courts a viable statutory or

constitutional issue to resolve, rather than a policy dispute. On the one hand, despite periodic

claims by the executive branch that it would welcome a court test, the Justice Department has

consistently raised threshold obstacles to court challenges such as Member standing to sue and

the political question doctrine—obstacles which have so far successfully forestalled judicial

rulings on the merits. On the other hand, litigation by Members of Congress to force a decision

has not been preceded by legislative actions that have been sufficient to create the “irreconcilable

conflict” between the executive and legislative branches that might make a judicial decision

possible, if not probable.

This report summarizes the eight suits that have been brought by Members of Congress since the

enactment of the War Powers Resolution which have alleged presidential noncompliance with the

Resolution or the requirements of the Constitution with respect to the involvement of U.S. Armed

Forces in El Salvador, Nicaragua, and Grenada; U.S. escort operations in the Persian Gulf; Iraq’s

(...continued)

Department of Justice’s Office of Legal Counsel (OLC) has noted that while it “has long questioned the

constitutionality of the WPR, ... [it had] not done so consistently.” Id. at 43 n.18. Indeed, in a 1980 opinion, the OLC

stated its view that “Congress may, as a general constitutional matter, place a 60-day limit on the use of our armed

forces as required by” the WPR. Id. (quoting Dept. of Justice, Office of Legal Counsel, Presidential Power to Use the

Armed Forces Abroad Without Statutory Authorization, 4A Op. O.L.C. 185, 196 (1980)), though it is not clear that

other Administrations have agreed with the OLC’s conclusion. See, e.g., 2002 OLC Opinion, supra, at 39-46. Although

OLC opinions are not legally binding, they are generally adhered to within the executive branch unless overruled by the

President or the Attorney General. In an interview describing the Obama Administration’s position that the WPR did

not prohibit U.S. operations against Libya which extended beyond the 60-day period, Administration officials

acknowledged that the 1980 OLC Opinion remains in effect, and also claimed that the Administration’s position that

the U.S. military operation was lawful was not premised on the view that the WPR is unconstitutional. Charlie Savage

and Mark Landler, White House Defends Continuing U.S. Role in Libya Operation, NEW YORK TIMES, June 16, 2011

(discussing interview with White House counsel Robert Bauer and State Department Legal Adviser Harold Koh).

See CRS Report RL33532, War Powers Resolution: Presidential Compliance, by (name redacted).

See Campbell v. Clinton, 203 F.3d 19, 25 (D.C. Cir. 2000) (Silberman, J., concurring) (rejecting the petitioners’

argument that the President, by submitting a report to Congress concerning U.S. activities in Kosovo, had implicitly

conceded that those activities fell under the purview of the WPR, because “the President only said the report was

‘consistent’ with the WPR”). See also Dept. of Justice, Office of Legal Counsel, Overview of the War Powers

Resolution, 8 Op. O.L.C. 271 (1984) (appearing to distinguish a report submitted “consistent with” the WPR from one

filed pursuant to its statutory requirements); Effective Date of the Reporting Requirement Imposed by the Multinational

Force In Lebanon Resolution, 7 Op. O.L.C. 197 (1983) (similar).

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invasion of Kuwait; NATO’s actions against Yugoslavia, Iraq’s noncompliance with its obligation

to disarm; and U.S. military operations against Libya.

El Salvador

In the 1982 case of Crockett v. Reagan,10 16 Senators and 13 House Members asked a federal

district court to declare that military aid supplied to the government of El Salvador by President

Reagan usurped Congress’s war powers under the Constitution and violated the War Powers

Resolution and the Foreign Assistance Act. In particular, the lawmakers charged that the

unreported dispatch of at least 56 members of the U.S. Armed Forces as military advisers to warracked El Salvador constituted a violation of the Resolution. The Reagan Administration moved

to dismiss the action on the grounds the suit involved a political question, and the district court

granted the motion. The U.S. Court of Appeals for the District of Columbia affirmed.

Examining the categories of political questions set forth by the Supreme Court in Baker v. Carr,11

the trial court rejected the Administration’s arguments that judicial resolution was inappropriate

because it would interfere with executive discretion in the foreign affairs field or because the suit

involved the apportionment of power between the executive and legislative branches. However, it

concluded, judicial resolution was inappropriate because there were no “judicially discoverable

and manageable standards for resolution” of the case:

The questions as to the nature and extent of the United States’ presence in El Salvador and

whether a report under the WPR is mandated because our forces have been subject to hostile

fire or are taking part in the war effort are appropriate for congressional, not judicial,

investigation. Further, in order to determine the application of the 60-day provision, the

Court would be required to decide at exactly what point in time U.S. forces had been

introduced into hostilities or imminent hostilities, and whether that situation continues to

exist. This inquiry would be even more inappropriate for the judiciary.

....

Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff’d per curiam, 720 F.2d 1355, 1357 (D.C.Cir. 1983), cert.

denied, 467 U.S. 1251 (1984).

369 U.S. 186 (1962). The Supreme Court in Baker identified the possible dimensions of the political question

doctrine as follows:

It is apparent that several formulations which vary slightly according to the settings in which the

questions arise may describe a political question, although each has one or more elements which

identify it as essentially a function of the separation of powers. Prominent on the surface of any

case held to involve a political question is found a textually demonstrable constitutional

commitment of the issue to a coordinate political department; or a lack of judicially discoverable

and manageable standards for resolving it; or the impossibility of deciding without an initial policy

determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s

undertaking independent resolution without expressing lack of respect due coordinate branches of

government; or an unusual need for unquestioning adherence to a political decision already made;

or the potentiality of embarrassment from multifarious pronouncements by various departments on

one question.

Id. at 217.

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The Court lacks the resources and expertise (which are accessible to the Congress) to resolve

disputed questions of fact concerning the military situation in El Salvador.12

The trial court contrasted the situation in El Salvador with the conflict in Vietnam, noting that the

latter conflict had persisted for seven years, resulted in more than 1 million deaths (including over

50,000 Americans), and involved the expenditure of $100 billion. In El Salvador, the court noted,

the American military personnel were relatively few in number and had suffered no casualties.

Accordingly, the court concluded, the question of whether U.S. forces had been introduced into

hostilities in El Salvador was less obvious than Vietnam, and “[t]he subtleties of fact-finding in

this situation should be left to the political branches.”13

The court declined to speculate about the kind of congressional actions that might give rise to a

judicially manageable issue, noting simply that “Congress has taken absolutely no action that

could be interpreted to have that effect.” However, it did state that “were Congress to pass a

resolution to the effect that a report was required under the WPR, or to the effect that the forces

should be withdrawn, and the President disregarded it, a constitutional impasse appropriate for

judicial resolution would be presented.”14

On appeal the U.S. Court of Appeals for the District of Columbia affirmed the dismissal in a brief

per curiam opinion “for the reasons stated by the District Court.” The Supreme Court

subsequently denied a petition of certiorari to review the decision.

Nicaragua

In Sanchez-Espinoza v. Reagan15 in 1983, 12 Members of the House of Representatives, 12

Nicaraguan citizens, and 2 United States citizens sued for damages, injunctive relief, and a

declaration that President Reagan and other executive officials violated various federal statutes,

including the War Powers Resolution, by supporting paramilitary operations designed to

overthrow the government of Nicaragua. A federal district court dismissed the litigation as raising

nonjusticiable political questions, and the U.S. Court of Appeals for the District of Columbia

again affirmed.

The district court stated as a predicate that the separation of powers doctrine affords the judiciary

a very limited role in matters related to foreign policy and national security, stating that such

matters are largely, if not exclusively, entrusted to the political branches. The court then examined

various benchmarks established by the Supreme Court for application of the political question

doctrine, and found three of the criteria established in Baker v. Carr, supra, for determining

whether a question falls into that category to be particularly relevant.

In accord with the Crockett decision, the district court held that resolution of the issue raised by

the congressional plaintiffs called for fact-finding that exceeded the court’s competence. In

political question terms, the court said that resolution of the issue raised by the lawmakers was

difficult if not impossible because of the lack of “judicially discoverable and manageable

558 F.Supp. at 898.

Id. at 899.

Sanchez-Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983), aff’d, 770 F.2d 202 (D.C. Cir. 1985).

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standards.”16 According to the court, the circumstances before it were even more egregious than

those in Crockett since “the covert activities of CIA operatives in Nicaragua and Honduras are

perforce even less judicially discoverable than the level of participation by U.S. military

personnel in hostilities in El Salvador.”17 In addition, the court stated, in light of the wide

differences between the President and Congress concerning Nicaraguan policy, “[a] second

reason for finding this matter non-justiciable is the impossibility of our undertaking independent

resolution without expressing a lack of the respect due coordinate branches of government.”18

Finally, the court averred, because Administration policy was under constant review at both ends

of Pennsylvania Avenue, attempts at a resolution by the judiciary presented a real danger of

embarrassment from multifarious pronouncements by various departments on the question of

U.S. involvement. “Such an occurrence,” it said, “would, undoubtedly, rattle the delicate

diplomatic balance that is required in the foreign affairs arena.”19

The U.S. Court of Appeals for the District of Columbia affirmed on appeal. With respect to the

claim of the congressional plaintiffs that the assistance given to the Nicaraguan Contra rebels by

the executive branch violated the Boland amendment forbidding the CIA and the Department of

Defense from providing any such assistance, the court noted that the Boland amendment was an

appropriations rider and had expired at the end of the 1983 fiscal year. As a consequence, it held

that the claim had to be dismissed as moot. With respect to the congressional plaintiffs’ claim that

the assistance to the Contras amounted to waging war and that, as a consequence, they had “been

deprived of their [constitutional] right to participate in the decision to declare war,” the appellate

court, citing Crockett, held that the “war powers issue presented a nonjusticiable political

question.”20 Future Justice Ginsburg, at the time an appellate court judge, filed an opinion

concurring in the latter ruling on the grounds the issue was “not ripe for judicial review.”21 She

stressed that the political branches had not as yet reached “a constitutional impasse” on the issue.

Congress, she said, has “formidable weapons at its disposal ... [b]ut no gauntlet has been thrown

down here by a majority of the Members of Congress.”22

Grenada

In Conyers v. Reagan,23 11 Members of the House challenged the President Reagan’s use of force

in Grenada as an executive usurpation of Congress’s war powers under the Constitution. The

federal district court dismissed the action on the basis of the doctrine of equitable/remedial

discretion, which counsels the courts to refrain from hearing cases brought by congressional

plaintiffs who can obtain substantial relief by legislative action. In particular, the court said,

568 F. Supp. at 600.

Id.

Id. The court noted in a footnote that another reason for dismissing the suit lay in the doctrine of equitable or

remedial discretion. As explained by the court, that doctrine counsels judicial restraint where the congressional

plaintiffs could obtain substantial relief through congressional action and the suit represents, as a consequence, a

“circumvent(ion of) the process of democratic decisionmaking.” See 568 F. Supp. 600-601, n. 5.

Sanchez-Espinoza, 770 F.2d at 210.

Id. at 210 (Ginsburg, J., concurring).

Id. at 211 (Ginsburg, J., concurring).

Conyers v. Reagan, 578 F. Supp. 324 (D.D.C. 1984), aff’d, 765 F.2d 1124 (D.C. Cir. 1985).

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“[w]hat is available to these plaintiffs are the institutional remedies afforded to Congress as a

body; specifically, The War Powers Resolution, appropriations legislation, independent legislation

or even impeachment....”24

On appeal the U.S. Court of Appeals for the District of Columbia affirmed largely on mootness

grounds because the invasion had been concluded. The congressional plaintiffs’ attempt on appeal

to raise the war powers issue because of the post-invasion presence of U.S. military personnel in

Grenada, the appellate court said, came too late and did not alter the moot character of the case.

Persian Gulf Conflict Between Iran and Iraq

In the 1987 case of Lowry v. Reagan,25 a federal district court dismissed an action brought by 110

Members of the House to compel President Reagan to file a report under the WPR in connection

with the initiation of U.S. escort operations of reflagged Kuwaiti oil tankers in the Persian Gulf

during the war between Iran and Iraq. The grounds for dismissal this time were both the equitable

discretion and political question doctrines. Once again, the U.S. Court of Appeals for the District

of Columbia affirmed.

Taking note of the divisions in Congress with respect to the applicability of the War Powers

Resolution and the wisdom of the escort operation, the district court observed: “Although styled

as a dispute between the legislative and executive branches of government, this lawsuit evidences

and indeed is a by-product of political disputes within Congress regarding the applicability of the

War Powers Resolution to the Persian Gulf situation.”26

The court also took note of several unsuccessful legislative efforts to force presidential

compliance with the law and to revise and strengthen the WPR, leading the court to conclude that

the plaintiffs’ “dispute is ‘primarily with [their] fellow legislators.’”27 Accordingly, the court said

it was proper as a matter of equitable discretion to withhold the exercise of jurisdiction and the

requested relief. It noted, however, that if Congress enacted legislation to enforce the Resolution

and the President ignored it, “a question ripe for judicial review” would be presented.28

Analyzing the complex international political situation as it impacted on the Gulf in light of the

benchmarks set by the Supreme Court in Baker v. Carr, discussed supra, the district court also

concluded “that plaintiffs’ request for declaratory relief presents a nonjusticiable political

question.”29 A judicial resolution of the matter, it said, would risk “the potentiality of

embarrassment ... from multifarious pronouncements by various departments on one question.”30

578 F. Supp. at 327 (internal citation omitted).

Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987), aff’d, No. 87-5426 (D.C. Cir. 1988).

Id. at 338.

Id. at 339.

Id.

Id. at 340.

Id. at 340, quoting Baker, 369 U.S. at 217.

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In an unpublished opinion, the U.S. Court of Appeals for the District of Columbia dismissed the

appeal on grounds the suit presented a nonjusticiable political question and on grounds of

mootness.31 By the time of its decision Iran and Iraq had agreed to a cease-fire.

Iraq’s Invasion of Kuwait

In the 1990 case of Dellums v. Bush,32 53 House Members and one Senator sought to enjoin

President George H. W. Bush from initiating an offensive attack against Iraq without first

obtaining congressional authorization. Iraq had invaded and occupied Kuwait in August, 1990,

and President Bush, with the sanction of the United Nations Security Council, had assembled a

massive military force in the vicinity with the apparent purpose of reversing that occupation. He

had not yet, however, sought or obtained congressional authorization for the use of force.33 In

those circumstances, the reviewing federal district court ruled that the issue was not yet ripe for

judicial decision and dismissed the case.

In contrast to the preceding decisions, the court concluded that neither the political question nor

the equitable/remedial discretion doctrines precluded it from resolving the issue presented by the

suit. It said that “in principle, an injunction may issue at the request of Members of Congress to

prevent the conduct of a war which is about to be carried on without congressional

authorization.”34 On the political question issue, it noted the plain language of the Constitution

authorizing Congress to declare war and the absence of any serious factual dispute that the

initiation of combat operations against Iraq by several hundred thousand troops would constitute

a war. It further asserted that the courts were not excluded from resolving suits merely because

they involved questions of foreign policy. On the remedial discretion issue, the court concluded,

without further explanation, that the plaintiffs “cannot gain substantial relief by persuasion of

their colleagues alone.”35

Nonetheless, the court refused to resolve the case on the merits on the grounds that not all the

elements necessary for a decision were yet present; that is, the case was not yet “ripe” for

decision. On the one hand, it noted, a majority of the Congress had taken no action on the matter

of whether congressional authorization was needed in this instance; the plaintiffs, it observed,

represented only about 10% of the Congress. On the other hand, it said, it was also not yet

irrevocably certain that the President intended to initiate a war against Iraq. Both elements, it

asserted, were necessary before a court could address the constitutional issue. It said that a

majority of Congress had to request relief “from an infringement on its constitutional wardeclaration power,” and the executive branch had to be shown to be committed to “a definitive

course of action.”36

No appeal was taken from this decision.

Lowry v. Reagan, No. 87-5426 (D.C. Cir. 1988).

Dellums v . Bush, 752 F.Supp. 1141 (D.D.C. 1990).

Such authorization was subsequently obtained via P.L. 102-1 (1991).

Dellums, 752 F.Supp. at 1149.

Id. (internal quotations omitted).

See id. at 1151-1152.

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NATO’s Air War in Kosovo and Yugoslavia

In 1999, 26 Members of the House initiated a suit in the case of Campbell v. Clinton,37 asking for

a declaratory judgment that U.S. participation in NATO’s military actions against Yugoslavia in

the Kosovo situation violated Congress’s constitutional power to declare war or otherwise

authorize military action and that the War Powers Resolution required the termination of U.S.

participation “no later than sixty calendar days after March 24, 1999” (the date NATO began

bombing Yugoslavia), unless Congress authorized continued U.S. involvement. A federal district

court dismissed the action on the grounds that the Members lacked standing to bring the suit, and

the U.S. Court of Appeals for the District of Columbia affirmed on the same grounds. The

Supreme Court denied a request to review the decision.

The district court noted that the House and Senate had taken a number of actions with respect to

NATO’s offensive in Yugoslavia. On March 23, 1999, the Senate had approved a concurrent

resolution authorizing the President to “conduct military air operations and missile strikes in

cooperation with our NATO allies against ... Yugoslavia” by a vote of 58-41. On March 24, the

day the attacks began, the court said, the House approved a resolution stating that it “supports the

members of the United States Armed Forces who are engaged in military operations against the

Federal Republic of Yugoslavia and recognizes their professionalism, dedication, patriotism, and

courage” by a vote of 424-1. On April 28 the House defeated a joint resolution declaring war on

Yugoslavia by a vote of 2-427; rejected the concurrent resolution that had been approved by the

Senate on a tie vote of 213-213; rejected a concurrent resolution directing the President to

withdraw U.S. Armed Forces from their involvement in the NATO campaign by a vote of 139290; and passed a bill barring the use of Department of Defense funds for the deployment of

ground forces in Yugoslavia without specific authorization by voice vote. Finally, the court noted

that Congress had enacted a supplemental emergency appropriations bill on May 20 providing

funds for the conflict in Yugoslavia but had not stated, as seemingly required to satisfy the War

Powers Resolution,38 that the measure constituted specific statutory authorization for the

continued involvement of U.S. Armed Forces.

The trial court stated that the lawsuit raised “especially grave separation of powers issues” and

observed that courts traditionally have been reluctant “to intercede in disputes between the

political branches of government that involve matters of war and peace.”39 It rejected the

Campbell v. Clinton, 52 F.Supp.2d 34 (D.D.C. 1999), aff’d, 203 F.2d 19 (D.C. Cir.), cert. den., 531 U.S. 815 (2000).

The WPR generally provides that the President shall terminate hostilities within 60 to 90 days unless Congress has

either declared war or provided “specific authorization for such use of United States Armed Forces....” 50 U.S.C.

§1444(c). See also 50 U.S.C. §1447(a)(1) (stating that authorization to introduce U.S. forces into hostilities shall not be

inferred “unless such provision specifically authorizes the introduction of United States Armed Forces”). On several

occasions when it has authorized the executive to use military force, Congress has included express language that the

measure constitutes “specific authorization” under the War Powers Resolution. See e.g., P.L. 107-40 (2001) (the

authorization to use force against entities responsible for attacks of September 11, 2001 constituted specific

authorization under the terms of the WPR); P.L. 107-243 (2002) (authorization to use force against Iraq constituted

specific authorization under the WPR); P.L. 102-1 (1991) (authorization for first Persian Gulf conflict). The executive

branch, however, has taken the position that the WPR does not bind future Congresses from impliedly authorizing

hostilities, and took the position that Congress had authorized continuing hostilities against Yugoslavia via

appropriations legislation, despite the fact that this legislation did not describe itself as constituting specific

authorization under the WPR. Dept. of Justice, Office of Legal Counsel, Authorization for Continuing Hostilities in

Kosovo, 2000 OLC LEXIS 16 (2000).

Campbell, 52 F.Supp.2d at 40.

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argument, however, that courts can never adjudicate disputes that involve foreign relations. But it

said that in this instance it did not need to determine whether the case was properly subject to

judicial decision because the congressional plaintiffs lacked standing to bring the suit. While the

D.C. Circuit had in the past followed a fairly relaxed standard with respect to congressional

standing, it said, the Supreme Court in Raines v. Byrd40 had “dramatically” altered the legal

landscape. In that case, the Court had held that Members of Congress who voted against the Line

Item Veto Act (P.L. 104-130) lacked standing to challenge the constitutionality of the act because

they retained a political remedy, namely, the repeal of the act or the exemption of individual

appropriations from its purview. Any injury they suffered with respect to their votes on future

appropriations bills and to the balance of power between Congress and the President, the Court

had ruled, was “wholly abstract and widely dispersed” and lacked the particularity and

concreteness necessary to confer standing.41

Thus, the district court in Campbell concluded that it was not sufficient for the congressional

plaintiffs in the case before it to allege simply that the President had ignored the Declaration of

War Clause of the Constitution or the War Powers Resolution. Nor, it held, was it sufficient to

allege that Congress had taken actions in this instance which the President had nullified or

ignored by initiating and continuing U.S. involvement in the NATO campaign. For Members of

Congress to have standing, the court said, there had to be a genuine “constitutional impasse.”42

Had Congress directed the President to withdraw U.S. forces and he had refused to do so, or had

Congress refused to appropriate funds for the air strikes and the President had used other funds

for that purpose, the court suggested, “that likely would have constituted an actual confrontation

sufficient to confer standing on legislative plaintiffs.”43 But the congressional votes here, the

court stated, did “not provide the President with such an unambiguous directive” but instead sent

“distinctly mixed messages.”44 The court concluded: “Where, as here, Congress has taken actions

that send conflicting signals with respect to the effect and significance of the allegedly nullified

votes, there is no actual confrontation or impasse between the executive and legislative branches

and thus no legislative standing.”45

The court also noted that the 26 Members had not been authorized by the House to institute the

suit.

On February 18, 2000, the U.S. Court of Appeals for the District of Columbia affirmed on

standing grounds. The court noted that in Coleman v. Miller46 the Supreme Court had ruled that

state legislators who claimed their votes had been sufficient to defeat the ratification of a

constitutional amendment had standing to challenge the actions of the Kansas Secretary of State

in authenticating the amendment as approved, because the effect of the authentication was to

nullify the effectiveness of their votes. The majority of the appellate panel interpreted Coleman to

mean that the legislators had standing only if they had no legislative remedy whatsoever.

Applying this analysis to the case before it, the Campbell court concluded that the plaintiffs

521 U.S. 811 (1997).

Id. at 829.

Campbell, 52 F.Supp.2d at 43, quoting Goldwater v. Carter, 444 U.S. 996, 997-98 (1979) (Powell, J., concurring).

Id., quoting Goldwater. 444 U.S. at 997-998 (Powell, J., concurring).

Id. at 43-44.

Id. at 44.

307 U.S. 433 (1939).

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enjoyed “ample legislative power to have stopped prosecution of the ‘war.’”47 The panel majority

listed several options by which Congress could act legislatively to limit hostilities:

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.48

Because legislative remedies were available to the plaintiffs, the appellate court found their

situation dissimilar to that of the legislators in Coleman and held that they lacked standing to

bring their challenge.

Each of the three judges on the appellate panel filed concurring opinions as well. Judge Silberman

stated that in his opinion the plaintiffs’ claims (and, apparently, any other war power claim)

should also be dismissed on grounds of nonjusticiability, because “[w]e lack ‘judicially

discoverable and manageable standards’ for addressing them, and the War Powers Clause claim

implicates the political question doctrine.”49 The 60-day withdrawal mandate of the War Powers

Resolution, he stated, is triggered only if U.S. forces are engaged in hostilities or are in imminent

danger of hostilities. But that standard, he contended, “is not precise enough and too obviously

calls for a political judgment to be one suitable for judicial determinations.”50 Similarly, he

asserted, there is no constitutional test for determining what constitutes a war or when a

declaration of war is necessary, and the judiciary is ill-equipped to engage in the fact-finding

involved in making such determinations. Finally, Judge Silberman said, such issues are

necessarily ones of “the greatest sensitivity for our foreign relations” on which conflicting

pronouncements by the different branches of government ought to be avoided.51

Judge Tatel’s concurring opinion took issue with the assertion that the case presented a

nonjusticiable political question. Determining whether war exists or not, he contended, “is no

more standardless than any other question regarding the constitutionality of government action”;52

and, he said, courts have frequently made that determination. Moreover, he asserted, the

plaintiffs’ claim regarding the War Powers Resolution did not even require the court to make that

determination but only whether U.S. Armed Forces were introduced into “hostilities.” “One of the

most important functions of Article III courts,” he said, “[is] determining the proper constitutional

allocation of power among the branches of government.”53 Claims that a case involves issues of

foreign relations and risks the danger of government speaking with “multifarious voices,” Judge

Tatel concluded, should not prevent a court from determining “whether the President exceeded

his constitutional or statutory authority by conducting the air campaign in Yugoslavia”:

Campbell, 203 F.2d 19, 23 (D.C. Cir. 1999).

Id. (italics in original).

Id. at 24-25 (Silberman, J., concurring).

Id. at 25 (Silberman, J., concurring).

Id. at 27 -28 (Silberman, J., concurring).

Id. at 37 (Tatel, J., concurring).

Id. at 40-41 (Tatel, J., concurring).

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If in 1799 the Supreme Court could recognize that sporadic battles between American and

French vessels amounted to a state of war, and if in 1862 it could examine the record of

hostilities and conclude that a state of war existed with the confederacy, then surely we,

looking at similar evidence, could determine whether months of daily airstrikes involving

800 U.S. aircraft flying more than 20,000 sorties and causing thousands of enemy casualties

amounted to “war” within the meaning of Article I, section 8, clause 11.54

Finally, Judge Randolph wrote an opinion concurring with the judgment of the panel but

disagreeing with its reasoning. He contended that the panel had misapplied the Supreme Court’s

decisions in Coleman and Raines but that the case still should have been dismissed on the

grounds of standing and also of mootness. The plaintiffs lacked standing, he said, not because

they retained legislative remedies for what they claimed to be the President’s illegal actions but

because their votes had not, as required by Raines, been completely nullified. In fact, he said,

their vote against a declaration of war deprived the President of the greatly expanded powers he

obtains under a number of statutes in a declared war and deprived him as well of the “authority to

introduce ground troops into the conflict.”55 Thus, he asserted, “plaintiffs’ votes against declaring

war were not for naught,” and for that reason they lacked standing to sue.56 The reasoning of the

majority opinion was wrong, he contended, because it “confused the right to vote in the future

with the nullification of a vote in the past.” In addition, he said, the case was moot, because

hostilities had ended at least by June 21, 1999. If the issue were one “capable of repetition, yet

evading review,” Judge Randolph noted, it would not be moot. But neither element was satisfied

here. The D.C. Circuit’s prior decision in Conyers v. Reagan, supra, he stated, had held that wars

initiated without congressional approval are not matters that inherently evade review. Moreover,

he said, it was doubtful that the statutory claim that the President continued the war for more than

60 days without congressional authorization met the “capable of repetition” element. President

Clinton, he noted, was the first President “who arguably violated the 60-day provision,” and the

plaintiffs themselves stated that in modern times most U.S. attacks on foreign nations “will be

over quickly, by which they mean less than 60 days.”57

The congressional appellants sought further review in the Supreme Court, but on October 2,

2000, the Court denied review.

Id. at 40 (Tatel, J., concurring).

Id. at 31 (Randolph, J., concurring).

Id. (Randolph, J., concurring).

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Regime Change and Disarmament in Iraq

In Doe v. Bush,58 12 Members of the House of Representatives, 3 members of the military,59 and

15 parents of service members instituted suit to enjoin President George W. Bush from launching

a military invasion of Iraq to remove Saddam Hussein from power and to enforce Iraq’s

disarmament. Notwithstanding enactment in October 2002 of the Authorization for the Use of

Force Against Iraq Resolution (P.L. 107-243), the plaintiffs contended that the authorization

unconstitutionally delegated Congress’s power to declare war to the President or, alternatively,

that an invasion of Iraq would exceed the authority granted by the authorization. On February 24,

2003, the reviewing federal district court held the suit to raise a nonjusticiable political question

and dismissed the case. On March 13, 2003, the U.S. Court of Appeals for the First Circuit

affirmed on the basis that the issues in the case were not ripe for judicial review and that the

October authorization did not constitute an unlawful delegation of Congress’s constitutional

authority.

Citing Baker v. Carr, discussed supra, the trial court held that judicial resolution of a war powers

issue would be appropriate “only when the actions taken by Congress and those taken by the

Executive manifest clear, resolute conflict.”60 The Constitution, it said, commits the conduct of

the nation’s foreign relations to the political branches of the federal government. As a

consequence, “absent a clear abdication of this constitutional responsibility by the political

branches, the judiciary has no role to play.”61 In this instance, the court ruled, there was no

“intractable constitutional gridlock.”62 In the October 2002 authorization, it noted, “Congress has

expressly endorsed the President’s use of the military against Iraq”; and as of the day of its

decision, it said, “the President, for his part, has not irrevocably committed our armed forces to

military conflict in Iraq.”63 Given the “day to day fluidity” in the situation, the court concluded,

the case raised “political questions ... which are beyond the authority of a federal court to

resolve.”64

On March 13, 2003, the U.S. Court of Appeals for the First Circuit affirmed. Eschewing reliance

on the political question doctrine, the appellate court held that there was no “constitutional

impasse” between Congress and the President regarding the use of force against Iraq and, as a

consequence, the issue was not ripe for judicial review. Ripeness, the court said, “mixes various

mutually reinforcing constitutional and prudential considerations.”65 One, it stated, is to prevent

Doe v. Bush, 257 F. Supp. 2d 436 (D. Mass. 2003), aff’d, 323 F.3d 133 (1st Cir. 2003), petition for rehearing denied,

322 F.3d 109 (1st Cir. 2003).

In dismissing the plaintiffs’ claims on jurisdictional grounds, the reviewing courts in the Doe litigation did not

directly address when or whether private parties have standing to sue the President on the grounds that military

operations violate the War Powers Resolution or the constitutional allocation of war powers between the political

branches. In an earlier case, the U.S. District Court for the District of Columbia held that a military serviceman had

standing to challenge a presidential order deploying him to the Persian Gulf on the grounds that the order exceeded

presidential authority under the War Powers Resolution. The court nonetheless dismissed the case on political question

and ripeness grounds. Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990).

Bush, 257 F. Supp. 2d at 438.

Id.

Id. at 439.

Id. at 440.

Id.

Doe v. Bush, 323 F.3d 133, 138 (1st Cir. 2003).

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rulings on “abstract disagreements.” A second is “to avoid unnecessary constitutional decisions.”

A third element simply recognizes that courts can benefit “from a focus sharpened by particular

facts.” In this instance, it asserted, “[m]any important questions remain unanswered about

whether there will be a war, and, if so, under what conditions.”66 Even if the plaintiffs’ assertion

that the October authorization does not authorize the use of force against Iraq is granted, it said,

“it is impossible to say yet whether or not those commands will be obeyed.”67 “If courts may ever

decide whether military action contravenes congressional authority,” the court concluded, “they

surely cannot do so unless and until the available facts make it possible to define the issues with

clarity.”68

The appellate court did, however, reach the merits of the issue on the plaintiffs’ other claim;

namely, that the discretionary authority to use force conferred on the President by the October

authorization unconstitutionally delegated Congress’s power to declare war. That issue might be

“clearly framed,” the appellate court stated, “if Congress gave absolute discretion to the President

to start a war at his or her will.”69 But, it said, “the mere fact that the October Resolution grants

some discretion to the President fails to raise a sufficiently clear constitutional issue.”70 Even with

respect to the exercise of powers that are entirely legislative in nature, it noted, the Supreme

Court has upheld “enactments which leave discretion to the executive branch ... as long as they

offer some ‘intelligible principle’ to guide that discretion.”71 Moreover, it stressed, in the area of

foreign affairs the Supreme Court has made clear that “the nondelegation doctrine has even less

applicability....”72 In addition, it said, “there is [no] clear evidence of congressional abandonment

of the authority to declare war to the President.”73 For more than a decade, it noted, Congress

“has been deeply involved in significant debate, activity, and authorization connected to our

relations with Iraq....”74 The October resolution itself, the court said, “spells out justifications for

a war and frames itself as an ‘authorization’ of such a war.”75 These circumstances, the court

concluded, did not warrant judicial intervention.

On March 18, 2003, the appellate court rejected an emergency petition for rehearing of its

decision. The court stated: “Although some of the contingencies described in our opinion appear

to have been resolved, others have not. Most importantly, Congress has taken no action which

presents a fully developed dispute between the two elected branches. Thus, the case continues not

to be fit for judicial review.”76

Id. at 139.

Id.

Id. at 140-141.

Id. at 143.

Id.

Doe, 323 F.3d at 143.

Id.

Id. at 144.

Id.

Doe v. Bush, 322 F.3d 109 (1st Cir. 2003) (internal quotations omitted).

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NATO-Led Military Action Against Libya

In June 2011, 10 Members of the House of Representatives brought suit in the case of Kucinich v.

Obama to challenge the lawfulness of U.S. participation in military operations against Libya. 77 In

March, President Obama had ordered U.S. forces to take action as part of the NATO-led mission

against Muammar al Qadhafi’s regime in Libya.78 Although U.S. operations, including the use of

manned and unmanned aircraft to destroy Libyan military targets, extended beyond the 60-day

deadline for unauthorized hostilities established by the WPR, Obama Administration officials

claimed that these actions were sufficiently limited so as not to constitute “hostilities” restricted

by the WPR, and also argued that the President’s role as Commander-in-Chief provided a legal

basis for such operations even in the absence of congressional authorization.79 Although Congress

considered a number of legislative proposals in response of the Libyan mission—including

measures which would have alternatively authorized or required termination of U.S. operations—

none were adopted.

The Kucinich plaintiffs alleged that the ongoing military action violated the requirements of the

WPR and contravened Congress’s constitutional authority over matters of war. They sought a

judgment declaring that U.S. military action against Libya constituted a “war” for purposes of the

Constitution, and was unconstitutional absent authorization from Congress. The plaintiffs also

requested the issuance of a judicial order enjoining further military operations against Libya

absent a declaration of war. On October 20, 2011, the U.S. District Court for the District of

Columbia dismissed the plaintiffs’ claims on standing grounds.80

The court concluded that it lacked jurisdiction over plaintiffs’ claim that they had been deprived

of their constitutional role in matters of war. The court noted that the plaintiffs had not initiated

legal proceedings at the behest of the House of Representatives as a whole, but rather had brought

suit in their individual capacity as Members of Congress. The district court characterized prior

jurisprudence as having “all but foreclosed the idea that a Member of Congress can assert

legislative standing to maintain a suit against a Member of the Executive Branch.”81 The court

found the alleged harm suffered by the plaintiffs—to be “squarely within the holding” of the

Supreme Court’s ruling in Raines v. Byrd,82 which “teaches that generalized injuries that affect all

Members of Congress in the same broad and undifferentiated manner are not sufficiently

‘personal’ or ‘particularized,’ but rather are institutional, and too widely dispersed to confer

standing.”83

The court also rejected plaintiffs’ assertion that, because they had voted against a legislative

proposal which would have authorized hostilities in Libya (and which ultimately failed to be

enacted), continued military operations effectively nullified their votes and conferred upon them a

A copy of the complaint can be viewed at http://kucinich.house.gov/UploadedFiles/Libya_Complaint_Master.pdf.

For further discussion of U.S. operations in Libya and related issues, see generally CRS Report RL33142, Libya:

Transition and U.S. Policy, by (name redacted).

See Report to the House of Representatives on United States Activities in Libya, submitted June 15, 2011, available

at http://www.nytimes.com/interactive/2011/06/16/us/politics/20110616_POWERS_DOC.html?ref=politics, at 25.

Kucinich v. Obama, Civ. Action No. 11-1096, 2011 U.S. Dist. LEXIS 121349 (D.D.C., October 20, 2011).

Id. at *12.

Id. at *18, quoting Kucinich v. Bush, 236 F. Supp. 2d 1, 4 (D.D.C. 2002).

Kucinich v. Obama, 2011 U.S. Dist. LEXIS 121349 at *20, quoting Kucinich v. Bush, 236 F. Supp. 2d at 7.

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concrete injury which entitled them to standing. The court noted that the President had asserted

independent constitutional authority to carry out the Libyan operation, and ruled that this action

“cannot be construed as actions that nullify” a vote which occurred several months after U.S.

military action in Libya had been initiated.84 The court also noted that prior D.C. Circuit

jurisprudence recognized that the claim for nullification “necessitates the absence of a legislative

remedy.”85 The court characterized plaintiffs’ attempts to limit continued U.S. operations via

legislative action, including holding votes on defunding military operations or directing the

withdrawal of U.S. troops from Libya, as belying their arguments that no legislative remedy

existed for their alleged injury.86

The court then turned to plaintiffs’ argument that they possessed standing on account of their

status as taxpayers. The court noted that taxpayer standing occurs in very narrow circumstances.87

For standing to exist, the challenged spending must have been authorized and directed by

Congress; taxpayer standing may not serve as a basis to challenge either discretionary executive

expenditures or spending that is done in a manner contrary to that which Congress intended when

appropriating funds.88 The court concluded that “because the military actions challenged by the

plaintiffs do not arise from expenditures expressly authorized by Congress, the plaintiffs … do

not have standing to bring this action as taxpayers.”89

Because the district court concluded that plaintiffs lacked standing to bring their claims, it

declined to assess whether those claims raised nonjusticiable political questions.90

No appeal was taken from this decision.

Conclusion

Historically, the courts have been reluctant to act in cases involving issues of national security

and foreign policy. The enactment of the War Powers Resolution in 1973 does not appear to have

altered that situation. Eight subsequent efforts by lawmakers to effectively call upon federal

judges to put traditional scruples aside have proven unavailing. In each and every case brought

since the WPR’s enactment to resolve the political branches’ impasse over the law and/or the

constitutional division of the war power in which a final judicial ruling has been issued, the

reviewing court has concluded that the factors calling for abstention outweigh those in favor of

involvement. The courts have variously relied on the political question doctrine, the

equitable/remedial discretion doctrine, ripeness, mootness, and congressional standing. In the one

Kucinich, 2011 U.S. Dist. LEXIS 121349 at *27.

Id. at *24.

Id. at *27. The court noted that in Campbell v. Clinton, the D.C. Circuit had recognized that Congress could

potentially compel the end of military operations by (1) enacting a statute forbidding the continued use of U.S. forces;

(2) utilizing congressional appropriations authority to terminate funding for the military action; or (3) impeachment. Id.

at n.7.

Id. at *29-30.

Id. The district court further noted that the Supreme Court has repeatedly recognized that “a taxpayer’s interest in

ensuring that appropriated funds are spent in accordance with the Constitution does not suffice to confer Article III

standing.” Id. at *29, quoting In re Navy Chaplaincy v. U.S. Navy, 534 F.3d 756, 761 (D.C. Cir. 2008).

Kucinich, 2011 U.S. Dist. LEXIS 121349 at *41.

Id. at n.9.

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ruling arguably on the merits, the U.S. Court of Appeals for the First Circuit ruled that a

discretionary grant of authority to the President to use force under specified circumstances does

not constitute an unlawful delegation of Congress’s power to declare war.

The courts have made clear, however, that while formidable, none of the aforementioned

procedural barriers constitutes an insurmountable obstacle to resolving the statutory or

constitutional issues concerning war powers. All of the opinions to date indicate that the barrier to

the exercise of jurisdiction stems from the posture of the cases, not some institutional

shortcoming. If this view prevails, both statutory and constitutional war powers issues can be

judicially determined if a legal, as distinguished from a political, impasse is created. It has been

suggested that this can come about by congressional action that directs the President to take a

particular action, or bars him from doing so, and by presidential noncompliance. Absent such an

irreconcilable conflict, however, many believe it is unlikely that the courts will venture into this

politically and constitutionally charged thicket.

Author Contact Information

(name redacted)

Legislative Attorney

[redacted]@crs.loc.gov, 7-....

Congressional Research Service

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