Chapter 6 - The role of the Judiciary
Dellums v. Bush, 752 F. Supp. 1141 (1990)
What war?
What precipitated the US actions?
Why do we care about Kuwait?
What about Saudi Arabia?
Is Saudi Arabia our ally?
Do they like us to have troops in their country?
Why?
Are they a moderate Muslin country that seeks to calm Islamic extremist
groups?
What had the president done at the time this suit was brought?
Just as a comparison with today, how many troops were on the ground in
Saudi Arabia?
What was the president and Cheney's stated intent at the time the suit was
filed?
What role did Cheney have then?
What role does he have now?
Any other familiar faces in the Bush I White House?
Who is bringing this action?
What does the plaintiff want to get?
What do they want the president to do before acting?
Do you think all members of congress support this action?
What congressional power do they claim the president is invading?
What is the president's broad political question defense?
What did Baker v. Carr tell us about political questions?
Why doesn't the court buy this?
What about the claim that the court cannot decide if there is a war going on?
What war was Mitchell v. Laird, 488 F.2d 611, 614 (D.C. Cir. 1973)
litigating?
How did the court characterize the question of whether there was a war
going on?
What makes a war under the Mitchell standard?
What did Mitchell say was the remedy if the Vietnam was an illegal war?
Standing
How are the plaintiff's claiming they are injured?
What does Mitchell v. Laird, 488 F.2d 611, 614 (D.C. Cir. 1973) tell us
about standing?
Remedial
Has Congress passed a law or resolution barring the incursion into Iraq?
What controls does Congress have?
Why cannot plaintiff's get Congress to use these powers?
Do you think the judge is right that they should be able to go forward just
because they cannot get Congress to use its remedial powers?
Is the president hiding the troop buildup from them?
Has the president adjourned Congress to prevent the vote?
Ripeness
What could congress do to moot this?
What could the president do?
How does this affect ripeness?
What would be the impact of the injunction if issued at this point?
End result?
Ange v. Bush, 752 F Supp 509 (1990)
What was plaintiff's claim in this case?
What is the War Powers Resolution?
What are plaintiff's problems in claiming a due process due process violation
because the military did not review his disability claims properly?
What does plaintiff want?
What would be the effect on this on the military?
Why does plaintiff have the same standing problems as Congress?
What does it take to make an illegal war that triggers the War Powers
Resolution?
What will have to happen for plaintiff to prevail?
Notes
Gilligan v. Morgan, 413 U.S. 1, 6 (1973)
The Kent State Shootings
Who shot whom?
Who did the shooters work for?
What did the lawsuit seek?
What was the separation of powers issue for the court?
Which branch did the court think should be investigating the Guard?
What provision of the constitution did the court base its ruling on?
What outcome was the court avoiding, i.e., what problem will the court have
if it turnes out that the troopers had been properly ordered to shoot the
students?
What about criminal prosecutions under state law?
What would the state have to show for a successful prosecution of the
individials?
What would be necessary to beat a "following orders" defense?
Quick review of standing - Northeastern Florida Chapter, General Contractors
of America v. City of Jacksonville, 508 U.S. 656, 663-664 (1993)
What are the three elements?
What is the zone of interest?
What can congress modify by statute?
What factors cannot be modified?
Are these the same in the state courts?
Why can’t Congress force the court to resolve political question cases?
Can Congress take away the court's jurisdiction over national security cases?
Are there constitutional limits on this?
What are the political limits?
What recent law removed possible jurisdiction?
Citizen Standing
Pietsch v. Bush, 755 F. Supp. 62 (E.D.N.Y. 1991)
What was plaintiff's claimed injury in fact?
What did the court say about this?
Why not accept this?
Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)
What was plaintiff challanging?
What constitutional provision does this violate?
What is the separation of powers problem?
Putting aside the court's ruling, do the plaintiffs have a valid
constitutional argument?
What was the problem with their standing?
Does it matter that the action may be illegal but there is no one with
standing to contest it?
Could congress allow standing for this case?
Why is that unlikely?
What could congress do if it wanted to fix this?
Flast v. Cohen, 392 U.S. 83 (1968)
What was the action being challanged?
Why does it matter which constitutional provision is being violated?
What is the two part test?
How often does the court allow tax payer standing?
Do you think a tax payer can assert that a war is illegal?
Can a tax payer get standing if he complians that he does not want his tax
money spent on an illegal war?
Congressional standing once more
Raines v. Bird, 521 U.S. 811, 829 (1997)
What did the plaintiffs want the court to rule?
What was their standing problem?
If congress really though this was unconstitutional, what could it do?
What did the court eventually rule about the line item veto?
Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), aff’d, 203 F.3d 19
(D.C. Cir. 2000)
What were the congressmen arguing?
What does it mean to say that "there were congressional votes defeating a
declaration of war (427-2), defeating an authorization of the air strikes
(213-213), defeating a resolution ordering an immediate end to U.S.
participation in the NATO operation (290-139)
What is the legal status of a bill that does not pass?
What did Congress vote for?
Why does one appropriations bill trump a thousand failed bills?
Would it even trump a successful join resolution telling the president to
get out of Yugoslavia?
What can congress do if it does not like a war the president is in?
What can congress do it the president orders in troops in violation of
provisions of the appropriations bill supporting the troops?
When does Tribe think congressman should have standing?
Why does Scalia think that congressmen should never have standing in their
offical capacity?
Doe v. Bush, 323 F.3d 133 (1st Cir. 2003)
Who were the plaintiffs?
Why did they say that it was illegal for Bush II to invade Iraq?
What is wrong with the claim that congress colluded with the president?
Why did the court find that the case was not ripe?
Do you think the court would have reached a different result if they had
waited a few days and the war had started?
In general, why is the role of the courts so limited as regards illegal wars and
fights in congress over war powers?