Chapter 6 - The role of the Judiciary
Part I
1
The Legal Domino Effects of War
Example 1


Alien Enemy Act, 50 U.S.C.
 §21 (2000), ‘‘whenever there is a declared war
between the United States and any foreign
nation or government,’’ citizens of ‘‘the hostile
nation or government’ ’who are at least 14
years old and not naturalized are subject to
summary arrest, internment, and deportation
when the President so proclaims.
How would this work in the war on terrorism?
2
The Legal Domino Effects of War
Example 2

Trading With the Enemy Act, 50 U.S.C. App. §§1-44 (2000)
 enables the President to regulate or prohibit
commerce with an enemy state or its citizens after
‘‘Congress has declared war or the existence of a state
of war.’’ And the President may authorize electronic
surveillance, physical searches, and the use of pen
registers and trap and trace devices to acquire foreign
intelligence without a court order for up to 15 days
‘‘following a declaration of war by Congress.’’
3
The Authorization of Force after 9/11

...use all necessary and appropriate force against
those nations, organizations, or persons he
determines planned, authorized, committed, or
aided the terrorist attacks that occurred on
September 11, 2001, or harbored such
organizations, or persons, in order to prevent any
future acts of international terrorism against the
United States by such nations, organizations or
persons. [Pub. L. No. 107-40, §2(a), 115 Stat. 224
(2001).]
4
What is the effect of this Authorization?





Did Congress declare war on al Quada?
Can congress declare a war on an enterprise,
rather than a country?
How does the war on terror differ from previous
declarations of war?
Should such a declaration trigger the usual war
measures, including international law issues?
What is the vagueness problem for foreign
countries and their citizens?
5
Political Question Review:
Baker v. Carr, 369 U.S. 186, 217 (1962)




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 non-judicial 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.
6
The First Gulf War
Dellums v. Bush, 752 F. Supp. 1141 (1990)





What precipitated the US actions?
Why do we care about Kuwait?
How does the president's cooperation with
Congress and allies differ from that in the Second
Gulf War?
Were we on our own in the First Gulf War?
How did the First Gulf War end?
7
Saudi Arabia




What is the strategic importance of 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?
8
Status of the Troops






What had the president done at the time this suit was
brought?
Just as a comparison with the second Gulf War, 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 did he have in the Second Gulf War?
Any other familiar faces in the Bush I White House?
9
The Plaintiffs





Who is bringing this action?
What does the plaintiff want to get?
What congressional power do they claim the
president is invading?
What do they want the president to do before
acting?
Do you think all members of congress support
this action?
 Would that matter?
10
The Political Question



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 the claim that it cannot
decide if there is a war going on?
11
(Internal case) Mitchell v. Laird, 488 F.2d
611, 614 (D.C. Cir. 1973)




What war was this?
How did the court characterize the question of
whether there was a war going on?
What makes a war under the Mitchell standard?
What was the congressional remedy if the
Vietnam was an illegal war?
 Why was congress unwilling to use the
remedy?
12
Standing




Has Congress passed a law or resolution barring the
incursion into Iraq?
What controls does Congress have?
Why can't plaintiffs 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?
13
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?
14
End Result?


What is the court's holding?
Do you think the United States Supreme Court
would ever really decide this type of case?
15
Ange v. Bush, 752 F Supp 509 (1990)




What is the plaintiff's basis for the claim that the
president does not have the authority to order him
to Iraq?
What does the plaintiff want?
What would be the effect on the military if plaintiff
prevails?
Is this ultimately the same problem as in Dellums?
16
How does Judge Lambert argue that this
is a classic political question?

This court’s refusal to exercise jurisdiction under
the . . . political question doctrine by no means
permits the President to interpret the executive’s
powers as he sees fit, nor does it mean that the
legislative branch is helpless without the
assistance of the judicial branch. Congress
possesses ample powers under the Constitution
to prevent Presidential overreaching, should
Congress choose to exercise them.
17
The Problem of Standards for War Powers
Cases



Does the constitution clearly prevent the president from
using troops to invade other countries?
Has the president done this without a declaration of war
since the beginning?
What standard could a court use to decide that a military
action is illegal?
 Why does being against a law passed by Congress not
solve the problem?
 What would it take to pass such a law?
18
What does Judicial Abstention Mean to
Separation of Powers?




Who "wins" when the court invokes political
question abstention in a war powers case?
Does this shift the balance of powers between the
branches of the government?
Is this better than the separation of powers
problem posed if the court intervened in a war
powers case?
Are the courts right to stay out of war powers
cases?
19
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?
20
The Courts Ruling



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
happens if the troopers had been properly
ordered to shoot the students?
21
What about criminal prosecutions under
state law?




What would the state have to show for a
successful prosecution of the individuals?
What would be necessary to beat a "following
orders" defense?
What are the political chances for such a
prosecution?
Who do you think the special state grand jury
indicted?
22
In Goldwater v. Carter, 617 F.2d 697 (D.C. Cir.
1979) (en banc), rev’d, 444 U.S. 996 (1979)




(Discussed in Chapter 7)
This was a fight between Goldwater in congress and
President Carter over the Panama Canal Treaty
The court did not find a political question, but dismissed
for standing.
Why does the court prefer to not find political questions?
23
Standing to Sue: Northeastern Florida v.
Jacksonville, 508 U.S. 656, 663-664 (1993)




What is injury in fact?
 Concrete?
 Actual, not imminent?
Causal relationship?
Redressability?
Why does a denial of standing not tell us anything about
the underlying merits of the case?
 Can there be wrongs where no one has standing to
sue to correct them?
24
Stopped here
25
Zone of Interest?




What is the zone of interest?
 Does the plaintiff have to be the one injured?
 Qui tam actions?
What can congress modify by statute?
What factors cannot be modified?
Are these the same in the state courts?
26
Can Congress Change the Court's
Behavior?




Why can’t Congress force the court to resolve
political question cases?
Can Congress take away the court's jurisdiction
over national security cases?
 If abstention is the problem, would it matter?
Are there constitutional limits on this?
What are the political limits?
 More in the detainee cases
27
Citizen Standing
28
Pietsch v. Bush, 755 F. Supp. 62 (E.D.N.Y.
1991)



What was plaintiff's claimed injury in fact?
 Was he a soldier posted to Iraq?
What did the court say about this?
What about his claim that any citizen should be
able to sue to require the government to obey the
constitution?
29
Schlesinger v. Reservists Committee to
Stop the War, 418 U.S. 208 (1974)



Why did the plaintiff claim that it was
unconstitutional for Congressmen to be National
Guard Officers?
What constitutional provision does this violate?
What is the separation of powers problem?
30
The Ruling - Injury to all is Injury to None



‘‘standing to sue may not be predicated upon an
interest of the kind alleged here which is held in
common by all members of the public, because of
the necessarily abstract nature of the injury all
citizens share.’’
Why?
 Putting aside the court's ruling, do the plaintiffs
have a valid constitutional argument?
What was the problem with their standing?
 What could congress do if it wanted to fix this?
31
Flast v. Cohen, 392 U.S. 83 (1968)




Why does it matter which constitutional provision is being
violated?
What is the two part test?
 How is the activity linked to the taxpayer?
 the taxpayer must show that the challenged enactment exceeds
specific constitutional limitations imposed upon the exercise of
the congressional taxing and spending power and not simply
that the enactment is generally beyond the powers delegated to
Congress by Art. I, §8
Do you think a tax payer can assert that a war is illegal?
Can a tax payer get standing if he complains that he does not want
his tax money spent on an illegal war?
32
Raines v. Bird, 521 U.S. 811, 829 (1997)




What did the plaintiff congressmen 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?
33
Campbell v. Clinton, 52 F. Supp. 2d 34
(D.D.C. 1999), aff’d, 203 F.3d 19 (D.C. Cir.
2000)




(Bombing Yugoslavia)
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?
34
What did Congress vote for?



Why does one passed and signed 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 if the president orders in troops
in violation of provisions of the appropriations bill
supporting the troops?
Why does the court find there is no standing if there is
any legislative remedy?
35
Congressional Standing


When does Tribe think congressman should have
standing?
 What does it mean that a presidential action
nullified a congressional vote?
 What recourse does Congress always have?
Why does Scalia think that congressmen should
never have standing in their official capacity?
36
Doe v. Bush, 323 F.3d 133 (1st Cir. 2003)





Why did plaintiffs say that it was illegal for Bush II
to invade Iraq?
What is wrong with the claim that congress
colluded with the president?
Why isn't there a real conflict between Congress
and the President?
What did Hillary say to explain her vote?
Do you think the court would have reached a
different result if they had waited a few days and
the war had started?
37
In general, why is the role of the courts so
limited as regards illegal wars and fights in
congress over war powers?
38