SCOTUS, Standing, Political Questions and Iraq
How can the Iraq Debacle be ended? Some say only after the 2008 election:
Matt Stoller makes it explicit:My strategic end goal is to end the war. To do that involves a process of showing that the Democratic caucus is unified behind putting restrictions on Bush and his ability to fight the war, and then using that pressure to remove Republicans (and wayward Democrats) from office in 2008.
Some think that the House Iraq supplemental funding can lead to a confrontation with the President in the Supreme Court:
If [Bush] ignores [the House proposal], we sue and the courts enforce it. if he ignores that, we're in massive constitutional crisis.
Gov. Bill Richardson thinks deauthorizing the Debacle and invoking the War Powers Act can lead to a Supreme Court resolution:
the Congress authorized the war and the Congress should deauthorize the war. Then, there will be a legal fight - the administration will say "well, we don't recognize the war powers act." Then you go to the Supreme Court.
Are any of these options realistic? Or acceptable? Waiting for the next election could work but it is morally unacceptable and, imo, not likely to work. As for counting on the Supreme Court, assuming a bill could be enacted, issues of standing and the political question doctrine preclude these avenues. The reality is, as it always has been, the Congress' power to end the Debacle lies in the Spending Power.
I have discussed the "wait for the next election" option before, so I will concentrate on the "legal" options.
So can the Congress, or members of Congress sue the President for failing to end the war? Would they have standing? Would the political question doctrine preclude such a suit?
We do have a sort of precedent to consider:
A bipartisan group of 17 Members of Congress, including US Rep. Ron Paul (R-Surfside, Texas), filed a lawsuit on Friday, April 30, 1999, in federal court against President Bill Clinton for violating both the US Constitution and the 1973 War Powers Resolution with regard to Yugoslavia.
. . . The lawsuit specifically states that the president violated Article 1, Section 8, Clause 11, of the US Constitution by engaging in war without the declaration of such from Congress. The suit also notes that the president violated the 1973 War Powers Resolution for failing to officially report to Congress on his aggressive actions against Yugoslavia within the mandated forty-eight hours.
The suit seeks a declaratory judgment from the court, stating that the president has violated both the US Constitution and the War Powers Resolution. The plaintiffs ask the court to order the president to end hostilities by May 25, 1999, and withdrawn troops no later than June 24, 1999.. . . Joining Rep. Paul in the lawsuit are: Tom Campbell (R, CA), Dennis Kucinich (D, OH), Marcy Kaptur (D, OH), Roscoe Bartlett (R, MD), Bob Barr (R, GA), Dan Burton (R, IN), Philip Crane (R, IL), John Cooksey (R, LA), Walter Jones (R, NC), Donald Manzullo (R, IL), Charlie Norwood (R, GA), Thomas Petri (R, WI), Marshall Sanford (R, SC), Joe Scarborough (R, FL), Bob Schaffer (R, CO), and Thomas Tancredo (R, CO). The Members have legal standing in the suit because the president's actions usurped Congress' constitutional and legal rights to declare war and provide oversight.
Funny group there and a strange lawsuit too. Contrary to what Paul wrote in his press release, the complaint sought a delcaration that the War Powers Act was unconstitutional. In addition, the Congress as an institution was named as a defendant.
But the basic questions remain: (1) do members of Congress have standing to sue to enforce laws or the constitution? (2) does the Congress as an institution have standing? (3) Does the political question doctrine preclude consideration of such a suit?
We are assuming, for the sake of argument, that a law along the lines of the House Supplemental can pass and get signed by Bush. Can the Congress sue Bush if he does not comply with it?
In their brief, the Clinton suing congresspersons argued they had standing to sue:
This litigation presents an Art. III case or controversy, since the complaint discloses that the plaintiffs have a sufficient personal stake in the determination of the constitutional validity of the War Powers Act of 1973, and of the Directives and Orders issued by the President (which engaged the armed forces of the United States in military actions against Yugoslavia), and of said five official acts of Congress related to the conflict in Yugoslavia taken between March23, 1999 and May 20, 1999, to present a real and substantial controversy admitting of specific relief through declaratory and injunctive relief. . . . In Flast v Cohen, the U.S. Supreme Court held that since the plaintiffs’ constitutional (First Amendment Establishment Clause) challenge was made with respect to a program involving a substantial expenditure of tax funds, and since the Establishment Clause operated as a specific constitutional limitation upon the exercise by Congress of its taxing and spending powers, the plaintiffs had standing to invoke a federal court’s jurisdiction for an adjudication on the merits. In the instant case, petitioners’ constitutional challenge is made with respect to Presidential and Congressional action and inaction related to expensive military operations against the Federal Republic of Yugoslavia by United States Armed Forces. The cost of these unconstitutional military operations, to be paid by U.S. taxpayers, is estimated at $6 to12 billion for starters, plus billions more to repair the damage being caused by the military operations -- estimated at $100 billion. Therefore, citizen-taxpayer-petitioners have standing to invoke the federal court’s jurisdiction for an adjudication on the merits because of the federal questions involved. They have successfully met the two-pronged nexus test established by Flast.
Well, it took up space on the paper. but as an argument, Flast is pretty much inapposite. The Congress can choose NOT to enact the expenditures. The First Amendment or any Constitutional rights of the Plaintiffs was NOT implicated by the Kosovo war. This dog won't hunt. And it certainly won't hunt for the Congress as a whole.
What else was offered to argue for standing? This:
All plaintiffs, as citizens of the United States, claim standing to maintain this action before the federal judiciary because the defendant legislative and executive branches have, by their formal actions, demonstrated that they are cooperating in a collective decision to deny the people constitutional governance carried out in decency and good order. The privileges and immunities of citizens of the United States are denied to these plaintiffs by the government’s unconstitutional actions described here. The questions raised are not political questions. Plaintiffs cannot turn to the Congress for the relief to which they are entitled because Congress has cooperated with the President in committing the unconstitutional actions plaintiffs are challenging. The questions plaintiffs have raised are not mere political questions to be settled by defendant Congress. Plaintiffs are challenging acts of the Congress (as well as acts of the President) as being violative of the Constitution on their face and in their application.
Okaaaay. Well, obviously it WAS a political question because Congress has not done what they want them to do. No cases are cited here for good reason. It is hogwash in terms of standing and political question jurisprudence.
Let's consider instead what the Congress as an institution might argue, particularly in light of Mass v. EPA. Does Stevens provide any comfort?
Article III of the Constitution limits federal-court jurisdiction to “Cases” and “Controversies.” Those two words confine “the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.” Flast v. Cohen, 392 U. S. 83, 95 (1968) . It is therefore familiar learning that no justiciable “controversy” exists when parties seek adjudication of a political question, Luther v. Borden, 7How. 1 (1849), when they ask for an advisory opinion, Hayburn’s Case, 2Dall. 409 (1792), see also Clinton v. Jones, 520 U. S. 681, 700, n. 33 (1997) , or when the question sought to be adjudicated has been mooted by subsequent developments, California v. San Pablo & Tulare R. Co., 149 U. S. 308 (1893) . This case suffers from none of these defects. The parties’ dispute turns on the proper construction of a congressional statute, a question eminently suitable to resolution in federal court. Congress has moreover authorized this type of challenge to EPA action. See 42 U. S. C. §7607(b)(1). That authorization is of critical importance to the standing inquiry: “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before.” Lujan, 504 U. S., at 580 (Kennedy, J., concurring in part and concurring in judgment). “In exercising this power, however, Congress must at the very least identify the injury it seeks to vindicate and relate the injury to the class of persons entitled to bring suit.” Ibid. We will not, therefore, “entertain citizen suits to vindicate the public’s nonconcrete interest in the proper administration of the laws.” Id., at 581.
Can Congress grant itself standing to sue to enforce its laws? Apparently, Arlen Specter thinks it can:
The Senate Judiciary Committee chairman, Arlen Specter, said yesterday that he is ``seriously considering" filing legislation to give Congress legal standing to sue President Bush over his use of signing statements to reserve the right to bypass laws.
The question becomes then can the Congress require the courts to hear political questions? Justice Stevens might say yes. Justice Roberts surely will say no. What would Justice Kennedy do? And how would such a law overcome a veto? But let's forget the last one to see where we can go with this.
In Walker v. Cheney, the District Court of the District of Columbia ruled that Congress can NOT create standing for a dispute between the Congress and the President. The Walker court cited Raines v. Byrd, which rejected an attempt to create "legislative standing" to challenge the line item veto.
Does Mass v. EPA mean the idea of legislative standing might have new life? I doubt it. But who knows?
But all this intellectual exercise ignores the elephant in the room - the Spending Power. Congress can end the Debacle, by not funding it. I could cite Alexander Hamilton and Federalist 24 one more time, but to what end? Everyone knows this is the only way to end the Debacle. Will our Congress have the courage to do the right thing? Will progressive activists work hard to achieve it?
So far, the answer is no.
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