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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  • Display: Sort:
    SCOTUS? (5.00 / 3) (#1)
    by Molly Bloom on Tue Apr 10, 2007 at 11:28:58 AM EST
    I don't have time to research it at the moment, but during the Vietnam War, suit after suit was filed.  Some were by members of  Congress, some by soliders in uniform and obviously a few by draft resisters. Correct me if I am wrong, but didn't they go nowhere? Didn't SCOTUS consistently duck the question as a political one?

    Why would a less liberal court go where the Warren Court wouldn't? Cutting funding is the only option Congress has.

    You are correct (none / 0) (#5)
    by Big Tent Democrat on Tue Apr 10, 2007 at 11:42:07 AM EST
    on all counts.

    I find it hard (5.00 / 4) (#3)
    by Maryb2004 on Tue Apr 10, 2007 at 11:39:31 AM EST
    to take seriously even the hypothetical idea that the way to stop a war is to engineer a lawsuit against the executive branch two months before a general election. So I commend your patience in going through these arguments. Well done.

    Thanks (none / 0) (#4)
    by Big Tent Democrat on Tue Apr 10, 2007 at 11:41:19 AM EST
    I'm with you but I imagined some genius seeng Mass v. EPA as a window of opportunity.

    God save us from geniuses. (5.00 / 1) (#10)
    by Maryb2004 on Tue Apr 10, 2007 at 12:23:39 PM EST
    Especially geniuses with one or two years of law school and no practical experience on the cost (in time and money) of litigation where all you have is the hope of a window of opportunity from a single case.  Rule of thumb:  never draft anything that would make a good law school exam question.

    But, truthfully, my biggest issue with the whole idea is political.  It's just bad politics imo.

    (Disclaimer: My subject line was not in any way intended to equate you with god).


    Yeppers. (5.00 / 2) (#13)
    by Gabriel Malor on Tue Apr 10, 2007 at 12:36:14 PM EST
    Rule of thumb:  never draft anything that would make a good law school exam question.

    I agree double with this. I just wrote a complaint against my better judgment because the partner I work for wants to prompt legislative or administrative action. I am not a happy camper. Fortunately, his name is on the bottom line. I gave it my best effort, but I'm not really holding my breath.

    As for my upthread comment, you got me Mary. I totally treated the hypo as an exam question. My legal talks with BTD and some of the commenters around here have helped me get my mind wrapped around specific questions of law. I probably should have sent Edger flowers after I AmJured my War Crimes class last semester. Maybe BTD will cause me to AmJur my Fed-State ConLaw class this semester!


    Extensive hypothothetical discussion (5.00 / 1) (#19)
    by Maryb2004 on Tue Apr 10, 2007 at 01:48:11 PM EST
    on the state of the law and how a court MIGHT rule is ok on a blog.  At a seminar. In a bar.  (Maybe especially in a bar.)  

    It's ok when every other available solution has been tried and you have to get creative.

    But a legislative solution to a problem in which real blood is being spilled shouldn't have a hypothetical remedy.

    But I enjoyed your discussion.  Carry on.


    To do nothing is so ethically (5.00 / 3) (#7)
    by Militarytracy on Tue Apr 10, 2007 at 11:46:49 AM EST
    and morally wrong it causes my eyes to cross and stay stuck for hours sometimes.  As with all things that are deeply flawed and terribly wrong the structure of the war is falling apart in other places as well.  We don't have the soldiers to do this, but if we keep propping Bush and Cheney up they can have extra time and energy to find new sources for more soldiers.  Nobody wins a battle by not showing up, nobody wins a game by forfeiting, nobody shows or grows character by withholding committing the self.  It is a risk to take a firm stand but I'm willing to risk.  I am willing to really live when it comes to this because the only other thing left is death.  Death of my soldiers, death of more Iraqis because Iraq fights my soldiers instead of dealing with itself, and death of my soul because I would stiffle its voice and suffocate it by condoning and allowing unethical war in my name.  In this game if you risk nothing you only earn death and I demand to live.  I choose to live friends, I choose to live.

    Malor, concurring in part and dissenting in part. (5.00 / 1) (#8)
    by Gabriel Malor on Tue Apr 10, 2007 at 12:11:59 PM EST
    BTD, you know how I love it when you get down and dirty with the legal stuff. I think you've gone to the heart of the legal issues that would be key to any suits between members of Congress and the President: standing and the political question doctrine. I disagree that standing is an insurmountable difficulty, but I agree that the political question doctrine will prevent a merits ruling even where standing is satisfied.

    But first, I absolutely disagree with Senator Specter's claim that Congress can get around the standing issue by passing legislation to give itself standing. (I also disagree with Specter's and Stevens' treatment of 42 U.S.C. §7606, but that's a different issue.) Even were such legislation to pass executive veto (and I agree with you that we'll just have to let that one go), Congress would still have to make some kind of showing of injury, nexus, and redressability, even if it manages to legislatively relax the standing rules for itself. The redressability element may be the most important when it comes to a conflict between Congress and the President. Just what exactly does he expect the courts to do about it that Congress cannot do itself?

    As for standing, generally, I believe Congress can have standing for a lawsuit against the President at the time when the President disregards their properly passed and signed law. You note that the Supreme Court declined to find legislative standing in the case Raines v. Byrd. But that decision was based on the principle that a case or controversy must be "ripe" for judicial review.

    In Raines, Congressmen sued the Executive on the day after the line item veto was signed into law. At that point, they had not suffered an injury in fact, because the line item veto had not yet been applied against the properly passed and signed laws of Congress. In a later case, Clinton v. City of New York, the Supreme Court invalidated the line item veto because at that time it had actually been used by the President contrary to properly passed and signed laws. Thus, in the later case, the petitioners had standing because they suffered an actual injury.

    Therefore, in the hypothetical controversy between  Congress and the President regarding military spending, Congress will have standing at the point in time that the President actually acts in a manner contrary to a properly passed and signed law. This means that if the President signs the House bill, the courts can conceivably hold him to it. Otherwise, Congress has no injury in fact and thus no standing to sue.

    As for the political doctrine question, I agree with you that it presents an insurmountable bar to judicial remedies in the hypothetical situation. Courts will decline to address the merits of cases under the political question doctrine if:
    (1) the issue involves resolution of questions committed by the text of the Constitution to a coordinate branch of Government;
    (2) resolution of the question demands that a court move beyond areas of judicial expertise; and
    (3) prudential considerations counsel against judicial intervention.

    Here, the issue of war-making powers is textually committed to the Congress and the Executive. Furthermore, the power to spend money is textually committed to Congress. Furthermore, no statutory standard exists to guide the courts in making a determination of which party must yield to the other. (The closest thing we've got is the judicial standards created by Justice Jackson in his concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer.) And finally, it is manifestly imprudent for the courts to intervene in the Congressional and Executive process during a time of war. Molly Bloom notes upthread that the courts often declined to resolve issues involving the Vietnam War while that conflict continued. I believe the will similarly decline to resolve issues which directly involve the prosecution of the Iraq War.

    In short, a judicial remedy seems quite farfetched in this case. Even were Congress to get standing (by actually getting the President to sign their acts), it is likely that the courts will refuse to resolve the dispute.

    Good comment (none / 0) (#9)
    by Big Tent Democrat on Tue Apr 10, 2007 at 12:22:21 PM EST
    PArticularly on Raines.

    I take your point.


    Not sure about the political question (none / 0) (#15)
    by Categorically Imperative on Tue Apr 10, 2007 at 12:56:38 PM EST
    aspect.  The issue would not be the government's war-making powers themselves, but the executive's refusal to execute a duly-enacted statute.  That issue, regardless of the underlying policy judgment, is one over which a court could properly exercise its authority.  As for the lack of a statutory standard, that may well be, but the Constitution itself provides the standard and the courts clearly are competent to apply constitutional standards.  Regarding the prudence of court intervention, it would obviously be a highly-charged case, but it would seem better for a court to intervene than to allow the President to simply ignore the law of the land.  I suppose there's an argument for impeachment as the more prudent course, but in our present situation that wouldn't work unless both Bush and Cheney were impeached.

    That is a fair reading (5.00 / 2) (#16)
    by Big Tent Democrat on Tue Apr 10, 2007 at 01:06:13 PM EST
    but the Court won't say that.

    PARTICULARLY when the Congress does not DEFUND the war, the very power Hamilton envisioned to resolve THIS dispute.


    Technically (5.00 / 2) (#11)
    by Categorically Imperative on Tue Apr 10, 2007 at 12:26:20 PM EST
    I don't think a hypothetical suit over the supplemental funding bill or based on a statute granting Congress standing to challenge Bush's use of signing statements would be a "political question."  Both cases are significantly different from Ron Paul et al.'s suit which sought to challenge the policy determinations of a majority of Congress and the President.  In Bush's case, you'd have a law duly enacted over a veto (hard to imagine him signing it) granting standing to a discrete, identifiable group of people in order to redress a concrete injury.  The Constitution would provide a "judicially discoverable and manageable standard" for resolving the issue.  Sure, the hypothetical suit about the supplemental would be related to a matter of foreign policy/national security that is a paradigmatic political question, but the Court would not be required to choose between two competing policy options but rather to force the executive to faithfully execute the law of the land.

    It is 100% true that the current Supreme Court would call the suit a political question, but they'd be incorrect.

    Heh (5.00 / 1) (#12)
    by Big Tent Democrat on Tue Apr 10, 2007 at 12:32:19 PM EST
    Yes well, reality based and all that.

    IF I could redo the Slaughterhouse cases, we'd all be better off.


    Slaughterhouse (5.00 / 2) (#14)
    by Categorically Imperative on Tue Apr 10, 2007 at 12:50:11 PM EST
    That's what "incorporation" is for!  One of my main pet peeves re: Scalia is his continued railing against the incorporation doctrine as a matter of textualist/originalist interpretation of the due process clause.  He's right, as far as it goes, but is incredibly intellectually dishonest for being willfully blind to the fact that incorporation is required due to the Slaughterhouse Cases, which stripped the privileges and immunities clause of any significance.  Of course, I'm sure I'm not telling you anything you don't already know.

    I actually like Specter's idea as an expedient for challenging Bush's signing statements, though the suit could get into court another way (though without a member of Congress as a plaintiff).  Anyone who's been injured due to the enforcement of a signing statement rather than the law as written pretty clearly would have standing to sue.  My bet would be there are at least a handful of such suits already filed.


    Pols and so called (none / 0) (#6)
    by Big Tent Democrat on Tue Apr 10, 2007 at 11:42:52 AM EST
    progressive activists do a lot of bloviating too.

    You are right of course.

    constitutional crisis? (none / 0) (#17)
    by jarober on Tue Apr 10, 2007 at 01:06:44 PM EST
    a Bill with requirements to remove troops won't get past the Senate, much less a White House Veto.  If it got through the Senate, it would get vetoed, and that veto would get sustained - including the House.  

    Face reality: the anti-war position simply does not have the votes to get past the Senate or the White House.

    Well (5.00 / 2) (#18)
    by Big Tent Democrat on Tue Apr 10, 2007 at 01:16:51 PM EST
    NOT funding doesnot requires getting past anything as I have told you 8 million times.

    Apparently it does (none / 0) (#20)
    by jarober on Tue Apr 10, 2007 at 06:48:34 PM EST
    If it was simple, Pelosi and Reid would have done it.  It's not simple - they know that the political price for it would be enormous.