On the Iraq Supplemental Funding Bill

Adding to Jeralyn's post on the Iraq Supplemental, I want to discuss an issue Kid Oakland mentions:

Speaker Pelosi was most emphatic on this point, this bill will also define under law that the President does not have the authority by any Act of Congress to continue his chosen course of action unfettered in Iraq. . . . Speaker Pelosi emphasized that Congress must reassert itself and say, and I'm paraphrasing here, when Congress defines the limits of the authorization in Iraq, that is the law. The bill that Congress sends to the President, veto or not, goal language or not, will be an important first step in the process of putting Congressional limits on the President's authority in Iraq and, hence, ending this war.

I do not understand this point frankly. Is Pelosi saying by the mere act of passing this bill, whether the President vetoes it or not, the Iraq War is deauthorized? Because if she is, then she seems wrong to me. We have discussed this point before. Another point from Pelosi is disheartening:

The Speaker was quite clear. The important thing is for Congress to reassert itself. When asked what she would do if the President chose to sign this or a future bill with a signing statement that rejected the clear meaning of the bill that Congress had passed, Speaker Pelosi said, "We can take the President to court."

Sigh. Not this again. No you can't Madame Speaker:

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.

So how about Reid-Feingold? Pelosi seemed awfully quiedt on the NOT funding proposal.

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    Disheartening ... (5.00 / 4) (#1)
    by Maryb2004 on Wed Apr 25, 2007 at 01:34:27 PM EST
    She claims (and I agree) that the important thing is for Congress to reassert itself.  And yet, when asked for a clear statement about what Congress would do if Bush thumbs his nose at Congress her response is that Congress will ... run to court.  Leaving aside the legal impracticality of this, it is disheartening that she didn't have a response that included Congress actually asserting itself and taking actions that it is empowered to take to assert its own authority.

    I gave a more full comment to k/o here in his version at dKos.

    She's convinced that he won't sign (5.00 / 2) (#3)
    by andgarden on Wed Apr 25, 2007 at 02:05:35 PM EST
    So I guess she thinks that it doesn't even matter what the supplemental would do in reality, as it never will become law.

    I hope they have a plan in place for the possibility that W does sign. (Sidebar: can we be assured that the conference report will even pass?)

    Is she trying to set up (none / 0) (#7)
    by Edger on Wed Apr 25, 2007 at 02:45:40 PM EST
    a showdown over signing statements?

    counting on a veto? (5.00 / 2) (#4)
    by selise on Wed Apr 25, 2007 at 02:05:52 PM EST
    seems like speaker pelosi is counting on / hoping for a veto... 'cuz if bush signs this bill i just don't see how the war/occupation ends unless bush wants it to.

    the conference bill uses senate language (non-binding) for the withdrawal timeline (it's a goal).

    After reading KO's description at MyDD (5.00 / 1) (#9)
    by Alien Abductee on Wed Apr 25, 2007 at 03:18:00 PM EST
    it looks like this strategy is a lot more about trying to set hedges around the precedents set re the unitary executive vis a vis the other branches than it is about ending the occupation of Iraq.

    If the President does not sign the bill, it... (none / 0) (#2)
    by cal11 voter on Wed Apr 25, 2007 at 01:35:11 PM EST
    is not law.  Goals as first steps?  Baby steps IMHO.

    Ewww, well I WAS happy today (none / 0) (#5)
    by Militarytracy on Wed Apr 25, 2007 at 02:33:44 PM EST
    I'm glad I hire lawyers to read my fine print these days. Now I have to hope that Bush is stupid enough and arrogant enough to veto this.

    Reading over here about the Iraq War (5.00 / 1) (#6)
    by Militarytracy on Wed Apr 25, 2007 at 02:44:07 PM EST
    issue when you are a military family member is exactly like a trip to the lawyers too.  You seldom visit your lawyer when you are happy about something and every time you walk in and sit down it always starts with, "Well, we have some bad news and we have some good news".

    Re standing (none / 0) (#8)
    by Alien Abductee on Wed Apr 25, 2007 at 02:47:43 PM EST
    But you also wrote this recently:

    Any lawyer SHOULD tell you that standing is an utterly ad hoc area of the law. Any judge that wants to hear a case can find standing. Any judge that does not, can choose not to finding standing.

    If this point is really so flexible, why wouldn't it be a good idea to find a sympathetic judge and take this approach?

    Sorry I have been AWOL from the comments (none / 0) (#10)
    by Big Tent Democrat on Wed Apr 25, 2007 at 05:48:15 PM EST
    Busy time right now work wise.

    I thought this was your job! n/t (5.00 / 1) (#12)
    by andgarden on Wed Apr 25, 2007 at 06:25:59 PM EST
    Win the case (s). (none / 0) (#11)
    by Edger on Wed Apr 25, 2007 at 05:51:52 PM EST