Federal Judge Dismisses War Powers Challenge By Members of Congress

Soon after the news that Gadhafi had been shot, Judge Reggie Walton issued an opinion dismiss the lawsuit by members of Congress challenging the war powers claim underlying the intervention in the Libyan war without a declaration of Congress. I represent the members in that litigation. The Court declined to rule on the merits of the constitutional claims and instead held that the court does not have jurisdiction to rule on such questions. Despite the timing, the opinion did not turn on the removal of Gadhafi. The opinion is below.

This is a disappointing but not unexpected decision. I respect Judge Walton and believe that this is a thoughtful opinion. However, I have to respectfully disagree with his analysis. We stated at the outset that we viewed this as a case that would have to be heard by the D.C. Circuit since there is contrary precedent from higher courts. We even stated that in the complaint (which the court acknowledges). While we believed that there was a basis for the district court to distinguish this case, Judge Walton declined to take that approach.

Notably, the court did not rule on the constitutional questions. Instead, the decision holds that a critical part of the Constitution cannot be effectively enforced in the courts. It is a position that runs contrary to the views of the Framers and certainly these members.

I must strongly disagree with the Court’s statement in a footnote that, because the D.C. Circuit previously ruled against members in an earlier challenge, no further challenges should be made by members who disagree. If that were the standard, many of our most famous cases in history, like Brown v. Board of Education, would never have happened. Changes in precedent are often secured only after years, if not decades, of challenges. These members strongly disagree with the D.C. Circuit case law and the only way to ask the Circuit to reconsider those holdings is to first receive a decision from the district court.

I have started to conferral with the members today despite being out of town in Oklahoma City. We previously stated that this issue might have to be resolved by the D.C. Circuit or ultimately the Supreme Court. We are now discussing whether to take that next step.

Jonathan Turley
Lead Counsel in Kucinich v. Obama

Opinion: Memorandum Opinion 10.20.2011 doc. 14

58 thoughts on “Federal Judge Dismisses War Powers Challenge By Members of Congress

  1. Sir….I have searched for the Opinion…..I have not found it posted on line yet…can you provide a link….Thank you…

  2. rafflaw,

    It is a futile act to read the opinion……..It was a good linguistic act to arrive at the conclusion…They knew where they wanted to be and said everything to dance to the end….

  3. This is unfortunate, particularly the court’s conclusion that “plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends” and are basically wasting the court’s time and taxpayer funds by bringing this challenge. Litigating such disputes is the job of the courts, and for a federal judge to criticize a party for bringing non-frivolous litigation raising such important issues is very troubling indeed.

  4. No one has standing when it comes to Obama.

    So instead people just quit, or get taken out if they don’t, Know what I mean, Vern.

    Rep. Dennis Cardoza, D-Calif., announced his retirement from Congress this afternoon — and he issued a scathing parting shot at President Obama’s track record on his way out.

    Cardoza is the sixth member — all Democrats — to announce plans to retire outright so far. He’s also the third member of the Blue Dog Caucus to head for the exits — joining fellow moderate Reps. Dan Boren, D-Okla., and Mike Ross, D-Ark.


  5. Bdaman, ‘moderate’ is in the eye of the beholder. The Republicans in Democrat clothing should not let the doorknob hit them in the butt on the way out.

  6. SwM,
    Lindsay Graham is from South Carolina, same as Jim DeMint and the late (and not particularly lamented) Strom Thurmond. Need I say more?

    Gotta get that colored fella and his colored wife and kids out of ‘our’ White House, doncha know.

  7. Cardoza’s district was carved up, and the blue dogs are a dying breed.

    The whole democratic party is a dying breed and you guys can thank Obama for that.

  8. bdaman, You hope. Your party could resurrect us yet. I am counting on Perry, Cain or even Mr Wall Street, Mitt Romney.

  9. Actually Bron I’m rethinking this whole Obama thing.


    If he can get Asaad Amadenajohn however you spell his name I might vote for Obama in 2012. Who cares if he keeps doin shit like this.

    Car Company Gets U.S. Loan, Builds Cars In Finland
    With the approval of the Obama administration, an electric car company that received a $529 million federal government loan guarantee is assembling its first line of cars in Finland, saying it could not find a facility in the United States capable of doing the work.


  10. I fail to see any indication that our founders did not approve of such actions. In fact, the very first wars we fought were done at the direction of Jefferson with no declaration of war from Congress, the Barbary wars I and ii. Those were the founders who were alive then, and since they had no problem fighting those undeclared wars, I find it hard to see that what Obama is doing in a limited manner is anything different. In those wars, we actually had US troops on the ground fighting in the same area too.

    There are ample legislative rememdies as well, such as cutting off funds, passing a resolution to stop such activity, and eventually impeachment. I have to admit the judge has a point when he observes that the only thing Kucenich wants to do is reverse the vote he lost on. He is seeking to use the court, to win what he could not do in Congress.

  11. … and pretty soon (if not already), this lawsuit is futile because the federal courts will say it’s moot, because the Libya war is over. Regrettable since it appears the Obama Administration has defied the War Powers Act and gotten away with it.

    The Supreme Court’s narrow view of standing makes it very difficult for mere legislators or taxpayers to bring Constitutional cases. It seems to me the mistake in these cases challenging military action is the failure to enlist as plaintiffs some people whose lives are directly threatened. In the case of Libya, that might be civilians at risk of being bombed or caught in crossfire. (In theory, I suppose Qaddafi could have sought relief in federal court, but he would have been an unsympathetic litigant…) Or, US military personnel ordered into the war zone. Easier done with a ground war – not many pilots are going to sue.

    One could try to argue that as a citizen, American attacks on a foreign country raise one’s risk of being attacked in retaliation. I think New Yorkers are best situated to make this claim, when the target of our attacks is an Arab or Muslim nation: Al Qaeda has made numerous attempts to bomb New York besides the two that succeeded (1993 and 9/11/01).

    Americans resident in the country under attack can also make a standing claim that seems pretty strong to me. If they choose to remain in the country, they face physical harm from our bombs and artillery, as well as retaliation by the locals (think Daniel Pearl etc.) If, on the other hand, they choose to leave, they can fairly assert that the US military action has harmed them in their business interests, right to travel, etc.

    I haven’t researched it, but I would not be surprised to learn someone has tried to get over the “standing” hurdle in past cases (Nicaragua?) with arguments like the ones above – and failed. Given the Supreme Court’s reluctance to confront the Executive branch over the Commander in Chief’s powers, I’d expect pretzel logic.

    Still, in future challenges to undeclared wars, I’d suggest finding better plaintiffs.

  12. Here’s how some are seeing this:

    Federal Judge Shoots Down Congress’ Challenge To Obama’s Commitment To Ousting Gaddafi

    “WASHINGTON — As news spread of Muammar Gaddafi’s demise on Thursday, a federal judge in Washington shot down a lawsuit by 10 members of the House of Representatives claiming that President Obama’s Libyan intervention is against the law.

    In the suit, Rep. Dennis Kucinich (D-Ohio) and his co-plaintiffs alleged that Obama went to war without congressional declaration or approval as required by constitutional and statutory law. But rather than squarely address these claims, Judge Reggie Walton ruled that the plaintiffs, whether as members of Congress or as taxpaying citizens, simply had no standing to sue.”


  13. Bruce and eniobib…

    In my opinion you have it right…..Now except for dispensing with the Oil and Minerals our work is done…..They should know that they merely own the sand…..

  14. Look what happened to Nazi Berlin.

    If Americans don’t get all the Zionist Nazis out of the U.S. Government – Washington, DC could have the same fate as Nazi Berlin.

    Helen Thomas: “Zionist are the new NAZI’S. Congress, the White House and Hollywood, Wall Street are owned by the Zionists.” The media is also owned by the Zionist Warmongers.

  15. The Zionist Warmongers = US Government will not allow a truthful investigation of 9/11.


    Architects & Engineers – Solving the Mystery of WTC 7 – AE911Truth.org

    NIST, the National Institute of Standards and Technology LIED in final government report! WTC 7 did NOT come down from office furnishings fires.

    “The following documentary includes several of the dozens of technical and building experts that were interviewed and that appear in our forthcoming full length documentary – 9/11: Explosive Evidence – Experts Speak Out. Altogether of course there are more than 1,500 Architects & Engineers that have signed the AE911Truth petition calling for a new investigation of the destruction of all 3 high-rises at the World Trade Center on 9/11.”

  16. “Notably, the court did not rule on the constitutional questions. Instead, the decision holds that a critical part of the Constitution cannot be effectively enforced in the courts. It is a position that runs contrary to the views of the Framers and certainly these members.”

    So, if Congress as a body (primarily the House) is too corrupt to protect the peoples power and the court says it’s not the courts business, that leaves what exactly as a vehicle for redress? Burning torches and pitchforks?

  17. I am surprised you don’t know the answer to your question. It is called elections. Just because you lose or don’t like the outcome hardly makes it either illegal or unconstitutional.

  18. Great link, lottakatz.

    That’s first I’d heard of Obama’s willingness to gut Sarbanes-Oxley for his corporate puppet masters.

    As revolting as that is, at this point I am hardly surprised.

  19. LK;

    Let me add this to your post by Rolling Stone:

    “Dear Occupy Wall Street Protesters,
    I haven’t felt so thrilled since I learned to ride a bicycle. You are the only authentic—what to call you?—response to what is really happening in this country to have come along in many years. You embody my dream combination of human qualities: honesty, anger and playfulness. Of course I am therefore waiting in dread for the other shoe to drop. One after the other, the most subversive developments in American life get comfortably absorbed by mainstream society (remember when “free love” struck fear into the hearts of the middle class?). You will find that the embrace of sudden new friends is the kiss of death. The cameras will nudge your simplicity into crudity. You will become harnessed not just to the hidden political agendas of other people, but to their professional ambitions. Think “Meet John Doe.” Think (to take an extreme example). “Taxi Driver.”


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