Today, I have the honor of representing ten members of the United States House of Representatives in challenging the constitutional basis for the Libyan War — and the underlying claims made by President Obama. These members include Democrats and Republicans from across the political spectrum. They share a belief that Article I, Section 8 of the Constitution expressly requires the authorization of Congress before a president can commit the nation to war. The lawsuit will be heard in the United States District Court for the District of Columbia. We filed this afternoon and held a press conference with the members in front of the courthouse. A copy of the complaint (which will be heard by Judge Reggie Walton) is below.
This challenge goes beyond Libya and challenges the claim by the Administration that the President has the inherent authority to order combat operations without the approval or declaration of Congress. The Plaintiffs in this action include the second most longest standing member of Congress, John Conyers, as well as leading members from both parties. The members are Representatives Roscoe Bartlett (R., Md); Dan Burton (R., Ind.); Mike Capuano (D., Mass.); Howard Coble (R., N.C.); John Conyers (D., Mich.); John J. Duncan (R., Tenn.); Tim Johnson (R., Ill.); Walter Jones (R., N.C.); Dennis Kucinich (D., Ohio); and Ron Paul (R., Tx).
This is an action for injunctive and declaratory relief. In addition to challenging the circumvention of express constitutional language, it will also challenge arguments that no one (including members of Congress) has “standing” to submit this question to judicial review. These members will ask the federal district court for review of the constitutional question and for recognition that the Constitution must allow for judicial review of claims of undeclared wars under Article I.
I am being assisted in this case by a team including Jodie Cheng, David Fox, Kyle Noonan, Eric Sidler, and Geoff Turley (no relation to Professor Turley).
We are deeply honored to represent these courageous members of Congress in their defense of important constitutional limitations on executive power. While there are many uncertain questions under the Constitution, this is not one of them. The Framers spoke repeatedly and forcibly of their desire to bar presidents from committing the nation to war without congressional authorization and inserted an express limitation into Article I. The last few years have vividly demonstrated the dangers that the Framers sought to avoid in dividing the war powers between the Executive and Legislative branches. Despite their sharp ideological differences, these members are bond by deep faith in the Constitution and a sense of responsibility in defending its provisions. We shall their concerns and are eager to advance their claims in the Judicial Branch in this lawsuit.
As in past high-profile cases, I will have to be circumspect in my public comments once the case is filed.
Here is the filed complaint: Libyan Complaint;pdf
Jonathan Turley
PREDICTION:
The courts will punt on the issue, reasoning that if Congress does not approve of the president’s decision, they can cut-off funds for the operation. If the president resists, the Congress can impeach.
Les, the reason the politics of the situation is noted at all is that some of these same people were cheering the loudest when it was Boy Blunder and his Super Friends stomping on the Constitution. The (well-founded) belief is that the election of a white, male, Republican President will again dampen their enthusiasm for this effort.
Since everything that group does is based on what is good for the Party & ignores what is good for the country unless it accidentally fits their immediate need we are naturally nervous to side with them.
Where were these people 8 years ago?
rafflaw
I think that’s probably true. Can you imagine Cheney with a DoW under his belt? “Be careful what you wish for”, once again.
Buckeye,
Interesting link! These powers could explain why Congress has generally gone along with Presidential abuses in the past.
Les,
The reason it is important to note the affiliations of anyone involved is because usually there is a reason why some people get involved in a lawsuit like this that goes beyond the constitutional issues. Hypocrisy has a tendency to rear its ugly head whenever the tea party is involved.
A declaration of war triggers 170 statutes which give the President and the Secretary of Defense immense power, which may be why none have been issued since WW II.
http://www.ndu.edu/library/docs/crs/crs_rl31133_14jan03.pdf
It’s interesting and a little sad that to some, what’s important here isn’t the objection to illegal acts of war (which is the most serious action one country can undertake) by a President who has overseen the destruction of thousands of innocent lives at home and abroad, but rather the political affiliation of some of the people who are objecting.
This is the first very good news in a very long while.
This action exemplifies the just cause of a bona fide constitutional attorney/scholar contesting a bogus lawyer/president who projects the antithesis of respecting and adhering to the U.S. Constitution.
First time comment. Although Burton and his close pals in this group have earned from me much justified derision, and although I did and still do support this president, shortcomings, failings and all, I too believe the boundary has been not just stepped over, but trampled by an imperial presidency legacy held over from the Shrub/Dick days. Pull your head out, Barack.
Most excellent. Good luck. I hope the Constitution, your case, wins.
Ron Paul is the best of that tea party crew.
I just finished reading the complaint and I’d like to say good luck, Professor.
And even though I’m now in the unfortunate situation of having to cheer on Ron Paul it is compensated by being able to cheer on Dennis Kucinich as well as you our munificent host.
War Powers Act Does Not Apply to Libya, Obama Argues
By CHARLIE SAVAGE
Published: June 15, 2011
WASHINGTON — The White House is telling Congress that President Obama has the legal authority to continue American participation in the NATO-led air war in Libya, even though lawmakers have not authorized it.
…
“We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”
http://www.nytimes.com/2011/06/16/us/politics/16powers.html?_r=1&pagewanted=all
By this reasoning, the president can deplete the defense resources of this country by scattering it around the world in missions he deems not the ‘kind of hostilities envisioned by the War Powers Resolution.’
The Constitution expressly and exclusively vests in the legislature the power of declaring a state of war; it was proposed that the executive might, in the recess of the legislature, declare the United States to be in a state of war.
The Constitution expressly and exclusively vests in the legislature the power of raising armies: it was proposed, that in the recess of the legislature, the executive might, at its pleasure, raise or not raise an army of ten, fifteen, or twenty-five thousand men.
The Constitution expressly and exclusively vests in the legislature the power of creating offices; it was proposed that the executive, in the recess of the legislature, might create offices, as well as appoint officers, for an army of ten, fifteen, or twenty-five thousand men.
A delegation of such powers would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments.
The separation of the power of declaring war from that of conducting it is wisely contrived to exclude the danger of its being declared for the sake of its being conducted.
The separation of the power of raising armies from the power of commanding them is intended to prevent the raising of armies for the sake of commanding them.
The separation of the power of creating offices from that of filling them is an essential guard against the temptation to create offices for the sake of gratifying favorites or multiplying dependents.
Where would be the difference between the blending of these incompatible powers, by surrendering the legislative part of them into the hands of the executive, and by assuming the executive part of them into the hands of the legislature? In either case the principle would be equally destroyed, and the consequences equally dangerous.
An attempt to answer these observations by appealing to the virtues of the present chief magistrate and to the confidence justly placed in them will be little calculated either for his genuine patriotism or for the sound judgment of the American public.
The people of the United States would not merit the praise universally allowed to their intelligence if they did not distinguish between the respect due to the man and the functions belonging to the office. In expressing the former, there is no limit or guide but the feelings of their grateful hearts. In deciding the latter, they will consult the Constitution; they will consider human nature, and, looking beyond the character of the existing magistrate, fix their eyes on the precedent which must descend to his successors.
~James Madison ,“Political Observations” (20 April 1795).
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Mike Appleton: “I expect the court will turn itself into knots trying to find a way to treat the issues as non-justiciable political questions.”
I’m keen to see how the issue plays out within the complaint.
I think you have a winner here. I’ve long questioned the propriety of the War Powers Act which authorizes short-term military actions by the President with notice to Congress within 48 hours and troop committments of up to 60 days with a 30 day extension under certain circumstances. The value of Article 1, Sec. 8 is the restraint on the Executive’s ability to commit the nation to foolish wars.
“”The constitution supposes, what the History of all Governments demonstrates, that the Executive is the branch of power most interested in war, and most prone to it. It has accordingly with studied care vested the question of war to the Legislature.”
~James Madison’s letter to Thomas Jefferson (1798)
Jefferson apprently took it to heart:
“Considering that Congress alone is constitutionally invested with the power of changing our condition from peace to war, I have thought it my duty to await their authority for using force in any degree which could be avoided.”
~Thos. Jefferson, Message to Congress (1805)
I am glad that the suit was filed and I wish Prof. Turley well in his efforts to rein in a runaway Executive Branch. That being said, I do have the same concerns that Swarthmore Mom has about the Tea Party members who have signed on to this cause. Gyges is probably right that they are signing on for political reasons, but we need to be out of Libya and Iraq and Afghanistan, as well. Will he case discuss the need for a real Congressional approval for our actions in Iraq and Afghanistan(and Yemen and Pakistan)?
Can anyone comment on the timeline for processing this through the federal district court or guess on how long before a ruling if the court takes up the issue?
If the executive branch loses, what are the implications, and what actions can the court mandate?
I am pleased to see this suit filed and look forward to reading the complaint. I expect the court will turn itself into knots trying to find a way to treat the issues as non-justiciable political questions.