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.
Lead Counsel in Kucinich v. Obama