Congress, Constitutional Law, Courts, Lawyering, Military, Politics

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. 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.

  2. In many places a moderate democrat is the best one can do. California is not one of those places.

  3. 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.

  7. 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.

    http://hotlineoncall.nationaljournal.com/archives/2011/10/cardoza-to-anno.php

  10. Sorry, I meant deciding such disputes is the job of the courts, not litigating.

  11. 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.

  13. 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….

  14. A lawyer friend used to joke that “the federal courts claim they only have jurisdiction to decide they don’t have jurisdiction” …

  15. Great clip eniobob!
    Interesting decision Professor. I will have more comments when I get a chance to read the full opinion.

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

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