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
BVM,
And what is your point…
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…..
WASHINGTON, DC = NAZI BERLIN
THE NAZI U.S. GOVERNMENT HAS INVADED AS MANY COUNTRIES AS HITLER.
OBAMA IS A BLACK HITLER!
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.”
http://www.huffingtonpost.com/2011/10/20/challenge-obama-commitment-ousting-gaddafi_n_1023014.html
bdaman/bron
you’re never alone when you’re schizophrenic.
… 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.
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.
I agree with your comments, OS, about Linsay Graham who has not seen a war or an oil well that he didn’t like.
This should be his official campaign song for 2012
Bdaman:
you have a point, he is getting it done.
is this frightening?
Actually Bron I’m rethinking this whole Obama thing.
Osama
Kadafi
Mubarak
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.
http://abcnews.go.com/Blotter/car-company-us-loan-builds-cars-finland/story?id=14770875
Bdaman:
that was pretty good.
No, I knew, you hoped and got short changed 🙂
Thurmond was a RINO he was a democrat at heart.
bdaman, You hope. Your party could resurrect us yet. I am counting on Perry, Cain or even Mr Wall Street, Mitt Romney.
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.