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Margaret Burnham
Northeastern University School of Law
JURIST Guest Columnist

On February 24, a federal district court dismissed a lawsuit challenging President Bush's authority to wage war against Iraq without explicit congressional authorization. The court ruled the dispute to be a non-justiciable political question. The case is now on an expedited appeal to the First Circuit.

At odds in the suit are two opposing views of the constitutional war powers. On one hand are the proponents of the pro-Congress view who read the text, including the Article I, Section 8 Declare War Clause, as allocating important war powers - especially the trigger power - to Congress. They derive textual meaning from the statements of the Framers and their contemporaries, for example, Thomas Jefferson, who observed that the intent of the Declare War Clause was to restrain the "Dog of War" by "transferring the power of letting him loose from the Executive to the Legislative..."

On the other side of the debate, the pro-executives contend that presidential executive powers are sufficiently expansive to include the complete range of warmaking decisions, including when and how to conduct hostilities. They argue that, historically and in current practice, rarely has war been "declared" and that the Declare War Clause does not exclude initiating war by other means. The structure and text of the Constitution, the pro-executives argue, confers on the executive ultimate authority for foreign affairs, including launching and prosecuting war. The legislative check rests with the appropriations power, not the Declare War Clause.

In defending against the lawsuit, President Bush brushed aside plaintiffs' Declare War Clause argument, making the broad claim that the Constitution presents no bar to a war on Iraq initiated by the White House without congressional assent. In doing so, the Government has, apparently for the first time in litigation, embraced the most extensive assertions of presidential power marked out by pro-executive academics. Under this view, the President can unilaterally launch a premeditated, preemptive all-out war, whenever, in his sole judgment, he deems it necessary to defend the country's national security interests. The Justice Department argues that the President may proceed without consulting Congress, complying with the War Powers Act, or seeking the sanction of the United Nations. The President's power to make war is not, the White House argues, limited to repelling hostilities nor need it be commensurate with the immediacy or the magnitude of the threat. Rather it can be in pursuit of long-term foreign policy objectives. The President need not show that Iraq aided in the terrorist attacks of September 11 or currently supports the Al Qaeda organization. Regime change is, under the Constitution, a permissible war objective for an American president.

In speeches and doctrinal papers, the President has stated his view that an offensive war against Iraq is warranted because the United States cannot "wait for threats to fully materialize" but rather "must take battle to the enemy, disrupt his plans, and confront the worst threats before they emerge." Now, in Doe v. Bush the Government has articulated what it claims to be the constitutional basis for this extraordinary position.

This expansive assertion of executive power reaches far beyond what was necesary to meet the claims in the lawsuit. The plaintiffs in Doe v. Bush, who are members of Congress, military personnel, and their family members, make the familiar argument that the Constitution requires joint legislative and executive action.

They further argue that none of the legislation passed by Congress in the wake of September 11, including last October's Iraq resolution, confers sufficient authority for the war the President is threatening. The October Resolution - House Joint Resolution 114 - purports to authorize the President to "use the Armed Forces of the United States as he determines necessary and appropriate in order to (1) defend the national security of the United States against the continuing threat posed by Iraq; and (2) enforce all relevant United Nations Security Council resolutions regarding Iraq."" Plaintiffs' contention, based on the language and legislative history of the resolution, is that unless narrowly construed, this resolution would be tantamount to congressional abdication of its non-delegable trigger power and would impair separation of powers. And, they contend, such a narrower reading of the statute is plausible, as the statute appears to tie the start of hostilities to the progress of international diplomatic efforts, reflected in the resolutions of the United Nations, to bring Iraq into compliance. Thus, Congress's October Resolution can reasonably be read as expressing three ideas: (1) Congressional support for international diplomacy on the part of the executive; (2) Congressional authority for limited use of force to protect American troops; and (3) the inclination of Congress to provide the necessary assent if the Security Council authorizes the use of force.

Implicated in the questions raised by the suit are the larger debates over originalism and separation of powers that have recently occupied much attention in the Supreme Court. Clearly, clarifying constitutional meaning on the war powers question holds special urgency today.

But in Doe v. Bush the district court declined to join the debate at all. Instead, it opted out of the debate altogether, adopting the Government's position claim that the matter is a non-justiciable political question. Under the political question doctrine, of course, the judiciary declines to wade into certain supposed "political thickets," theoretically leaving the underlying constitutional issue undecided. But, especially given the nature of the debate, invocation of the doctrine - ostensibly to avoid decision - still adds "precedent" to the pro-executive side of the scale. Judicial demurral leaves a vacuum that the executive will fill on its own terms - thereby creating new facts to support its exclusivity claim. The executive's evidence that it possesses the trigger power is that it has many times in the past exercised it absent congressional authority and without judicial interference. This is a win-win syllogism for unchecked executive authority: its use of the power is an unreviewable political prerogative and, ipso facto, proof of its legitimacy, and so the evidence in its favor is infinitely accumulative.

Margaret Burnham is a law professor at Northeastern University School of Law. She co-authored the Plaintiffs' brief in Doe v. Bush.

February 25, 2003


JURIST Guest Columnist Margaret Burnham is a professor at Northeastern University School of Law, where she teaches Constitutional Law, Comparative Constitutional Law, and Federal Courts and the Federal System.

Professor Burnham began her career at the NAACP Legal Defense and Education Fund, litigating school desegregation cases. In 1978, she was appointed an associate justice of the Boston Municipal Court, and in 1989 returned to law practice as a founding partner of Boston's first law firm headed by African American women.

Professor Burnham has held fellowships at Harvard's DuBois Institute and Radcliffe College's Bunting Institute. In 1992, former South African President Nelson Mandela asked Burnham to serve on an international commission that investigated human rights violations committed by the African National Congress. That commission was a precursor to the Truth and Reconciliation Commission established after the 1994 election in South Africa.