UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Tom Campbell, a member of the United States :
House of Representatives, 2442 Rayburn :
House Office Building, Washington, DC :
20515, et al., :
: Civil Action No. 99 CV 01072
Plaintiffs : (PLF)
William Jefferson Clinton, President of :
the United States, 1600 Pennsylvania :
Avenue NW, Washington, DC 20500 :
MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT
H. LEE HALTERMAN JULES LOBEL
405 14th Street MICHAEL RATNER
Suite 1208 FRANKLIN SIEGEL
Oakland, CA 94612 WILLIAM GOODMAN
(510) 663-0936 JENNIFER GREEN
Center for Constitutional Rights
666 Broadway, 7th Floor
JOEL E. STARR New York, New York 10012 Bar No. 405645 (212) 614-6464 2442 Rayburn House Office Building
Washington, DC 20515 JAMES KLIMASKI
(202) 225-2631 Bar No. 243543
KLIMASKI & MILLER, P.C.
1899 L Street NW
Washington, DC 20036
Attorneys for the Plaintiffs
New York, New York
May 20, 1999
TABLE OF CONTENTS
TABLE OF AUTHORITIES.......................................................................................................ii
STATEMENT OF FACTS..........................................................................................................3
- The Situation in Kosovo and the U.S. Military Response......................................3
- Congressional Action...........................................................................6
I. PRESIDENTIAL INITIATION AND CONTINUATION OF THE WAR AGAINST YUGOSLAVIA WITHOUT CONGRESSIONAL AUTHORIZATION VIOLATES THE CONSTITUTION............................................................................................................7
- The Constitution Vests the Power to Initiate War in Congress..............................7
- The Present Military Action Against Yugoslavia Constitutes War for Constitutional Purposes......................................................................................12
- Congress has Refused to Authorize the Current War Against Yugoslavia............19
II.. THE WAR POWERS RESOLUTION REQUIRES THE PRESIDENT TO TERMINATE THE USE OF UNITED STATES ARMED FORCES IN THE FEDERAL REPUBLIC OF YUGOSLAVIA BY MAY 25, 1999.....................................................20
- The WPR's Reporting Requirement....................................................................21
- The WPR's Termination Requirement...........................................................25
- Congress has Refused to Give Authority Required by the WPR..........................28
- Plaintiffs' Claim Under the WPR is Justiciable............................................30
- Plaintiffs Have a Private Cause of Action Against the President Under the WPR.32
III. THE COURT SHOULD DECIDE THIS CASE.............................................................36
TABLE OF AUTHORITIES
Ange v. Bush, 752 F. Supp. 509 (1990) 30, 35
Bas v. Tingy, 4 U.S. 322 (4 Dall. 37) 1800 9
Berk v. Laird, 429 F.2d 302 (2d Cir. 1970) 10, 33, 40
*Cannon v. University of Chicago, 441 U.S. 677 (1979) 32, 33, 34
*Coleman v. Miller, 307 U.S. 433 (1939) 38, 39
*Cort v. Ash, 422 U.S. 66 (1975) passim
*Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff'd, 720 F.2d 1355 (D.C. Cir. 1983) passim
*Dellums v. Bush, 752 F. Supp. 1141 (D.D.C. 1990) passim
Goldwater v. Powell, 444 U.S. 997 (1979) (Powell, J., concurring) 37
Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 937 (1974) 10
J.I. Case v. Borak, 377 U.S. 426 (1984) 34
Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) 31, 35
*Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973) passim
Morse v. Republican Party of Virginia, 517 U.S. 186 (1996). 33, 34
Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert. denied, 416 U.S. 936 (1974) 10, 40
*Raines v. Byrd, 117 S. Ct. 2312 (1997) 38, 39
Talbot v. Seeman, 5 U.S. 331 (1 Cranch) 1, 28 (1601) 9
Thompson v. Thompson, AKA Caly, 484 U.S. 174 (1988) 32
United States v. Smith, 27 Fed. Cas. 1192 (C.C.D.N.Y. 1806) (No. 16,342) 9
Statutes and Regulations
*U.S. Constitution, War Powers Clause, Article I, § 8, Clause 11 2, 35, 41
War Powers Resolution
50 U.S.C. § 1541 12, 19, 32
*50 U.S.C. § 1543 passim
*50 U.S.C. § 1544 passim
*50 U.S.C. § 1545 passim
*50 U.S.C. § 1546 passim
50 U.S.C. § 1547 passim
Ackerman et al., letter dated Oct. 14, 1994, reprinted 89 Am. J. Int'l L. 127 (1995). 12
Culp & Pierce, Jr., 2 III Administrative Law Treatise (3d ed. 1999), § 18.5 at 190. 35
Bickel, Congress, the President and the Power to Wage War, 48 Chi.-Kent L. Rev. 1313 (1971) 11
Biden & Pitch, The War Power at a Constitutional Impasse: A Joint Decision Solution, 77 Geo L.J. 367 (1988) 13
Cong. Rec. Apr. 28, 1999, H2427 19, 37
Cong. Rec. Apr. 28, 1999, H2450 19
Cong. Rec. Apr. 28, 1999, H2451 19
Cong. Rec. Apr. 28, 1999, H2452
119 Cong. Rec. 1401 (1973) 26
119 Cong. Rec. 24653 (1973) 31
119 Cong. Rec. 33038 (1973) 25
Corn, Presidential War Power: Do the Courts Offer Any Answers?, 157 Mil. L. Rev. 180 (1998) 13
Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (1993) 11, 12
Fisher, Presidential War Power (1995) 11
Friedman, Waging War Against Checks and Balances--The Claim of an Unlimited Presidential War Power, 57 St. John's L. Rev. 213 (1983) 11
Gates, In War, Mistakes Happen, N.Y. Times, May 12, 1999, at A27 17
A. Hamilton Pacificus No. 1, in 15 Papers of Alexander Hamilton 40 (H. Syrett ed., 1969) 8
L. Henkin, Constitutionalism, Democracy and Foreign Affairs 40 n.* (1990) 12
L. Henkin, Foreign Affairs and the Constitution 100 (1972) 11
Letter of Asst. Attorney General Walter Dellinger, Sept. 27, 1997, reprinted at 89 Am. J. Int'l L. 122 (1995) 14
Letter from Lincoln to W.H. Herndon, Feb. 15, 1848, quoted in A. Schlesinger, Jr., The Imperial Presidency 43 (1973) 7
Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale L.J. 672 (1972) 11
Madison, Helvidius No. 4, in 6 Writings of James Madison 174 (G. Hunt ed. 1906) 8
Moore, Emergency War Powers, the U.S. Constitution and the Power to Go to War, 159, 161, in The U.S. Constitution and the Power to Go to War (Gary Stein & Morton Halper eds., 1994) 13
Moore, The National Executive and the Use of the Armed Forces Abroad, in 2 The Vietnam War and International Law 808 (Falk ed., 1969) 13
Mudre, The Collected Papers of the John Bassett Moore 196 (1944) 18
Note, Congress, the President and the Power to Committ Forces to Combat, 81 Harv. L. Rev. 1771 (1968) 11
Reveley, War Powers of the President and Congress: Who Holds the Arrows and the Olive Branch? (1981) 11
Rogers, Congress, the President and the War Power, 59 Cal. L. Rev. 1194 (1971) 12
A. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins 32 (1976) 8
Spiro, War Powers and the Sirens of Formalism, 68 N.Y. U. L. Rev. 1338 (1993) 13
2 The Debates in Several State Conventions on the Adoption of the Federal Constitution in 1787, 528 (J. Elliot, 2d ed. 1836). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
The Federalist No. 75, at 506 (A. Hamilton) (J. Cooke ed., 1961) 7
15 The Papers of Thomas Jefferson 397 (J. Boyd ed. 1951) 7
1 The Records of the Federal Convention of 1797, 316 (M. Farrand ed., 1911) 7
Michael D. Towell, Arrival of Apaches Will Bring War Down to Ground, Buffalo News, Apr. 28, 1999, at A6 17
Tribe, The Legislative Veto Decision: A Law by any Other Name, 21 Harv. J. on Legis. 1, 20 n.95 (1984) 22
Velvel, The War in Vietnam: Unconstitutional, Unjusticiable, and Jurisdictionally Attackable, 16 Kan. L. Rev. 449 (1968) 11
Wormuth & Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (2d ed. 1989) 11
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Tom Campbell, a member of the United States :
House of Representatives, 2442 Rayburn :
House Office Building, Washington, DC :
20515, et al., :
: Civil Action No. 99 CV 01072
Plaintiffs : (PLF)
William Jefferson Clinton, President of :
the United States, 1600 Pennsylvania :
Avenue NW, Washington, DC 20500 :
MEMORANDUM IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT
This case poses the extraordinarily important question for our country of whether the Constitution and the War Powers Resolution (WPR) prevent the President, acting alone and without the approval of a Congress that specifically addressed the issue, from continuing offensive military action against the Republic of Yugoslavia.
The question is asked in a unique context that has not arisen in prior suits challenging Presidential war making. Not since the Vietnam war and the passage of the WPR has a President engaged in an armed conflict of such length, magnitude and duration without the consent of Congress. Nor since that war has a President engaged United States Armed Forces in such massive and prolonged hostilities in the face of a congressional vote, explicitly on point, refusing him the authority to do so.
As a constitutional matter, this case asks whether the President can commit United States Armed Forces into offensive and sustained combat without the affirmative approval of Congress given by means of a declaration of war or other specific authorization. That question in its current posture is especially appropriate for this Court to decide. Congress has not merely remained silent; it has spoken by voting not to consent to the air war against Yugoslavia.
This case also asks whether the President can disregard and treat as a nullity the termination requirements of the War Powers Resolution. On May 25, the sixty-second day of hostilities against Yugoslavia, the WPR requires the President to terminate any use of United States Armed Forces against Yugoslavia. If the President fails to do so, it will represent the first time that a President has continued hostilities past the termination deadline of the WPR. He will be doing so despite Congress' vote upon and rejection of various resolutions that would have constituted the authority he needed under the WPR. Congress has already acted. This is the time for the Court to act.
Plaintiffs are not asking the Court to order the President to end U.S. involvement in Yugoslavia; nor are they asking for an injunction forbidding air strikes against Yugoslavia. Plaintiffs seek only a declaration (1) that the continued military attack on Yugoslavia violates Article I, Clause 11, Section 8 of the Constitution because it does not have the requisite consent of Congress and (2) that the continuing hostilities against Yugoslavia violate the termination provisions of the WPR. Once those declarations have been made, the relations between the Executive and the Legislative branches will have been set right -- and they can proceed to deal together with the difficult policy issue presented by the situation in Yugoslavia.
This memorandum of law deals first with the constitutional question of whether the President can continue the war against Yugoslavia -- where Congress, having addressed the issue, voted to withhold its authorization. This memorandum then considers the statutory issue of applying the automatic termination provision of the WPR after sixty-two days of hostilities -- in the absence of specific Congressional authorization. Lastly, the third part of this memorandum discusses the justiciability of this case.
STATEMENT OF FACTS(1)
A. The Situation in Kosovo and the U.S. Military Response
On March 24, 1999, President Clinton announced that U.S. Armed Forces, along with military forces from the North Atlantic Treaty Organization nations (hereinafter "NATO"), had begun air strikes against Serbian military targets in the former Yugoslavia.(2) On March 26, the President submitted a report to the Speaker of the House of Representatives and the President pro tempore of the Senate stating that "...on March 24 U.S. military forces...began a series of air strikes in the Federal Republic of Yugoslavia." President Clinton asserted that he ordered United States forces into action "pursuant to my constitutional authority to conduct U.S. foreign relations and as Commander-in-Chief and Chief Executive."(3)
Since March 24, NATO has engaged in daily air operations against Serb targets in Kosovo and Serbia.(4) There has been a steady buildup of military capacity.(5) As of May 6, 1999, 800 U.S. airplanes have been committed to Operation Allied Force.(6) As of May 14, there have been a total of 20,772 air sorties, of which 7,135 were strike sorties,(7) and over 9,000 munitions have been launched at over 1,900 targets.(8) At the end of the current on-going buildup of air power for Operation Allied Force, the NATO Air Armada will total 1,259, of which 982, or almost 80%, will be U.S. aircraft.(9) General Joseph Ralston, Vice Chairman of the Joint Chiefs of Staff has termed the military operation over Kosovo to be "a major war theatre, as far as the air war is concerned."(10)
Within a week of the commencement of NATO air strikes against Yugoslav military targets, Serbian forces stepped up their activities against residents of Kosovo,(11) setting off the flight of over one million Kosovars displaced from their homes and villages, many seeking safety and refuge in neighboring states of Albania, Macedonia and Montenegro.(12) In response, President Clinton told congressional leaders, "[w]e will continue to intensify our actions to achieve the objectives I described in my report to Congress of March 26 and to support the international relief efforts being conducted in the region."(13) President Clinton reiterated the open-ended extent of the United States' commitment:
It is not possible to predict how long either of these operations will continue. The duration of the deployments depend upon the course of events in Kosovo, and in particular, on Belgrade's conduct with respect to its campaign of ethnic cleansing and the duration of the threat posed to peace and security in the region.(14)
Similarly, Secretary of State Madeline Albright has stated that "As the President and our military leaders have made clear, this struggle may be long."(15)
On April 12, President Clinton designated the Federal Republic of Yugoslavia, (including Serbia and Montenegro), Albania, the Adriatic Sea and the Ionian Sea north of the 39th parallel, as areas in which Armed Forces of the United States are engaged in combat.(16) The designation was retroactive to March 24, 1999.
Throughout April and into early May, the NATO air operations continued to grow in intensity and impact.(17) The U.S. and NATO forces have inflicted substantial casualties to Yugoslav military forces, have "severely damaged Yugoslavia's military and industrial capacity," (Plaintiffs' Statement of Material Facts Not In Dispute ¶ 16, hereinafter, "¶") and have inflicted significant casualties and hardships on Yugoslavia's civilian population. ¶ ¶ 39, 40. U.S. officials have referred to our air attacks as inflicting "heavy damage" and a "heavy price" on Serbian forces in Kosovo and as "decimating the forces on the ground." ¶ 35. United States forces have bombed bridges, power lines, industrial facilities, oil refineries and other targets throughout Yugoslavia.(18) United States forces have destroyed a substantial part of Yugoslavia's military equipment and capacity.(19)
Finally, United States officials have stated that the air offensive against Yugoslavia will escalate in the coming weeks. U.S. General Wesley Clark, the NATO Commander, stated on April 27, 1999, that the air strikes thus far have "been only a fraction of what is to come." Indeed, since the end of April the United States and its NATO allies have significantly expanded its air operations. Defense Department officials assert that "the destruction will accelerate." ¶ ¶ 45, 31.
B. Congressional Action
To date, the Congress has considered several pieces of legislation. The Senate passed a resolution authorizing the President to conduct military air operations and missile strikes in cooperation with NATO against the Federal Republic of Yugoslavia on March 23, 1999, but the House of Representatives rejected that authorization in a tie vote on April 28, 1999.(20) On April 28, the House also defeated a measure declaring a state of war between the United States and the Federal Republic of Yugoslavia,(21) and a measure directing the President to remove U.S. Armed Forces from present operations against the Federal Republic of Yugoslavia.(22) On April 20, Senator John McCain and others introduced a joint resolution authorizing the President to use all necessary force in concert with United States allies to accomplish United States and NATO objectives in the Federal Republic of Yugoslavia.(23)
Neither house of Congress has acted on that resolution. Despite the House of Representatives' decision to reject authorization of the war, the President continues to wage war against Yugoslavia.
I. PRESIDENTIAL INITIATION AND CONTINUATION OF THE WAR AGAINST YUGOSLAVIA WITHOUT CONGRESSIONAL AUTHORIZATION VIOLATES THE CONSTITUTION
A. The Constitution Vests the Power to Initiate War in Congress
Our Constitution provides that a decision to initiate war be made by Congress. The framers were opposed to giving one person the power to initiate war. As Alexander Hamilton explained, certain interests were "so delicate and momentous" that entrusting them "to the sole disposal" of the President is unwise. The Federalist No. 75, at 506 (A. Hamilton) (J. Cooke ed. 1961) (discussing treaty power). As a Congressman, Abraham Lincoln argued that the Constitution's intent was "that no one man should hold the power of bringing this oppression (war) upon us." Letter from Lincoln to W.H. Herndon, Feb. 15, 1848, quoted in A. Schlesinger, Jr., The Imperial Presidency 43 (1973).
The framers were concerned with ensuring that the judgment to initiate war would not be lightly made. James Madison spoke of war as "among the greatest of national calamities," while Thomas Jefferson desired an "effectual check to the Dog of War," and George Mason was "for clogging, rather than facilitating war." 1 The Records of the Federal Convention of 1797 316 (M. Farrand ed. 1911, hereinafter "Records"); 15 The Papers of Thomas Jefferson 397 (J. Boyd ed. 1951); 2 Records, supra at 319. James Wilson, one of the most important participants at the Philadelphia Convention, explained the rationale for giving to Congress the power to initiate war:
This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: and this declaration must be made with the concurrence of the House of Representatives: from this circumstance we may draw a certain conclusion that nothing but our national interest can draw us into a war.
2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution in 1787 528 (J. Elliot 2d ed. 1836).
The Constitution therefore explicitly vests the power to declare war in Congress. Originally the clause provided that Congress "make" war, but it was changed to "declare" in order to give the President "the power to repel sudden attacks," and to clarify that it was the Executive's function to "conduct" the war once Congress authorized it. See 2 Records, supra at 318 (Madison) and at 319 (King). As Judge Abraham Sofaer, a former legal adviser to the State Department, has noted, "nothing in the change signifies an intent to allow the President a general authority to 'make war' in the absence of a declaration; indeed, granting the exceptional power suggests that the general power over war was left in the legislative branch." A. Sofaer, War, Foreign Affairs and Constitutional Power: The Origins 32 (1976). Six years after the Constitution's adoption, Hamilton argued that the "legislature has a right to make war," and it is therefore the "duty of the President to preserve the peace till war is declared." A. Hamilton, Pacificus No. 1, in 15 Papers of Alexander Hamilton 40 (H. Syrett ed. 1969). Madison wrote that "in no part of the Constitution is more wisdom to be found, than in the clause which confides the question of war or peace to the legislature, and not to the executive department." Helvidius No. 4, in 6 Writings of James Madison 174 (G. Hunt ed. 1906). These framers agreed that the power to declare war was synonymous with the power to initiate it. To read the clause otherwise would be to negate it, since the President could always simply begin a war without a declaration.
This unambiguous constitutional mandate was to ensure that the United States would not engage in warfare without a clear mandate from the legislature. The President's power as Commander-in-Chief does not allow him to violate the explicit Article I mandate that Congress initiate war. The Commander-in-Chief power permits the President to conduct a war once it has been declared by Congress, not to initiate one himself. As Alexander Hamilton explained in the Federalist Papers:
[T]he President is to be Commander in Chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the King of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and Admiral of the confederacy; while that of the British King extends to the declaring of war and to the raising and regulating of fleets and armies; all which by the Constitution under consideration would appertain to the Legislature.
Federalist No. 69, supra at 465.
Courts have been virtually unanimous in finding that a decision to wage a war requires prior congressional approval, except to respond to an enemy attack. In Bas v. Tingy, 4 U.S. 322, (4 Dall. 37) (1800), the Supreme Court concluded that even "imperfect war," "more confined in its nature and extent," "being limited as to places, persons, and things," was within Congress' power to initiate as the "constitutional authority of our country." 4 U.S. at 325, 327, 332. One year later, Chief Justice Marshall stated that Congress may authorize general or partial war, and that "[T]he whole powers of war being, by the Constitution of the United States, vested in Congress, the acts of that body can alone be resorted to as our guides in this inquiry." Talbot v. Seeman, 5 U.S. 331, 333 (1 Cranch 1, 28) (1601).
In 1806, Justice William Paterson, a member of the Constitutional Convention, held that presidential authorization of a hostile military expedition against another nation would not immunize the private persons involved in such an expedition from prosecution, since the President could not go to war with another country but only repel an "actual invasion." "In the former case, it is the exclusive province of Congress to change a state of peace into a state of war." United States v. Smith, 27 Fed. Cas. 1192, 1230-31 (C.C.D.N.Y. 1806) (No. 16,342).
Modern judicial interpretations of the War Powers Clause have reached the same conclusion. Every Vietnam War era case that reached the merits of the issue concluded that the Constitution required congressional authorization of that war. This Circuit held that the Constitution requires that Congress affirmatively authorize war, except where the President acts to repel an enemy attack or to respond to a grave emergency where the nation might be defeated or crippled before Congress could act. Mitchell v. Laird, 488 F.2d 611, 613-14 (D.C. Cir. 1973). The Second Circuit reached a similar conclusion in holding that the constitutional command requires the mutual participation of both Congress and the President in the decision to initiate a war. Berk v. Laird, 429 F.2d 302, 305 (2d Cir. 1970); Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869 (1971); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974). As the court in Berk found, the congressional power to declare war is not merely an "antique formality":
[T]he power to commit American military . . . forces under various sets of circumstances is shared by Congress and the Executive. History makes clear that the congressional power "to declare War" conferred by Article I, § 8 of the Constitution was intended as an explicit restriction upon the power of the Executive to initiate war on his own prerogative which was enjoyed by the British sovereign.
429 F.2d at 305.
More recently, Judge Harold Greene held that an offensive military attack against Iraq to expel it from Kuwait would require congressional authorization under the War Powers Clause of the Constitution. Dellums v. Bush, 752 F. Supp. 1141, 1146 (D.D.C. 1990). Judge Greene was "not prepared to read out of the Constitution the clause granting to the Congress, and to it alone, the authority 'to declare war.'" Id.
The overwhelming weight of scholarly authority also supports the view that the President cannot initiate war without congressional approval except to repel an attack. Lofgren, War--Making Under the Constitution; the Original Understanding, 81 Yale L.J. 672 (1972); L. Henkin, Foreign Affairs and the Constitution 100 (1972); John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath (1993); F. Wormuth & F. Firmage, To Chain the Dog of War: The War Power of Congress in History and Law (2d ed. 1989); W. Reveley, War Powers of the President and Congress: Who Holds the Arrows and the Olive Branch? (1981); A. Schlesinger, The Imperial Presidency (1973); Louis Fisher, Presidential War Power (1995); Friedman, Waging War Against Checks and Balances--The Claim of an Unlimited Presidential War Power, 57 St. John's L. Rev. 213 (1983); Note, Congress, the President and the Power to Commit Forces to Combat, 81 Harv. L. Rev. 1771 (1968); Velvel, The War in Vietnam: Unconstitutional, Justiciable, and Jurisdictional Attackable, 16 Kan. L. Rev. 449 (1968); Bickel, Congress, the President and the Power to Wage War, 48 Chi.-Kent. L. Rev. 131 (1971). Memorandum Amicus Curiae of Law Professors in Ronald V. Dellums v. George Bush, reprinted at 27 Stanford Journal of Int'l Law 257 (1991).
B. The Present Military Action Against Yugoslavia Constitutes War for Constitutional Purposes
The present ongoing military hostilities between the United States and Yugoslavia meets any conceivable test of the applicability of the War Powers Clause. Thousands of United States Armed Forces are currently engaged in the longest armed conflict the United States government has undertaken since the end of the Vietnam War. The forces involved are of "such magnitude and significance," Dellums, supra at 1145, that there can be no question that the United States is involved in a war for constitutional purposes. If congressional consent for the current offensive military action against Yugoslavia is not required, the War Powers Clause is a dead letter, so soon after the Dellums Court refused to "read [it] out of the Constitution." Id. at 1146.
A broad cross-section of prominent constitutional law scholars agree that the Constitution requires congressional authorization for all non-defensive, non-emergency deployment of U.S. forces in combat against another country. See letter dated October 14, 1994 from Professors Bruce Ackerman (Yale), Abram Chayes (Harvard), Lori Damrosch (Columbia), John Hart Ely (Stanford and Miami visiting), Gerald Gunther (Stanford), Louis Henkin (Columbia), Harold Hongju Koh (Yale), Philip B. Kurland (Chicago), Laurence H. Tribe (Harvard), and William Van Alystyne (Duke) reprinted 89 Am. J. Int'l L. 127, 130 (1995) (Constitution "reserves to Congress alone the prerogative and duty to authorize initiation of hostilities"). (See also letter dated August 24, 1994 from same professors requesting that President Clinton seek and obtain Congress' express prior approval before launching a military invasion of Haiti.) See also Ely, War and Responsibility, supra at p. 1, 66-67; Louis Henkin, Constitutionalism, Democracy and Foreign Affairs 40 n.* (1990). That view was adopted by Congress in 1973 when it enacted § 2(c) of the War Powers Resolution. 50 U.S.C. § 1541(c) (1990). Indeed, even President Nixon's Secretary of State, William P. Rogers recognized that:
. . . [T]he framers of the Constitution intended decisions regarding the initiation of hostilities to be made jointly by the Congress and the President, except in emergency situations. I believe that constitutional design remains valid today.
Rogers, Congress, the President and the War Power, 59 Calif. L. Rev. 1194, 1212-1213 (1971) (emphasis added).
Nonetheless, proponents of Executive power argue that the President can initiate minor uses of force without obtaining congressional approval. But substantial agreement exists even among most proponents of strong executive power that the commitment of significant numbers of American armed forces to sustained combat against a foreign government requires congressional approval. See, e.g., Moore, The National Executive and the Use of the Armed Forces Abroad, in 2 The Vietnam War and International Law 808, 814 (Falk ed. 1969). See also Moore, Emergency War Powers, the U.S. Constitution and the Power to Go to War 159, 161 in The U.S. Constitution and the Power to Go to War (Gary Stein & Morton Halpern eds. 1994). Others who would limit congressional authority over warfare nonetheless view it as axiomatic that substantial hostilities involving a "significant infliction of casualties on other peoples, 'bothersome taxes [or] personal sufferings'" qualify as war. Peter Spiro, War Powers and the Sirens of Formalism, 68 N.Y.U. L. Rev. 1338, 1353 (1993). See also Joseph Biden & John Pitch III, The War Power at a Constitutional Impasse: A Joint Decision Solution, 77 Georgetown L.J. 367, 400 (1988) (The essential aim of a compromise position "is to ensure that the commitment of U.S. forces to sustained hostilities--to warfare--is based on affirmative congressional action") (emphasis added). Major Geoffrey S. Corn, Presidential War Power: Do the Courts Offer Any Answers?, 157 Mil. L. Rev. 180, 252 (1998) ("Certainly the initiation of significant offensive hostilities is such a policy decision, which under our constitutional system of government should not be made without the approval of Congress.").
This Administration has previously recognized that a commitment of significant United States Armed Forces to sustained combat in which they inflict substantial casualties would constitute war for constitutional purposes. The Administration's response to a request from four U.S. Senators concerning the lawfulness of the planned U.S. invasion of Haiti claimed that the planned deployment did not constitute "war" because it was undertaken "with the full consent of the legitimate [Haitian] government," "was unlikely to involve major or prolonged hostilities," that U.S. forces were unlikely to "suffer or inflict substantial casualties, and would not "involve extreme use of force, as for example preparatory bombardment." Letter of Assistant Attorney General Walter Dellinger, September 27, 1994, reprinted at 89 Am. J. Int'l 122, 126 (1995) (emphasis added). The Administration thus implicitly recognized that where substantial U.S. forces attacked another country without the consent of the recognized government, leading to prolonged hostilities, inflicting substantial casualties on the enemy, and involving such "extreme" uses of force as sustained air "bombardment," the United States was engaged in "war" for constitutional purposes.
The War Powers Resolution reflects Congress' similar view that, irrespective of whether the Executive can unilaterally initiate minor uses of force, sustained hostilities lasting 60 days clearly constitute war and constitutionally require congressional approval. The war powers time clock thus represents Congress' understanding that sustained, continuous, significant hostilities constitute war for constitutional purposes.
The present armed conflict clearly represents a U.S. deployment of substantial force against another country in sustained and continuous combat. As of May 14, 1999, United States and other NATO allied aircraft have flown over 20,000 sorties over the Federal Republic of Yugoslavia, and have dropped over 9,000 bombs and missiles on over 1,900 Yugoslav targets. Ex. 51. The United States has committed approximately 800 warplanes to action on a daily basis over Yugoslavia, deploying tens of thousands of military personnel. To support the U.S. air offensive, President Clinton has authorized the Pentagon to summon as many as 33,102 reservists to active duty. That decision represents the largest activation of reservists since the 1991 Persian Gulf War against Iraq. General Joseph Ralston, Vice Chairman of the Joint Chiefs of Staff has stated that the military's operation over Kosovo is a major theater, as far as the war was is concerned. Ex. 21.
Moreover, this large scale offensive against Yugoslavia is of indefinite duration. As of May 25, 1999, NATO's military offensive will have already lasted 60 days. In testimony before Congress on April 21, 1999, Secretary of State Madeleine Albright stated that "As the President and our military leaders have made clear, this struggle [with Yugoslavia] may be long." General Hugh Shelton, Chairman of the Joint Chiefs of Staff, has stated that it is possible for Milosevic's force (composed of over 40,000 troops) to "hold out for quite some time."
The U.S. and NATO forces have inflicted substantial casualties to Yugoslav military forces, have "severely damaged Yugoslavia's military and industrial capacity," and have inflicted significant casualties and hardships on Yugoslavia's civilian population. Plaintiffs' Material Facts ¶¶ 39, 40 . United States officials have referred to our air attacks as inflicting "heavy damage" to and a "heavy price" on Serbian forces in Kosovo and as "decimating the forces on the ground." Id. ¶¶ 33-40. United States forces have bombed bridges, power lines, industrial facilities, oil refineries and other targets throughout Yugoslavia. Id. ¶ 39. United States forces have destroyed a substantial part of Yugoslavia's military equipment and capacity. Id. ¶¶ 32-38.
Finally, United States officials have stated that the air offensive against Yugoslavia will escalate in the coming weeks. U.S. General Wesley Clark, the NATO Commander, stated on April 27, 1999, that the air strikes thus far have "been only a fraction of what is to come." Id. ¶ 45. Indeed, since the end of April the United States and its NATO allies have significantly expanded air operations. The United States is committed to deploying close to 1,000 aircraft out of a total NATO force of 1,259 and Defense Department officials assert that "the destruction will accelerate." Id. ¶¶ 46, 31.
The war against Yugoslavia cannot therefore be analogized to the dozens of rescue operations or brief military engagements undertaken by Presidents in the 19th century, nor the more modern examples of Executive unilateral deployment of United States Armed Forces into combat (although some of those may also have been unconstitutional): the 1983 Grenada invasion, the 1986 air strike against Libya, the 1990 Panama invasion, the 1995 Bosnia air strikes, the 1992 deployment of peacekeeping troops to Somalia, the December 1998 air strikes against Iraq, or the August 1998 missile attack on Afghanistan and Sudan. None of these post-Vietnam examples involved the initiation of substantial, sustained combat against a foreign state,(24) and none involved armed force of the magnitude and duration of the United States and allied attack against Yugoslavia.
This case does not present a constitutionally ambiguous situation where an Executive has used force to purportedly protect American citizens, or to launch a quick retaliatory surprise air strike against another country, or as part of a U.N. peacekeeping mission. Reasonable minds might differ as to whether those situations were "war" and required congressional assent. Here there can be no real dispute that the present conflict against Yugoslavia represents war.
While Administration officials have attempted to avoid referring to our military action against Yugoslavia as a war,(25) nonetheless, the public, news media and front line soldiers recognize the current conflict for what it is: war.(26) The constitutional command that Congress authorize war cannot be negated by presidential semantics. Professor John Basset Moore, one of the most prominent international law professors of the first half of the 20th century expressed it well when he wrote:
There can hardly be room for doubt that the framers of the Constitution, when they vested in Congress the power to declare war, never imagined that they were leaving it to the executive to use the military and naval forces of the United States all over the world for the purpose of actually coercing other nations, occupying their territory, and killing their soldiers and citizens, all according to his notions of the fitness of things, so long as he refrained from calling his action war or persisted in calling it peace.
5 John Bassett Moore, The Collected Papers of John Bassett Moore 196 (1944).
Moore's conclusion was that reached by the Court in Dellums v. Bush, 752 F. Supp. 1141, 1145-46 (D.D.C. 1990) and should be followed here.
C. Congress has Refused to Authorize the Current War Against Yugoslavia
The Constitution requires the affirmative assent of Congress to initiate or continue warfare. Congress has not explicitly authorized the current war against Yugoslavia. In fact, the House of Representatives has explicitly decided not to authorize the President of the United States to conduct military air operations and missile strikes against the Federal Republic of Yugoslavia. On April 28, 1999, the House defeated by a vote of 213 to 213 S. Con. Res. 21 which would have authorized such military operations.(27) Ex. 25. That explicit refusal to authorize the current operations is dispositive; it represents a clear congressional decision on the precise issue before the Court.
Congress is, however, likely to enact an appropriations bill to provide funds to support U.S. forces involved in the current war against Yugoslavia. This Circuit has held that such appropriations statutes do not constitute the requisite constitutional authorization for war. Mitchell v. Laird, 488 F.2d 611, 615. In Mitchell, Judges Bazelon and Wyzanski stated that:
This court cannot be unmindful of what every schoolboy knows: that in voting to appropriate money or to draft men a Congressman is not necessarily approving of the continuation of a war no matter how specifically the appropriation or draft act refers to that war. A Congressman wholly opposed to the war's commencement and continuation might vote for the military appropriation and for the draft measures because he was unwilling to abandon without support men already fighting.
Id. In addition, Section 8(a) of the War Powers Resolution explicitly codified the Court's holding in Mitchell that appropriation statutes do not constitute the requisite constitutional authorization of warfare. 50 U.S.C. § 1547(a).(28)
II. THE WAR POWERS RESOLUTION REQUIRES THE PRESIDENT TO TERMINATE THE USE OF UNITED STATES ARMED FORCES IN THE FEDERAL REPUBLIC OF YUGOSLAVIA BY MAY 25, 1999
If the President does not terminate the use of United States Armed Forces by May 25 1999,(29) he will be acting in blatant violation of the WPR, 50 U.S.C. § 1541, et seq. The resolution's requirements are straightforward. The President is required to submit a report to the Speaker of the House of Representatives and the President pro tempore of the Senate within 48 hours of when United States Armed Forces are introduced "into hostilities." 50 U.S.C. § 1543(a)(1). The President submitted the required report on March 26, within 48 hours of the first air strikes on Yugoslavia. Ex. 19. The WPR then requires that within 60 calendar days "after such a report is submitted or required to be submitted," the President must "terminate" all
such use of United States Armed Forces unless Congress has declared war, enacted specific authorization, or extended the sixty-day period. 50 U.S.C. § 1544(b). Congress has refused to take any of these actions. Thus, on May 25, 60 days after March 26, the President will be in clear violation of the WPR. In this situation a declaration that the President is in violation of the termination provisions of § 1544(b) is appropriate.
- The WPR's Reporting Requirement
The WPR, passed in the aftermath of the Vietnam war, embodies Congress' search for a legal mechanism to enforce the congressional war-making power. It was passed to prevent war by presidential fiat and to protect the constitutional power of Congress to declare war.(30) The WPR requires that the President "shall submit" a report to Congress within 48 hours:
in any case in which United States Armed forces are introduced
(1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances....
50 U.S.C. § 1543(a)(1). This report begins the sixty-day period within which troops must be withdrawn in the absence of Congressional approval. The statute contains special priority procedures to guarantee that any legislation approving a commitment of U.S. Armed Forces or mandating their withdrawal during that sixty-day period is acted on quickly. 50 U.S.C. § § 1545, 1546. The Congress did, in fact, consider such resolutions here; and rejected any authorization for those forces or a declaration of war.
On March 26, the President submitted the report required under the WPR to the Speaker of the House of Representatives and the President pro tempore of the Senate. Ex. 19. The report tracks the statutory requirements of the WPR and was treated by the House and Senate as the report required by § 1543(a)(1).(31) The President states that he has the authority acting on his own to initiate hostilities with Yugoslavia. His only reference to Congress is to state that he "has taken into account the views and support expressed by the Congress in S. Con. 21 and H. Con. 42." Id. The President concludes by stating that he is "providing this report...consistent with the War Powers Resolution...." Id.
The report tracks the WPR statutory requirements and does not assert it is anything but the report to which the War Powers Resolution refers.(32) The House of Representatives and the Senate treated the report as that required by § 4(a)(1) of the War Powers Resolution, 50 U.S.C.§ 1543(a)(1), and expedited congressional resolutions pursuant to §§ 1545 and 1546.(33) Plaintiff Congressman Campbell introduced H. J. Res. 44 (to declare war on Yugoslavia) pursuant to § 1544(b), and H. Con. Res. 82 (to withdraw the troops) pursuant to § 1544(c). Exs. 28, 27. Both were treated by the International Affairs Committee and the House itself as pursuant to, and entitled to, the priority procedures of the WPR.(34) Similarly in the Senate, S.J. Res. 20, Ex. 26, introduced by Senator McCain, was treated as a priority resolution pursuant to § 1545 and the expedited procedures of the WPR followed.(35) The clear message from this legislative activity is that the March 26 report by the President to Congress was the report required under § 4(a) (1) of the WPR, 50 U.S.C. § 1543(a)(1).
In any event, the sixty-day termination provision of the WPR begins to run "after a report is submitted or required to be submitted." 50 U.S.C. § 1544(b). Whether or not a § 4(a)(1) report is actually filed, if objective circumstances are such that the President should have filed a report but did not, the sixty-day cut-off period is triggered. Without this provision the statute would be valueless, leaving the power to initiate war in the hands of the President and would do nothing to relieve Congress of the unconstitutional burden of acting affirmatively to stop a presidential war.(36)
A report was "required to be submitted" by March 26, within forty-eight hours of the beginning of the air war (and as has been said, the President did so). U.S. forces clearly had been "introduced into hostilities." (See Statement of Facts, supra.) The WPR defines what is meant by "introduction of United States Armed Forces"(37) and the legislative history sets forth the understanding of "hostilities." The House Report states that the President is required to report "whenever...he takes significant action committing U.S. Armed Forces to hostilities abroad or the risk thereof...." H. R. Rep. No. 93-287, 93rd Cong., 1st Sess. 7 (1973) ("House Report"), or "where there is reasonable expectation that American military personnel will be subject to hostile fire." Id. at 7. A subcommittee of the Committee on Foreign Affairs changed the language in the House bill by substituting the word "hostilities" for the phrase "armed conflict," because it was "considered to be somewhat broader in scope." House Report at 7.(38) The administration has admitted that U.S. military forces are engaged in "armed conflict" in Yugoslavia.(39)
Furthermore, Secretary of Defense Cohen in testimony before the Senate Armed Service Committee on April 15, 1999, stated:
"[W]e're certainly engaged in hostilities. We're engaged in combat. Whether that measures up to, quote, a classic definition of war, I'm not qualified to say."(40)
And Deputy Assistant Secretary of State Jacobs had this colloquoy with Congressman Campbell before the House International Relations Committee, on April 15, 1999:
Ms. Jacobs: In Kosovo itself?
Mr. Campbell: Yes.
Ms. Jacobs: Well, there is conflict in the area, and some of it has spilled over into Kosovo, yes, sir.
Mr. Campbell: I am asking are there hostilities, and your answer is yes, but I don't wish to put words in your mouth.
Ms. Jacobs: In the area, but intentionally in Kosovo, but certainly in Yugoslavia.
Mr. Campbell: There are hostilities in Yugoslavia?
Ms. Jacobs: Yes.
There can simply be no question that U.S. Armed Forces have been introduced into hostilities in Yugoslavia and that they were so introduced on March 24, as detailed in the President's March 26 report. The uncontested facts in the statement of facts and admissions by administrative officials make this abundantly evident. As was said earlier, Congress-both the House and the Senate-recognized that the President's report triggered the WPR and acted accordingly.
- The WPR'S Termination Requirement
The heart of the WPR is the sixty-day termination provision, § 1544(b). It mandates that 60 days after the above described report is "submitted or is required to be submitted," the President shall terminate any use of United States forces with respect to which such report was submitted (or required to be submitted), unless the Congress declares war, has specifically approved the use of such troops, has extended the sixty-day period, or cannot meet because of an armed attack on the U.S. The meaning of this termination requirement is plain: in any situation where the President has reported or is required to report, he is obligated to withdraw all U.S. armed forces within 60 days unless he obtains affirmative authority from Congress for the forces to remain. If Congress does nothing the forces must be removed. (In fact, as explained below, the House has actually refused to give authority.) As stated in the House Report:
The language '...the President shall terminate any commitment...'obligates the President explicitly to stop the commitment...and remove U.S. Armed Forces to which the report refers.
H.R. No. 287, 93rd Cong., 1st Sess., reprinted in  U.S. Code Cong. & Ad. News 2346, 2354.
Senator Zablocki, one of the main sponsors of the resolution, stated after completion of the conference:
If Congress does not give its approval within 60 days, the President must withdraw the forces.
119 Cong. Record 33038 (1973). It was this automatic termination requirement that caused President Nixon to veto the Resolution.(41)
Congress recognized the difficulty of stopping war once begun-the difficulty stemming from congressional inertia and the need for protection of U.S. soldiers in the midst of hostilities. The automatic termination requirement was to ensure that it was the President's burden to obtain consent from Congress and not the burden of Congress to pass a law directing the President to end a war. The Court in Crockett v. Reagan, 558 F. Supp. 893, 899 (D.D.C. 1982), aff'd 720 F.2d 1355 (D.C.Cir. 1983), confirmed this understanding of the basis for the WPR and the need for the automatic termination requirement:
The War Powers Resolution...was intended to prevent another situation in which ... Congress [was presented] with a full-blown undeclared war which on a practical level it was powerless to stop. While Congress always had the power to deny appropriations supporting a military engagement it found it politically impossible to do so after large numbers of American lives had been placed at risk and American honor committed.....Further, the automatic cutoff after 60 days was intended to place the burden on the President to seek positive approval from the Congress, rather than require the Congress positively to disapprove the action, which had proven so politically difficult during the Vietnam war. (Emphasis added.)
Congress assumed that the President would abide by the WPR, that he would not refuse to abide by the law, but would terminate the involvement of U.S. armed forces within the statutory period. As stated by Senator Javits:
The thirty-day period provision (60 days in the final resolution) contained in § 5 assumes that the President will act according to law. No other assumption is possible unless we are to discard our whole constitutional system.
119 Cong. Record at 1401 (1973).
In addition to the practical difficulty of asking Congress to terminate U.S. involvement in hostilities by cutting off appropriations once the hostilities have begun, there is also a huge difference in what might be called the burden of proof between such an approach and the constitutional scheme for declaring war. An appropriation cut-off requires 2/3 of both houses of Congress, if the President disagrees with it. However, one house of Congress, alone, by simple majority, can prevent the passage of a declaration of war. The War Powers Resolution preserved this constitutional balance by its automatic termination provision, after 60 days, of any involvement in hostilities, requiring positive legislation (by a majority in both houses) to start it up again.
- Congress Has Refused to Give the Authority Required By the WPR
To date Congress has not given the authority, and in fact has refused to vote the authority, required by the WPR for the President to continue employing U.S. Armed Forces in Yugoslavia. Congress has not passed a declaration of war, approved the continued use of troops or extended the sixty-day period as the Resolution requires. The WPR requires that both houses of Congress must jointly approve the same resolution. 50 U.S.C. §§ 1544(b), 1544(d), 1546(d). That has not occurred. None of the legislation passed meets the statutory requirements. In fact, the House of Representatives did more than remain silent-it refused to authorize the continued air war. On April 28, the House voted on S. Con. Res. 21, which already having passed the Senate before the bombing began, would have authorized the President to conduct military air operations and missile strikes against Yugoslavia. Ex. 25. (42) It failed in the House, 213-213. The significance of this vote should not be underestimated: the House refused to give the President the statutory authority to continue the use of U.S. Armed Forces in Yugoslavia. On the same date the House voted no, 2-427, on H.J. Res. 44, which would have declared war on Yugoslavia. Ex. 28. While it is true that the House voted against H. Con. Res. 82, which would have removed U.S. Armed Forces from Yugoslavia, this is of no help to the President. The WPR requires, as does the Constitution, affirmative approval; it does not require Congress to muster the votes to tell him he must terminate the use of force.
Nor would the passage of emergency supplemental appropriations legislation help the President, even though it is, in part, an appropriation for military operations relating to the conflict in Yugoslavia. The drafters of the WPR were aware that many members of Congress would feel compelled to support the troops in the field once committed, but not be willing to grant the authority for the use of force.(43) For this reason the WPR states that authority to introduce U.S. Armed forces into hostilities shall not be inferred:
from any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities...and states that it is intended to constitute specific authority within the meaning of this joint resolution....
50 U.S.C. § 1547. The appropriation bill contains no such explicit authority. Defendant cannot claim that Congress has given the specific authorization required by the WPR. None of the legislation satisfies the Resolution's requirements. The President thus is obligated to terminate the employment of U.S. Armed Forces in Yugoslavia by May 25; by failing to do so he has exceeded his statutory authority.
The President refuses to do so because he insists, as did his predecessors before him, that the WPR is unwise. His view is that he has authority to "use force in the national interest"-even past 60 days-under his authority as Commander-in-Chief and under his authority to conduct foreign affairs.(44) Congress has passed a statute stating that the President does not have that constitutional authority; that he cannot engage U.S. Armed Forces in hostilities for more than 60 days without approval from Congress. But Congress has said even more; it has by a vote in the
House refused to give the President the authority to use force against Yugoslavia. Yet he has gone ahead. In such a circumstance, the conflict between the Executive and the Legislative branches is ripe and concrete. This Court should issue a declaration that the President is exceeding his statutory authority under the WPR by continuing the deployment of U.S. Armed Forces in Yugoslavia.
- Plaintiffs' Claim Under the WPR Is Justiciable
Crockett v. Reagan, 558 F. Supp. 893, the first case brought to enforce the provisions of the WPR, supports the justiciability of plaintiffs' claim. Crockett was a congressional plaintiff case that requested both declaratory and injunctive relief directing the President to withdraw 56 "military advisers" from El Salvador. Plaintiffs claimed the 56 advisers were facing a combat situation, a claim the government categorically denied. The President had not filed any report under the WPR. In that situation the Court found that the "nature of the fact-finding" precluded judicial inquiry, but that a case with less elusive facts was justiciable. Id. at 899. This case has no such fact-finding issue. The President filed a report with Congress and Congress acted upon it as the report required by § 1543(a)(1).
The Court in Crockett made three findings relevant to the instant case. First, it rejected the defendants' assertion that enforcement of a claim under the WPR would interfere with executive discretion in the foreign affairs field:
Plaintiffs do not seek relief that would dictate foreign policy but rather to enforce existing law concerning the procedures for decision making. Moreover, the issue here is not a political question simply because it involves the apportionment of power between the executive and legislative branches. The duty of courts to decide such questions has been repeatedly reaffirmed by the Supreme Court.
(Citations omitted.) Id. at 897.(45) Second, the Court found that in a case with less elusive facts, it could order that a report under the WPR be filed by the President. Id. at 901. Third, the Court ruled that a court could order withdrawal after a report under the WPR was submitted to Congress, whether by the President, or required by Congress or the Court. Id. at 901.
This case fits the criteria the Court delineated for the issuance of declaratory relief that the President is in violation of the termination provisions of the WPR.(46) The Court found that to order troop withdrawal when no report had been submitted to Congress was premature. Without such a report, "there would not necessarily be any debate or floor consideration of the issue at all." Id. at 901. The Court feared that:
in a situation where no report has been filed, and the priority procedures would not be invoked, the majority of Congress might not be of the opinion that a specific authorization is necessary for continued involvement and take no action, unaware that this course would result in mandatory withdrawal.
Id. at 901. Under those circumstances, the Court would only require that a report be filed.
The court contrasted those circumstances with the situation when a report had been filed:
Congress would be actively involved in considering legislation either approving or disapproving the President's action virtually as soon as it was introduced, and the ability of any one of the 535 members to trigger the priority procedures would assure that the question came to an eventual up or down vote. 119 Cong. Record 24653. Congress would then be well aware that if it failed to specifically authorize the involvement, it would terminate after 60 days.
Id. at 901. (Emphasis added.) In that situation the Court said it could grant declaratory or injunctive relief regarding the sixty-day termination requirement.(47) Id. at 901.
Those are precisely the facts that occur in the instant case. A report was filed, Congress considered legislation under the WPR's priority procedures--and Congress "failed to specifically authorize the involvement." S. Con. Res. 21, which would have authorized the air war, failed. A declaration that the President is in violation of the termination provisions is appropriate.
- Plaintiffs Have a Private Cause of Action Against the President Under the WPR
This case easily passes the four-part test for a private cause of action under Cort v. Ash, 422 U.S. 66 (1975).(48) The first and most crucial test is whether or not plaintiff is "one of the class for whose especial benefit the statute was enacted."(49) Regarding this test, there can be no serious dispute. The language of the statute specifically identifies Congress as the class that the Congress intended to benefit. Each section of the WPR makes this clear. A few examples will suffice. Section 1541 is intended to "insure" that "Congress" will execute collective judgment with the President; § 1542 provides that the President "shall consult with Congress; § 1543 provides that Congress must receive a report from the President, and §§ 1544-1546 create special congressional procedures for dealing with the involvement of United States troops in war-like situations. The WPR thus evinces an unmistakable focus on the rights of Congress and explicitly provides the institution and its members with designated rights. Cannon v. University of Chicago, 441 U.S. 677, 690-693. The legislative history of the WPR, detailed earlier, leaves no doubt but that Congress intended especially to benefit itself by protecting and regaining its war power.
The second factor in Cort is whether there is any indication of legislative intent, explicit or implicit, to create or deny a remedy. The statutory scheme and legislative history of the WPR, while not explicit as to the creation of a remedy, does present strong indications that Congress intended disputes under the WPR to be settled by courts. The WPR contains a separability clause, § 1544, which demonstrated that Congress clearly contemplated judicial interpretations of the statutory language. Another section provides that no authority to introduce U.S. Armed
Forces into hostilities shall be inferred from any appropriations act. § 1547(a) (1). This provision was clearly addressed to courts who might be asked to rule on the legality of a commitment of troops under the WPR and was intended to preempt Berk v. Laird, supra, and similar cases. (See also discussion of Dellums v. Bush, infra.)
The third requirement of Cort v. Ash, whether it was "consistent with the
underlying purposes of the legislative scheme to imply such a remedy for the plaintiff," 422 U.S. at 78, was directed at situations where there was a remedy other than a private right of action. Most often, this would be through enforcement of the statutory right by an administrative agency. Nevertheless, even in the presence of a clear commitment of enforcement to an administrative agency, the Supreme Court has, subsequent to Cort v. Ash, held a private right of action to exist as well, where the goals of the statute were unlikely to be achieved otherwise. See Morse v. Republican Party of Virginia, 517 U.S. 186 (l996) (implying a private right of action under the Voting Rights Act despite that statute's commitment of enforcement authority to the U.S. Attorney General); Cannon v. University of Chicago, 441 U.S. 677 (implying a private right of action under Title IX of the Education Act, despite the fact that the federal fund-granting agency was charged with the Act's enforcement). Here, there is, obviously, no federal agency that could enforce the War Powers Resolution; no executive branch department can be expected to stand up to the President; and the Congress acting alone has done all it can do and was required to do in rejecting the authorizations for the use of force. The holdings of Morse and Cannon are a fortiori applicable, and the third requirement of Cort v. Ash has been met.
There is a fourth requirement set forth in Cort v. Ash as well, that the cause of action not be one that is "traditionally relegated to state law." 422 U.S. at 78. That, obviously, is also met here; and its inclusion in the Cort v. Ash criteria sheds light on the intent of the other criteria -- namely, that the presence of an alternative means of enforcing the right in question, whether by federal or state action, was a significant predicate for denying a private right of action.
Finally, the silence of the War Powers Resolution on a private right of action poses no bar to the Court's holding for such a right. As noted above, the Resolution obviously anticipates evaluation by a Court; otherwise, the severability clause would have been superfluous. In addition, it is important to note that the War Powers Resolution was passed in 1973, a time at which Congress would have been justified in assuming that it could be silent on a private right of action without jeopardizing the existence of such a right. This was the time J.I.Case v. Borak was still controlling, 377 U.S. 426 (1964). The definitive treatise on administrative law states the following about this period of time:
During the period in which Borak was the law -- 1964 to 1975 -- Congress enacted several statutes based on the assumption that the Court would imply a private right of action for violation of an agency administered statute if Congress said nothing about such a right of action in the statute. This placed the Court in the predicament of being unable to change its approach to implied rights of action in all statutes without interfering with justified Congressional expectations that the Court would interpret Congressional silence as indicative of Congressional intent to create a private right of action.
Kenneth C. Culp & Richard J. Pierce, Jr., III Administrative Law Treatise (3rd ed., 1994), § 18.5 at 190. All the more would this be true for statutes that lacked any agency to provide alternative enforcement, such as the War Powers Resolution.
Not only do congressional plaintiffs meet the Cort v. Ash test, but the three WPR cases decided in this district(50) have all implicitly or explicitly found that there is a private right of action under the WPR. While Crockett did not directly address the issue, the court repeatedly stated that with a less elusive factual situation it could require the President to issue a report and even order termination 60 days after a report was issued. In Lowry, the court did not reach the question, but stated that it could decide a case brought by congressional plaintiffs if it were ripe for review. Id. at 339. In Ange, the Court found that a service member met the criteria of Cort v. Ash and had a private right of action. Id. at 511. Clearly, if a service member has a right of action, a fortiori members of Congress do; the WPR was passed to protect their constitutional rights under Article I, § 8, Clause 11 to determine whether or not to initiate hostilities.
III. THE COURT SHOULD DECIDE THIS CASE
This case begins where Dellums v. Bush ended. Both Dellums and the case at bar present the issue of whether the President can initiate war without congressional authorization. But this case contains two critical distinctions from Dellums which go to the heart of the Court's refusal to reach the merits in that case.
First, plaintiffs' injury here is not merely threatened or speculative: Defendant Clinton is not threatening a war, he is fighting one. Thus the second prong of the ripeness doctrine articulated in Dellums is satisfied. 752 F. Supp. at 1151-52.
Second, the Court in Dellums stated that "no one knows the position of the Legislative Branch on the issue of war or peace with Iraq ...." 752 F. Supp. at 1149, and therefore, held the case not to be ripe. Here, by contrast, the House of Representatives has voted against authorizing precisely the very military operations currently being conducted.(51) Cong. Rec. Apr. 28, 1999, H2451-2452. Ex. 36. Plaintiffs assert a right not merely of themselves, but of the requisite number of members of Congress who under the Constitution are sufficient to prevent the United States from initiating a war.(52) Plaintiffs Campbell and others heeded the Court's admonition in Dellums that the judiciary would not act unless and until the legislative branch has forced the issue. They forced a vote in the House of Representatives on whether to authorize the war against Yugoslavia, and received the support of 50% of the House, a number sufficient to decide against war. They forced a vote on whether to declare war against Yugoslavia and received the support of all but two members of the House in the negative. Indeed, this case presents an analogous hypothetical to one Justice Powell assumed would be appropriate for judicial review in Goldwater v. Powell, 444 U.S. 997 (1979) (Powell, J., concurring). Justice Powell suggested that judicial review ought to be available, if "the President signed a mutual defense treaty with a foreign country and announced it would go into effect despite its rejection by the Senate." Id. at 999-1,000. If more than one-third of the Senate voted against the treaty, the case ought to be ripe because the Constitution provides 34 senators the power to prevent a treaty from being ratified. The dispositive question is whether Congress has spoken through an appropriate constitutional mechanism, as opposed to remaining silent. Here, as in Justice Powell's hypothetical, Congress has acted.
The ripeness requirement of Dellums is met by the vote being taken, and rejected, to authorize military force in Yugoslavia, both by declaration of war (H.J. Res. 44) (defeated 2-427),
and by specific authorization (S. Con. Res. 21) (defeated 213-213).(53) Both were considered and
disapproved by the House on April 28, 1999.(54)
The House of Representatives' vote to deny authorization for the war against Yugoslavia also supports plaintiffs' claim of standing.(55) The Dellums Court concluded that the congressional plaintiffs there had standing to pursue their claims. Here, plaintiffs' injury is even more concrete and particularized than the Dellums plaintiffs since these plaintiffs' actual votes have in fact been negated by Executive action.
The Supreme Court's decision in Raines v. Byrd, 117 S. Ct. 2312 (1997), does not negate plaintiffs' standing where, as here, they are legislators whose votes were sufficient to defeat a constitutionally required legislative authorization and claim that the Executive is taking the action for which such authorization is necessary. Their votes are therefore completely nullified, and they have suffered a concrete and particularized injury.
In Raines, the Supreme Court denied standing to members of Congress who had been in the minority in voting against the Line Item Veto Act. The majority distinguished and did not overrule Coleman v. Miller, 307 U.S. 433 (1939), a case in which the Court had granted standing to Kansas state senators where the state Senate had deadlocked 20-20 on ratifying an Amendment to the Federal Constitution, which was deemed ratified nonetheless. The Court in Raines found Coleman to stand for the "proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified." 117 S. Ct. at 2319. That is precisely the injury suffered by plaintiffs here, whose votes were sufficient to defeat the legislative act of authorization which the Constitution requires for the President to continue the war against Yugoslavia. Complaint ¶ 21.
The Raines Court quoted the Coleman opinion, emphasizing the injury plaintiffs allege to have suffered here:
". . . plaintiffs include twenty senators, whose votes against ratification have been overridden and virtually held for naught although if they are right in their contentions their votes would have been sufficient to defeat ratification. We think that these senators have a plain, direct and adequate interest in maintaining the effectiveness of their votes.
117 S. Ct. 2319 (emphasis in original).
The Raines court also cited Bender v. Williamsport Area School, 475 U.S. 534, 544-545 n.7 (1986), to support the Coleman proposition. Id. at 2319 n.6. In Bender the court hypothesized that a school board member would have standing to sue if state law authorized a school board to take action only by unanimous consent, if a school board member voted against a particular action, and if the board nonetheless took the action. Id. That hypothetical is analogous to the case at bar: the Constitution requires legislative authorization for war, and the legislators whose votes were sufficient to defeat such authorization sue because the President has nonetheless continued the war, thus, completely nullifying their vote. Plaintiffs therefore have standing to sue on both the constitutional and War Powers Resolution claims.(56)
Finally, this case does not present a non-justiciable political question. Where the opposing forces are of such magnitude and significance as to present no serious question as to whether war exists, the courts have held that the constitutional issue of whether congressional approval is required does not present a political question. Dellums v. Bush, 752 F. Supp. 1141, 1145 (D.D.C. 1990); Mitchell v. Laird, 488 F.2d 611, 614 (D.C. Cir. 1973); Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971), cert. denied, 404 U.S. 869 (1971); Berk v. Laird, 429 F.2d 302 (2d Cir. 1970).(57) The court here is presented with a purely legal question as to whether a particular branch has been constitutionally designated as the repository of political decisionmaking power. That issue is not a political question. Dames and Moore v. Reagan, 453 U.S. 754 (1981); Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579 (1952).
As the Dellums Court stated in rejecting the Executive's claim in that case that only the political branches could determine whether the country was at war:
If the Executive had the sole power to determine that any particular offensive military operation, no matter how vast, does not constitute war-making but only an offensive military attack, the congressional power to declare war will be at the mercy of a semantic decision by the Executive. Such an "interpretation" would evade the plain language of the Constitution, and it cannot stand.
Dellums v. Bush, 752 F. Supp. 1141, 1145 (D.D.C. 1990). The current military attack against Yugoslavia is clearly of the duration and magnitude to constitute war for constitutional purposes; therefore the constitutional issue of whether congressional approval is required does not present a non-justiciable political question.
The Court should issue 1) a declaration that the President is unconstitutionally continuing an offensive military attack by United States Armed Forces against the Federal Republic of Yugoslavia without obtaining a declaration of war or other explicit authority from the Congress of the United States as required by Article I, § 8, Clause 11 of the Constitution; and
(2) a declaration that the President is in violation of the termination provision of § 1544(b) of the War Powers Resolution by continuing the hostilities against Yugoslavia without obtaining the required authorization from Congress.
H. LEE HALTERMAN JULES LOBEL
405 14th Street MICHAEL RATNER
Suite 1208 FRANKLIN SIEGEL
Oakland, CA 94612 WILLIAM GOODMAN
(510) 663-0936 JENNIFER GREEN
Center for Constitutional Rights
666 Broadway, 7th Floor
JOEL E. STARR New York, New York 10012 Bar No. 405645 (212) 614-6464 2442 Rayburn House Office Building
Washington, DC 20515
Attorneys for the Plaintiffs JAMES KLIMASKI
Bar No. 243543
KLIMASKI & MILLER, P.C.
1899 L Street NW
Washington, DC 20036
1. The following chronology of facts is drawn almost entirely from the official government sources available in the public record. The bulk of the citations are to statements by President Clinton, Secretary of Defense William Cohen, Secretary of State Madeline Albright and military spokespeople.
2. President's Remarks Announcing Airstrikes, 35 Weekly Comp. Pres. Doc. 513 (March 24, 1999). Ex. 2.
3. Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 528 (March 26, 1999). Ex. 19.
4. Latest News from the American Forces Information Service as of May 12, 1999. Ex. 11.
5. Id.; "U.S. Commits More Air Power to Allied Force," U.S. Department of Defense/American Forces Information Service (March 30, 1999); "More U.S. Fighters Join NATO Air Campaign," (April 2, 1999) id.; "Pentagon Sends in Carrier Battle Group," (April 5, 1999) id.; "Air Ops in Yugoslavia Pick Up; Apaches to Albania," (April 6, 1999) id.; "More Power Planned for Allied Forces," (April 7, 1999) id.; "U.S. Sending 82 More Aircraft to Join NATO Forces," (April 12, 1999) id.; "NATO Requests 300 More U.S. Aircraft for Allied Force," (April 14, 1999) id.; "Reserve Call-up Request to Go to President," (April 20, 1999) id.; "Clinton Sets Kosovo Emergency Funding at $6 Billion," (April 21, 1999) id.; "NATO Expands Target List, Reserve Call-up Near," (April 23, 1999) id.; "NATO Considers Naval Blockade to Halt Milosevic's Oil," (April 26, 1999) id.; Secretary Cohen Announces Presidential Selected Reserve Call-Up, Department of Defense News Release (April 27, 1999) Ex. 5; "More B-52's Join Allied Force Mission," American Forces Information Service (April 29, 1999). Ex. 11; "More Aircraft, Personnel Set for Allied Force," U.S. Department of Defense/Armed Forces Information Service (May 11, 1999). Ex. 6; Secretary of Defense Orders Additional Aircraft to Join Operation Allied Force, Department of Defense News Release (May 6, 1999). Ex. 7.
6. Department of Defense, News Release. Ex. 7.
7. Kosovo Situation Report # RS20141, Congressional Research Service. Ex. 20.
8. Transcript of NATO Press Conference, May 9, 1999. Ex. 51 at p. 5.
9. Kosovo Situation Report, supra. Ex. 20.
10. Meet the Press Transcript, May 2, 1999. Ex. 21.
11. "Serb Terror, Ethnic Cleansing Reach New Heights," Department of Defense/Armed Forces Information Service (March 30, 1999). Ex. 11.
12. President's Letter to Congressional Leaders Reporting on Airstrikes Against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 35 Weekly Comp. Pres. Doc. 602 (April 7, 1999). Ex. 38.
13. Id. at 603.
15. Madeline Albright Testimony Before the House International Relations Committee (April 21, 1999). Ex. 41 at p. 9.
16. Executive Order 13119, Designation of Federal Republic of Yugoslavia (Serbia/Montenegro), Albania, the Airspace Above, and Adjacent Waters as a Combat Zone, 35 Weekly Comp. Pres. Doc. 639 (April 13, 1999). Ex. 12.
17. Remarks By the President Upon Departure for Germany, The White House Office of the Press Secretary (May 4, 1999). Ex. 39.
18. ¶ 39.
19. ¶ 38.
20. S. Con. Res. 21. Ex. 25.
21. H.J. Res. 44. Exs. 28, 29.
22. H. Con. Res. 82. Exs. 27, 29.
23. S.J. Res. 20. Ex. 26.
24. Even the closest geographical analogy to the present situation, the NATO air strikes against the Bosnian Serbs in the summer of 1995, is not comparable. Those air strikes lasted a much shorter time (a little over 2 weeks), involved far fewer sorties, involved many fewer aircraft, did not require a call-up of reserves, and was conducted with the agreement of the recognized government of Bosnia, and not against a sovereign state. Ex. 42.
25. See Ex. 32 (testimony of Asst. Sec. of State Barbara Larkin and Mike Matheson with the Office of Legal Advisor that Administration position is that we are in an "armed conflict" not a "war." At times, however, even high governmental and military officials refer to the conflict as a war. "This is war," said Major General Charles Wald, the operations director for the Joint Chiefs of Staff declared at a recent Pentagon briefing, later correcting himself by saying "It's combat." DoD News Briefing, May 15, 1999 at p. 14., Ex. 48.
26. See e.g., Nightline, May 5, 1999 (Lt. General John Walker Hendrix, Commander of Task Force Hawk, a 5,000 army soldier unit in Albania which includes 24 Apache Helicopters stated that "[T]his is my Third War."); Michael D. Towle, Arrival of Apaches Will Bring War Down to Ground, Buffalo News, Apr. 28, 1999 at A6 (Lt. Col. Bill Wheelehan, an Army official at the Pentagon states that "this is a war zone"); Robert M. Gates, In War, Mistakes Happen, N.Y. Times, May 12, 1999 at A27 (former Director of CIA referring to conflict with Yugoslavia as a war--we must "remember that a war is on."). When three American soldiers were captured by Yugoslavia, U.S. officials termed them Prisoners of War. Deputy Asst. Sec'y of State Jacobs stated Administration policy that our captured servicemen were "Prisoners of War," April 15, 1999, H.I.R.C., Secretary of the State Pickering, in testimony before the House International Relations Committee on Feb. 10, 1999, engaged in the following colloquy with Cong. Campbell:
Mr. Campbell: "Is Serbia within its rights to consider the bombing of Serbian territory as an act of war? Mr. Ambassador, I would like your answer, please."
Mr. Pickering: "I am not a lawyer, and, therefore, am not in a position to talk about that, but I would suspect that the answer to that is yes."
27. The House of Representatives also voted by a 427-2 margin to defeat H. Res. 44 which would have declared war on Yugoslavia. Ex. 29.
28. The perceptiveness of the Mitchell Court and of Congress in enacting § 8(c) can be seen in the statements of members of Congress that they disagreed with the present bombing campaign yet did not want to vote to undercut the efforts of our nation's armed forces and undermine the safety of our troops. See Mr. Blagojevich H2450, Mr. DeFazio H2451. Ex. 36. For the same reason, the House of Representatives vote rejecting H. Con. 82 which would have required the President to withdraw all U.S. armed forces from any action against Yugoslavia within 30 days after the passage, cannot be taken as authorization of the air strikes. H2427, April 28, 1999. Ex. 36. These votes illustrate the Constitution's wisdom of requiring congressional authorization prior to the initiation of a substantial military campaign, not after it has already been launched.
29. The President can extend the date by thirty days, but only if he certifies that additional time is necessary to safely remove United States Armed Forces. 50 U.S.C. § 1544(b). It is unlikely that the President will make such a certification, as it would be patently absurd in the face of no ground engagement. The safe removal of United States Armed Forces simply requires an end to the U.S. bombing campaign over Yugoslavia.
30. As stated in the House Report on the WPR, "the committee's objective was to reaffirm the constitutional given authority of Congress to declare war." House Report No. 93-287, reprinted in  U.S. Code Cong & Ad. News 2346.
31. The report states that on March 24, "U.S. military forces...began a series of air strikes in the Federal Republic of Yugoslavia...." Ex. 19. It outlines, as § 1544(a) mandates, the circumstances necessitating the use of the armed forces, the scope and duration of the hostilities and the constitutional and legislative authority relied upon. As to this last point, the President says he has "taken these actions pursuant to my constitutional authority as Commander-in-Chief and Chief Executive." Id.
32. In her Congressional testimony of April 21, 1999, Secretary of State Albright stated: "We have submitted reports that respect the War Powers Act." Ex. 33 at 76.
33. Section 1544 of the WPR authorizes certain concurrent resolutions after a § 4(a)(1 ) [1543(a)(1)] report is "submitted or required to be submitted" and certain joint resolutions when U.S. Armed Forces are "engaged in hostilities" outside the United States. The WPR details congressional priority procedures for treating such resolutions. 50 U.S.C. § § 1545 and 1546.
34. See House International Relations Committee, Reports No. 106-115 and 106-116, April 27, 1999. Exs. 53, 54. See also House Rules Committee, Report No. 106-118, April 27, 1999, § 6 (removed on House floor, April 28, 1999, Cong. Rec. H2385); Letter of Congressman Gilman to Secretary of State Albright (April 13, 1999) requesting written views "as soon as possible" on Campbell measures because of WPR statutory deadlines, Ex. 30; Cong. Record April 28, 1999, H 2376-2378, (Campbell resolutions have a unique procedural status under the War Powers Resolution.), Ex. 36; House International Affairs Committee, Committee Markup (April 27, 1999), Ex. 35 at 29-24.
35. See, e.g., Senate Foreign Relations Committee, Committee Markup (April 30, 1999) (Under WPR had until Saturday to act) Ex. 37 at 26; reported by Senate Committee on Foreign Relations, Cong. Rec. S4486 (April 30, 1999); considered on the floor, Cong. Rec. S4611-4616 (May 4, 1999); tabled, Cong. Rec. S4616 (May 4, 1999).
36. See Tribe, The Legislative Veto Decision: A Law by any Other Name?, 21 Harv. J. On Legis. 1, 20 n.95 (1984) (War Powers Resolution reporting and termination requirements "must be triggered by the objective circumstances of events such as 'hostilities'").
37. Section 1547(c) of the WPR says the term "includes the assignment of members of such armed forces to command, coordinate, participate in the movement of, or accompany the regular or irregular military forces of any foreign country when such military forces are engaged or there exists an imminent threat that such forces will become engaged in hostilities."
38. The Report further observed that:
in addition to a situation in which fighting has actually begun, hostilities also encompasses a state of confrontation in which no shots have been fired but where there is a clear and present danger of armed conflict.
Id. (Emphasis in original).
39. Secretary of State Albright, in a colloquy with Cong. Campbell, in the House International Relations Committee, April 21, 1999, stated, "clearly there is a conflict going on." Ex. 33. Assistant Secretary of State Larkin and Office of Legal Counsel of State Department Attorney Matheson, in a colloquy with Cong. Campbell in the House International Relations Committee, April 22, 1999, called the situation one of "armed conflict." The following exchange then occurred:
Mr. Campbell: It appears to be, Mr. Matheson, that the distinction you are raising between armed conflict and war is that war is armed conflict that has been declared to be war. Is that correct?
Mr. Matheson: Declared or recognized to be war.
Mr. Campbell: That is your distinction.
Mr. Matheson: Yes. That is the distinction in international law.
Mr. Campbell: There is no distinction in terms of facts on the ground as to the individual aspect of a conflict?
Mr. Matheson: Well, that is a matter for evaluation by States which may or may not choose to enter into a state of formal war.
40. Hearing on Kosovo. 106th Cong., 1st Sess. (1999) (Verbatim Transcript, April 15, 1999, 1999 WL 221637 (F.D.C.H.)) at 66.
41. The Veto message complained as follows:
One of its provisions would automatically cut off certain authorities after 60 days unless congress extended them....I am particularly disturbed by the fact that certain of the President's constitutional powers as Commander- in- Chief of the Armed Forces would terminate automatically under the resolution 60 days after they were invoked. No overt congressional action would be required to cut off these powers.... 9 Weekly Comp. Pres. Doc. 1285 (Oct. 24, 1973).
42. The Resolution passed the Senate on March 23.
43. Mitchell v. Laird, 488 F.2d 611, 614 (1973).
44. Letter from Assistant Secretary of State for Legislative Affairs to Chairman Gilman, HIRC, April 22, 1999. Ex 31.
45. This statement of the Court is in agreement with the decision in Dellums v. Bush and numerous other cases holding that it is appropriate for a court to decide whether a branch of government is exceeding its powers under the Constitution. Ange v. Bush, 752 F. Supp. 509 (1990), contains language indicating that such questions are nonjusticiable, although it appears that the court was really concerned with the narrower justiciability issue of the difficulty of making certain factual findings regarding "imminent hostilities." Id. at 514.
46. The Court actually said that injunctive relief would be appropriate as well. Id. at 901.
47. Lowry v. Reagan, 676 F. Supp. 333 (D.D.C 1987), does not undercut this conclusion. In Lowry, plaintiffs sought declaratory and injunctive relief to compel the President to file a WPR report pursuant to the reflagging of and escorting of Kuwaiti vessels in the Gulf. In declining to do so the court pointed out that the administration had stated that the WPR did not apply to the reflagging and that congressional legislation to say otherwise had failed. In that situation, which the court described as essentially a "debate on...whether 'hostilities' exist in" the Gulf, id. at 340, the court found that the plaintiffs' dispute was really with their fellow legislators and that the issue was non-justiciable. In the instant case no such factual question is presented and Congress recognized the report filed by the President as that mandated by the War Powers Resolution.
48. In Thompson v. Thompson, AKA Clay, 484 U.S. 174, 179 (1988), the Court pointed out that the focal point of the inquiry as to private right of action was Congress' intent in enacting the statute, but that the legislative history would typically be silent or ambiguous on the question. For this reason the Court has recognized that Congress' "intent may appear implicitly in the language of structure of the statute, or in the circumstances of its enactment." Thompson at 484 U.S. 179 quoting Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18 (1979).
49. If the answer to this question is affirmative, it is very unusual for a court to find that a plaintiff in the class for whose benefit the statute was enacted does not have a private right of action. Cannon v. University of Chicago, 441 U.S, 677, 690 n. 13 (1979).
50. The most recent and seminal case on the war issue in this district, Dellums v. Bush, was not plead or decided on WPR grounds.
51. Congress also voted on April 28, 1999 not to declare war, against Yugoslavia, by a vote of 427-2. H.J. Res. 44, Cong. Rec. H2440, Apr. 28, 1999. Ex. 36.
52. The Court in Dellums set forth a "requirement that the plaintiffs in an action of this kind be or represent a majority of the Members of Congress: the majority of the body that under the Constitution is the only one competent to declare war...." 752 F. Supp. at 1151 (emphasis added). The dispositive fact here is not whether a majority of Congress has the power to declare war, but how many members of the House are necessary to decide against war. The constitutional requirement that the President receive the affirmative approval of Congress contains as a necessary corollary that 50% of each House of Congress is sufficient to decide against war. The clear import of the Court's decision in Dellums is that a court ought not act until Congress demonstrates its intent. While the Court refers to "a majority of the Congress," it could not have meant to exclude other situations in which Congress had demonstrated its intent in a constitutionally-required manner. In other words, it must have meant the sufficient number of members to achieve a particular legislative outcome. For example, had the House voted in January 1991 to authorize war, but a majority of the Senate voted against authorizing an attack against Iraq, Senators ought to have been able to bring a ripe claim to enjoin war if the President nonetheless made clear he was ordering war notwithstanding the Senate vote.
53. That same day, the House spoke its mind on alternative courses of action as well. By a large margin (249-180), the House passed H.R. 1569, forbidding the deployment of ground elements of United States Armed Forces in Yugoslavia without the prior approval of Congress. Cong. Rec. H2414, April 28, 1999. Ex. 36. Also by a large margin (290 to 139), the House disapproved a resolution, H. Con. Res. 82, "to remove United States Armed Forces from their positions in connection with the present operations against the Federal Republic of Yugoslavia." Cong. Rec. H2427, April 28, 1999. Ex. 36.
54. Plaintiffs do not request this Court order the termination of the air strikes against Yugoslavia. They request simply that the Court declare that the war is being unconstitutionally waged because the President does not have the requisite approval from Congress. The manner in which that unconstitutional condition is remedied, either by a House vote to approve the war, a Congressional-Executive agreement to set limits on its conduct, or a grant of authorization to the Executive to negotiate a peaceful settlement, are for the political branches to decide.
Following the declaration of law sought by this action, the relationship between the Executive and Legislative branches will be re-attuned; and the outcome of the policy debate around this war, whatever it may be, will follow from that relationship. Petitioners, of course, make no request of this Court regarding this policy of this war. For this reason, petitioners ask only the minimal necessary to restore the constitutional scheme-namely, a declaration of what that scheme is.
55. As the Court noted in Dellums, plaintiffs' dispute is not with their fellow legislators and thus the doctrine of remedial discretion does not apply. 752 F. Supp. 1148-49. This is even more true where plaintiffs' position was affirmatively supported by their fellow legislators.
56. The War Powers Resolution standing inquiry is similar to the question of members of Congress standing to sue to prevent injury to their Article I power. The Resolution is a statute implementing the constitutional design. It requires the President to obtain the explicit authorization of Congress in order to continue deploying U.S. troops in combat for more than 60 days. Plaintiffs here voted against providing such authorization, and their votes have simply been ignored by the President.
57. See also Crockett v. Reagan, 558 F. Supp. 893, 898 (D.D.C. 1982) (recognizing that in large scale combat the question of whether the War Powers Resolution requirements were triggered would not present a political question).