Friday, May 29, 2009

Courts Can't Overrule War

Leftist repeatedly insist the Iraq invasion was illegal, for various reasons. I've shown why this is wrong on the merits. But more fundamentally, such challenges are beyond the competency of courts because "political questions, including many inter-branch disputes, involving Presidential actions in foreign affairs are non-justiciable." Further, the Plaintiffs in such cases invariably lack the Constitutional "standing" necessary to sue.

In 2008, the pacifistic New Jersey Peace Action organization--represented by Rutgers law professors and students--sued President Bush for violating the Constitution by failing to secure prior Congressional approval. Earlier this month, New Jersey Federal District Judge Jose Linares dismissed the complaint without reaching the merits precisely for the reasons previously outlined. The key quote is from pages 16-17:
Rather than leaving to Congress the issue of whether to declare war and thereby invoke various corresponding obligations, Plaintiff's would have this Court second-guess Congress's decision to authorize something short of "war." This is plainly not the judiciary's role. . . Congress is fully-equipped to analyze the treaties, policy considerations, and accompanying obligations that would follow from a declaration of war and to choose a separate path accordingly. The fact that the United States is engaged in military action absent a declaration of war does not automatically invite the judiciary's analysis as to whether that action is "constitutionally sanctioned."
The order also cited (at 9-12) lack of sufficient standing in view of the fact that no judicial remedy could redress Plaintiffs' alleged injuries, rending any judicial declaration an "advisory opinion"--impermissible under the Constitution's Article III.

As the Wall Street Journal's Ashby Jones concludes, liberals fought the war and "the war won." Chortle.


Wry Mouth said...

thanks for holding the line on the "illegal war" front. I'd always pondered, "illegal according to who?"


OBloodyHell said...

Not to dispute, but why doesn't this clause apply:

--to controversies to which the United States shall be a party.


Seems to match either war making or arguments for/against war making, or both.

Carl said...


The provision you cite primarily is applicable to cases brought by the United States; claims against the United States still are only permitted where the government has waived sovereign immunity. Further, any such claims still must qualify as a "controversy", which means Constitutional standing is required: the party seeking to sue must personally have suffered some actual or threatened injury that can fairly be traced to the challenged action of defendant and that the injury is likely to be redressed by a favorable decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-62 (1992). The plaintiffs' lack of standing (particularly causation and redressability) is addressed fully at pages 3-12 of Judge Linares's decision.

And, even where plaintiffs have standing, separation of powers traditionally makes courts reluctant to intervene in inter-branch disputes that should be a "political question":

"It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible - as the Judicial Branch is not - to the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is this power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system; the majority opinion of the Court of Appeals failed to give appropriate weight to this separation of powers."

Gilligan v. Morgan, 413 U.S. 1, 10-11 (1973). The political question doctrine is addressed appropriately at pages 12-18 of Judge Linares's ruling.