Legal Commentary

Quixotic Iraq War Litigation

By Jonathan H. Adler

The AP reports that the Rutgers-Newark Law School clinic has filed a cert petition seeking review of a case challenging the constitutionality of the Iraq War.  Filed on behalf of an Iraq war veteran, two mothers of deployed soldiers and an anti-war group, the suit maintains that the invasion of Iraq was not constitutionally authorized due to the lack of a formal Declaration of War by Congress. According to a Rutgers press release:

Plaintiffs? case is based on the original intent of the Framers of the Constitution to take the power of peace and war out of the hands of a single executive and place it in the hands of Congress. Plaintiffs? arguments rely heavily on the records of the Constitutional Convention on June 1, 1787, and the rulings of the Supreme Court in the first half of the 19th century.

The petition notes that since the end of World War II, U.S. presidents have regularly ignored the intent of the Framers and instituted foreign hostilities without obtaining a Declaration of War from Congress. However, the petition also says that in none of the prior wars did the President take the initiative to invade a sovereign nation without provocation. According to the petition, in the first half of the 19th century, the Supreme Court emphasized that the plain language of the Constitution meant that the President could not launch an all-out war in the absence of a Congressional Declaration.

The petition also notes that no federal court has ever examined the debates at the Constitutional Convention on June 1, 1787, when the decision as to the constitutional allocation of the war powers was decided, and asks the Supreme Court to at last take up the issue. Since World War II, the lower federal courts have dismissed suits challenging the President?s authority to wage war on technical procedural grounds.

The case raises fundamental issues concerning the intent of the Framers of the Constitution and the role of the Supreme Court as the ultimate interpreter of our national charter. The petition reminds the Court of the famous words of Thomas Jefferson that in Article I Section 8 of the Constitution the Framers had provided ?an effectual check to the Dog of War by transferring the power of letting it loose from Executive to Legislative body, from those are to spend to those who are to pay.?

The case was dismissed by a federal district court due to lack of standing and the political question docrtrine.  The U.S. Court of Appeals for the Third Circuit affirmed, also concluding the plaintiffs could not demonstrate standing.  Neither decision is at all surprising, and I would be quite surprised were the Supreme Court to grant cert, let alone to find this case justiciable.

(Hat tip: How Appealing)

Full post as published by The Volokh Conspiracy on November 06, 2010 (boomark / email).