John Doe v. Goerge W. Bush

United States Court of Appeals
For the First Circuit

No. 03-1266

JOHN DOE I, JOHN DOE II, JOHN DOE III, JOHN DOE IV, JANE DOE I,
SUSAN E. SCHUMANN, CHARLES RICHARDSON, NANCY LESSIN, JEFFREY
MCKENZIE, JOHN CONYERS, DENNIS KUCINICH, JESSE JACKSON, JR.,
SHEILA JACKSON LEE, JIM MCDERMOTT, JOSÉ E. SERRANO, SALLY WRIGHT,
DEBORAH REGAL, ALICE COPELAND BROWN, JERRYE BARRE, JAMES STEPHEN
CLEGHORN, LAURA JOHNSON MANIS, SHIRLEY H. YOUNG, JULIAN
DELGAUDIO, ROSE DELGAUDIO, DANNY K. DAVIS, MAURICE D. HINCHEY,
CAROLYN KILPATRICK, PETE STARK, DIANE WATSON, LYNN C. WOOLSEY,

Plaintiffs, Appellants,

v.

GEORGE W. BUSH, President,
DONALD H. RUMSFELD, Secretary of Defense,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Circuit Judge,
Cyr and Stahl, Senior Circuit Judges.

John C. Bonifaz, with whom Cristobal Bonifaz, Law
Offices of Cristobal Bonifaz, Margaret Burnham, Max D. Stern, and
Stern Shapiro Weissberg & Garin were on the brief, for
appellants.
Michael Avery on the brief for seventy-four concerned
law professors, amici curiae.
D. Lindley Young on the brief amicus curiae in propria
persona.
 Gregory G. Katsas, Deputy Assistant Attorney General,
with whom Robert D. McCallum, Jr., Assistant Attorney General,
Michael J. Sullivan, United States Attorney, Douglas N. Letter,
Attorney, Civil Division, Scott R. McIntosh, Attorney, Civil
Division, and Teal Luthy, Attorney, Civil Division, were on the
brief, for appellees.

March 13, 2003
 LYNCH, Circuit Judge. Plaintiffs are active-duty members

of the military, parents of military personnel, and members of the

U.S. House of Representatives.1 They filed a complaint in district

court seeking a preliminary injunction to prevent the defendants,

President George W. Bush and Secretary of Defense Donald Rumsfeld,

from initiating a war against Iraq. They assert that such an

action would violate the Constitution. The district court

dismissed the suit, and plaintiffs appeal. We affirm the

dismissal.

In October 2002, Congress passed the Authorization for

Use of Military Force Against Iraq Resolution of 2002 (the "October

Resolution"), Pub L. No. 107-243, 116 Stat. 1498. Plaintiffs argue

that the October Resolution is constitutionally inadequate to

authorize the military offensive that defendants are now planning

against Iraq. See U.S. Const. art. I, § 8, cl. 11 (granting

Congress the power "[t]o declare war"). They base this argument on

two theories. They argue that Congress and the President are in

collision -- that the President is about to act in violation of the

October Resolution. They also argue that Congress and the

1
The military personnel and some of the parents are
proceeding under pseudonyms, pursuant to an order by the district
court that is not before us. The members of the House of
Representatives are John Conyers, Dennis Kucinich, Jesse Jackson,
Jr., Sheila Jackson Lee, Jim McDermott, José E. Serrano, Danny K.
Davis, Maurice D. Hinchey, Carolyn Kilpatrick, Pete Stark, Diane
Watson, and Lynn C. Woolsey. We also acknowledge the assistance
provided by amicus curiae on behalf of the plaintiffs.

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President are in collusion -- that Congress has handed over to the

President its exclusive power to declare war.

In either case, plaintiffs argue, judicial intervention

is necessary to preserve the principle of separation of powers

which undergirds our constitutional structure. Only the judiciary,

they argue, has the constitutionally assigned role and the

institutional competence to police the boundaries of the

constitutional mandates given to the other branches: Congress alone

has the authority to declare war and the President alone has the

authority to make war.

The plaintiffs argue that important and increasingly

vital interests are served by the requirement that it be Congress

which decides whether to declare war. Quoting Thomas Jefferson,

they argue that congressional involvement will slow the "dogs of

war"; that Congress, the voice of the people, should make this

momentous decision, one which will cost lives; and that

congressional support is needed to ensure that the country is

behind the war, a key element in any victory. They also argue

that, absent an attack on this country or our allies, congressional

involvement must come prior to war, because once war has started,

Congress is in an uncomfortable default position where the use of

its appropriations powers to cut short any war is an inadequate

remedy.

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 The defendants are equally eloquent about the impropriety

of judicial intrusion into the "extraordinarily delicate foreign

affairs and military calculus, one that could be fatally upset by

judicial interference." Such intervention would be all the worse

here, defendants say, because Congress and the President are in

accord as to the threat to the nation and the legitimacy of a

military response to that threat.

The case before us is a somber and weighty one. We have

considered these important concerns carefully, and we have

concluded that the circumstances call for judicial restraint. The

theory of collision between the legislative and executive branches

is not suitable for judicial review, because there is not a ripe

dispute concerning the President's acts and the requirements of the

October Resolution passed by Congress. By contrast, the theory of

collusion, by its nature, assumes no conflict between the political

branches, but rather a willing abdication of congressional power to

an emboldened and enlarged presidency. That theory is not fit for

judicial review for a different, but related, reason: Plaintiffs'

claim that Congress and the President have transgressed the

boundaries of their shared war powers, as demarcated by the

Constitution, is presently insufficient to present a justiciable

issue. Common to both is our assessment that, before courts

adjudicate a case involving the war powers allocated to the two

political branches, they must be presented with a case or

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controversy that clearly raises the specter of undermining the

constitutional structure.2

I.

Tensions between the United States and Iraq have been

high at least since Iraq invaded neighboring Kuwait in 1990. In

1991, the United States led an international coalition in the

Persian Gulf War, which drove Iraqi forces from Kuwait. Before

that conflict, Congress passed a resolution quite similar to the

October Resolution. See Pub. L. No. 102-1, 105 Stat. 3 (1991). As

part of the ceasefire ending the Gulf War, Iraq agreed to United

Nations Security Council Resolution 687, which required that Iraq

end the development of nuclear, biological, and chemical weapons,

destroy all existing weapons of this sort and their delivery

systems, and allow United Nations weapons inspections to confirm

its compliance with these terms. See S.C. Res. 687, U.N. SCOR,

46th Sess., 2981st mtg., U.N. Doc. S/RES/687 (1991). Since that

time, Iraq has repeatedly been in breach of this agreement by,

among other things, blocking inspections and hiding banned weapons.

Iraq ended cooperation with the weapons inspection program in 1998.

Since 1991, the United States and other nations have enforced a no-

2
We do not reach all the issues concerning the
justiciability of the case, including the question of the parties'
standing. There is no required sequence to the consideration of
the various non-merits issues presented here. See Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 584-85 (1999); In re Middlesex
Power Equip. & Marine, Inc., 292 F.3d 61, 66 n.1 (1st Cir. 2002).

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fly zone near the Kuwaiti border and on several occasions have

launched missile strikes against Iraq.

Congress has been engaged in the American response to

Iraqi noncompliance throughout this period. It was well-informed

about ongoing American military activities, enforcement of the no-

fly zone, and the missile strikes. In 1998, Congress passed a

joint resolution which chronicled Iraqi noncompliance and declared

that "the Government of Iraq is in material and unacceptable breach

of its international obligations, and therefore the President is

urged to take appropriate action, in accordance with the

Constitution and relevant laws of the United States, to bring Iraq

into compliance with its international obligations." Pub. L. No.

105-235, 112 Stat. 1538, 1541 (1998). Later that year, Congress

also passed the Iraq Liberation Act of 1998, Pub. L. No. 105-338,

112 Stat. 3178. This statute authorized assistance, including

military equipment and training, for "Iraqi democratic opposition

organizations," and declared that it should be United States policy

to remove Iraqi leader Saddam Hussein from power. Id. §§ 3, 4, 112

Stat. at 3179.3

The United Nations has also remained engaged in the

dispute ever since the Persian Gulf War. It supervised weapons

3
Another provision of the Iraq Liberation Act stated that,
other than the military assistance provision in § 4(a)(2), the Act
should not "be construed to authorize or otherwise speak to the use
of United States Armed Forces." § 8, 112 Stat. at 3181.
Nonetheless, this statute provides important context.

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inspections, supported economic sanctions against Iraq, and,

through the Security Council, repeatedly passed resolutions

declaring that Iraq was not fulfilling the conditions of Resolution

687. On September 12, 2002, President Bush addressed the United

Nations General Assembly. There he called for a renewed effort to

demand Iraqi disarmament and indicated that he thought military

force would be necessary if diplomacy continued to fail. In

response, Iraq agreed to allow inspectors back into the country,

but it has failed to comply fully with the earlier Security Council

resolutions.

The week after his September 12 speech at the United

Nations, President Bush proposed language for a congressional

resolution supporting the use of force against Iraq. Detailed and

lengthy negotiations between and among congressional leaders and

the Administration hammered out a revised and much narrower version

of the resolution. The House of Representatives passed this

measure by a vote of 296 to 133 on October 10, 2002; the Senate

followed suit on October 11 by a vote of 77 to 23. The full text

of the October Resolution is attached as an appendix to this

opinion.

On November 8, 2002, the Security Council passed

Resolution 1441, which declared that Iraq remained in material

breach of its obligations and offered "a final opportunity to

comply with its disarmament obligations." S.C. Res. 1441, U.N.

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SCOR, 57th Sess., 4644th mtg., U.N. Doc. S/RES/687 (2002). It also

noted that "the Council has repeatedly warned Iraq that it will

face serious consequences as a result of its continued violations

of its obligations." Id. In diplomatic parlance, the phrase

"serious consequences" generally refers to military action. More

than 200,000 United States troops are now deployed around Iraq,

preparing for the possibility of an invasion.

The complaint was filed, along with motions for

preliminary injunction and expedited hearing, on February 13, 2003.

The district court heard oral argument on February 24 and denied

the motion in an order issued that day. The court released a more

detailed written opinion on February 27. See Doe v. Bush, No. 03-

10284, 2003 U.S. Dist. LEXIS 2773 (D. Mass. Feb. 27, 2003).

Plaintiffs appealed and this court expedited consideration, hearing

oral argument on March 4, 2003 and receiving additional briefing on

March 11. Because the case was dismissed on a pretrial motion, we

independently review the claims afresh.

II.

The Constitution reserves the war powers to the

legislative and executive branches. This court has declined the

invitation to become involved in such matters once before. Over

thirty years ago, the First Circuit addressed a war powers case

challenging the constitutionality of the Vietnam War on the basis

that Congress had not declared war. Massachusetts v. Laird, 451

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F.2d 26 (1st Cir. 1971). The court found that other actions by

Congress, such as continued appropriations to fund the war over the

course of six years, id. at 34, provided enough indication of

congressional approval to put the question beyond the reach of

judicial review:

The war in Vietnam is a product of the jointly supportive
actions of the two branches to whom the congeries of the
war powers have been committed. Because the branches are
not in opposition, there is no necessity of determining
boundaries. Should either branch be opposed to the
continuance of hostilities, however, and present the
issue in clear terms, a court might well take a different
view. This question we do not face.

Id. Applying this precedent to the case at hand today, the

district court concluded, "[T]here is a day to day fluidity in the

situation that does not amount to resolute conflict between the

branches -- but that does argue against an uninformed judicial

intervention," Doe, 2003 U.S. Dist. LEXIS 2773, at *11. See Drinan

v. Nixon, 364 F. Supp. 854, 858 (D. Mass. 1973); see also DaCosta

v. Laird, 471 F.2d 1146, 1157 (2d Cir. 1973); Orlando v. Laird, 443

F.2d 1039, 1043 (2d Cir. 1971); cf. United States v. Kin-Hong, 110

F.3d 103, 111 (1st Cir. 1997) (drawing support from political

question doctrine in case where "questions involve an evaluation of

contingent political events").

The lack of a fully developed dispute between the two

elected branches, and the consequent lack of a clearly defined

issue, is exactly the type of concern which causes courts to find

a case unripe. In his concurring opinion in Goldwater v. Carter,

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444 U.S. 996 (1979), Justice Powell stated that courts should

decline, on ripeness grounds, to decide "issues affecting the

allocation of power between the President and Congress until the

political branches reach a constitutional impasse." Id. at 997

(Powell, J., concurring). A number of courts have adopted Justice

Powell's ripeness reasoning in cases involving military powers.

See Greenham Women Against Cruise Missiles v. Reagan, 755 F.2d 34,

37 (2d Cir. 1985) (per curiam); Dellums v. Bush, 752 F. Supp. 1141,

1150 & nn.23-25 (D.D.C. 1990); see also Sanchez-Espinoza v. Reagan,

770 F.2d 202, 210-11 (D.C. Cir. 1985) (R. Ginsburg, J.,

concurring).

Ripeness doctrine involves more than simply the timing of

the case. It mixes various mutually reinforcing constitutional and

prudential considerations. See Mangual v. Rotger-Sabat, 317 F.3d

45, 59 (1st Cir. 2003). One such consideration is the need "to

prevent the courts, through avoidance of premature adjudication,

from entangling themselves in abstract disagreements." Abbott

Labs. v. Gardner, 387 U.S. 136, 148 (1967). Another is to avoid

unnecessary constitutional decisions. Reg'l Rail Reorganization

Act Cases, 419 U.S. 102, 138 (1974). A third is the recognition

that, by waiting until a case is fully developed before deciding

it, courts benefit from a focus sharpened by particular facts. See

Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 736 (1998). The

case before us raises all three of these concerns.

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 These rationales spring, in part, from the recognition

that the scope of judicial power is bounded by the Constitution.

"It is a principle of first importance that the federal courts are

courts of limited jurisdiction." C.A. Wright & M.K. Kane, Law of

Federal Courts 27 (6th ed. 2002). Article III of the Constitution

limits jurisdiction to "cases" and "controversies," and prudential

doctrines may counsel additional restraint.

The ripeness of a dispute is determined de novo. Stern

v. U.S. Dist. Court, 214 F.3d 4, 10 (1st Cir. 2000). Ripeness is

dependent on the circumstances of a particular case. See Ernst &

Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir.

1995) ("[T]he various integers that enter into the ripeness

equation play out quite differently from case to case . . . .").

Two factors are used to evaluate ripeness: "the fitness of the

issues for judicial decision and the hardship to the parties of

withholding court consideration." Abbot Labs., 387 U.S. at 149.

Ordinarily, both factors must be present. Ernst & Young, 45 F.3d

at 535.

The hardship prong of this test is most likely satisfied

here; the current mobilization already imposes difficulties on the

plaintiff soldiers and family members, so that they suffer "present

injury from a future contemplated event." McInnis-Misenor v. Me.

Med. Ctr., 319 F.3d 63, 70 (1st Cir. 2003). Plaintiffs also lack

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a realistic opportunity to secure comparable relief by bringing the

action at a later time. See Ohio Forestry, 523 U.S. at 734.4

The fitness inquiry here presents a greater obstacle.

Fitness "typically involves subsidiary queries concerning finality,

definiteness, and the extent to which resolution of the challenge

depends upon facts that may not yet be sufficiently developed."

Ernst & Young, 45 F.3d at 535. The baseline question is whether

allowing more time for development of events would "significantly

advance our ability to deal with the legal issues presented [or]

aid us in their resolution." Duke Power Co. v. Carolina Envtl.

Study Group, 438 U.S. 59, 82 (1978); see Ohio Forestry, 523 U.S.

at 737; Regional Rail, 419 U.S. at 144-45; Gun Owners' Action

League v. Swift, 284 F.3d 198, 208-09 (1st Cir. 2002); R.I. Ass'n

of Realtors v. Whitehouse, 199 F.3d 26, 34 (1st Cir. 1999). "[T]he

question of fitness does not pivot solely on whether a court is

capable of resolving a claim intelligently, but also involves an

assessment of whether it is appropriate for the court to undertake

the task." Ernst & Young, 45 F.3d at 537. These prudential

considerations are particularly strong in this case, which presents

4
Defendants, citing Ange v. Bush, 752 F. Supp. at 515,
assert that no claim can ever be ripe until an attack has actually
occurred. We would be reluctant to accept this assertion; it would
seem to say that a case cannot be ripe on the basis of reasonably
predictable future injury. This is not the law. "[T]he doctrine
of ripeness . . . asks whether an injury that has not yet happened
is sufficiently likely to happen to warrant judicial review." Gun
Owners' Action League v. Swift, 284 F.3d 198, 205 (1st Cir. 2002)
(internal quotation omitted).

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a politically-charged controversy involving momentous issues, both

substantively (war and peace) and constitutionally (the powers of

coequal branches). See Dellums, 752 F. Supp. at 1149.

One thrust of the plaintiffs' argument is that the

October Resolution only permits actions sanctioned by the Security

Council.5 In plaintiffs' view, the Resolution's authorization is

so narrow that, even with Security Council approval of military

force, Congress would need to pass a new resolution before United

States participation in an attack on Iraq would be constitutional.

At a minimum, according to plaintiffs, the October Resolution

authorizes no military action "outside of a United Nations

coalition."

For various reasons, this issue is not fit now for

judicial review. For example, should there be an attack, Congress

may take some action immediately. The purported conflict between

the political branches may disappear. "[T]hat the future event may

never come to pass augurs against a finding of fitness." McInnis-

Misenor, 319 F.3d at 72.

Many important questions remain unanswered about whether

there will be a war, and, if so, under what conditions. Diplomatic

5
Plaintiffs argue that § 3(a) of the October Resolution,
which authorizes use of force to "defend the national security of
the United States . . . and . . . enforce all relevant United
Nations Security Council resolutions," 116 Stat. at 1501, excludes
any action that is not called for by a Security Council resolution.
They support their reading by reference to the October Resolution's
preamble and to legislative history.

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negotiations, in particular, fluctuate daily. The President has

emphasized repeatedly that hostilities still may be averted if Iraq

takes certain actions. The Security Council is now debating the

possibility of passing a new resolution that sets a final deadline

for Iraqi compliance. United Nations weapons inspectors continue

their investigations inside Iraq. Other countries ranging from

Canada to Cameroon have reportedly pursued their own proposals to

broker a compromise. As events unfold, it may become clear that

diplomacy has either succeeded or failed decisively. The Security

Council, now divided on the issue, may reach a consensus. To

evaluate this claim now, the court would need to pile one

hypothesis on top of another. We would need to assume that the

Security Council will not authorize war, and that the President

will proceed nonetheless. See id. at 72-73 (outlining chain of

uncertain events necessary to make case ripe); Ernst & Young, 45

F.3d at 538 (same).

Thus, even assuming that plaintiffs correctly interpret

the commands of the legislative branch, it is impossible to say yet

whether or not those commands will be obeyed. As was the situation

in Goldwater, "[i]n the present posture of this case, we do not

know whether there will ever be an actual confrontation between the

Legislative and Executive Branches." 444 U.S. at 998 (Powell, J.,

concurring).

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 Our analysis is based on ripeness rather than the

political question doctrine.6 The political question doctrine --

that courts should not intervene in questions that are the province

of the legislative and executive branches -- is a famously murky

one. See E. Chemerinsky, Federal Jurisdiction §2.6, at 144 (3d ed.

1999) ("In many ways, the political question doctrine is the most

confusing of the justiciability doctrines."). It has also been

used fairly infrequently to block judicial review. The modern

definition of the doctrine was established in the landmark case of

6
While the Supreme Court has not considered a modern war
powers case, lower courts have, and they have reached differing
conclusions about the applicability of the political question
doctrine. Compare, e.g., Campbell v. Clinton, 203 F.3d 19, 37-41
(D.C. Cir. 2000) (Tatel, J., concurring) (arguing that challenge to
air campaign in Yugoslavia would not pose a political question);
Berk v. Laird, 429 F.2d 302, 306 (2d Cir. 1970) (holding that
challenge to Vietnam War did not necessarily raise political
question and remanding); Dellums, 752 F. Supp. at 1150 (rejecting
argument that political question doctrine foreclosed challenge to
Persian Gulf War); with Campbell, 203 F.3d at 24-28 (Silberman, J.,
concurring) (arguing that courts lack manageable standards to
adjudicate such cases); Holtzman v. Schlesinger, 484 F.2d 1307,
1309-11 (2nd Cir. 1973) (challenge to hostilities in Cambodia
rejected as political question); Ange, 752 F. Supp. at 512 (same
for Persian Gulf War). See generally Laird, 451 F.2d at 29 n.2
(collecting cases); T.M. Franck, Political Questions/Judicial
Answers 45-96 (1992) (tracing history of judicial abstention and
lack thereof in foreign affairs and war powers cases). In some
relevant older cases, the Supreme Court did reach the merits of
cases concerning war. See The Prize Cases, 67 U.S. (2 Black) 635,
670-71 (1862) (finding "legislative sanction" for Civil War while
reserving question of whether it was required); Talbot v. Seeman,
5 U.S. (1 Cranch) 1, 33 (1801) (Marshall, C.J.) (finding quasi-war
with France authorized by Congress).

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Baker v. Carr, 369 U.S. 186 (1962).7 In the forty years since that

case, the Supreme Court has found a case nonjusticiable on the

basis of the political question doctrine only twice. See Nixon v.

United States, 506 U.S. 224, 236 (1993) (Senate procedures for

impeachment of a federal judge); Gilligan v. Morgan, 413 U.S. 1, 12

(1973) (training, weaponry, and orders of Ohio National Guard).

Our court has been similarly sparing in its reliance on the

political question doctrine.8

Ultimately, however, the classification matters less than

the principle. If courts may ever decide whether military action

contravenes congressional authority, they surely cannot do so

7
Baker summarized political questions as follows:

Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department; or a lack of judicially discoverable and
manageable standards for resolving it; or the impossibility of
deciding without an initial policy determination of a kind
clearly for nonjudicial discretion; or the impossibility of a
court's undertaking independent resolution without expressing
lack of the respect due coordinate branches of government; or
an unusual need for unquestioning adherence to a political
decision already made; or the potentiality of embarrassment
from multifarious pronouncements by various departments on one
question.

Id. at 217.
8
This court has cited the Baker formulation only twice
besides Massachusetts v. Laird, supra. One case used Baker to
support deference to the Secretary of State in the interpretation
of an extradition treaty. See Kin-Hong, 110 F.3d at 111-12. The
other dismissed a pro se complaint objecting to the substance of
Unites States foreign policy. See Eveland v. Dir. of Cent.
Intelligence Agency, 843 F.2d 46, 49 (1st Cir. 1988) (per curiam).

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unless and until the available facts make it possible to define the

issues with clarity.9

III.

Plaintiffs' collusion theory presents different concerns.

We understand plaintiffs to make two distinct arguments as to why

an attack under the October Resolution would be unlawful. The

first argument, discussed above, is that the October Resolution

placed conditions on the President's authority to order action in

Iraq, and that he is preparing to disregard those conditions. The

other argument, our focus now, is that the October Resolution

delegates excessive authority to the President, rendering it

constitutionally inadequate as a vehicle for Congress to "declare

war."10

9
This conclusion does not necessarily mean that similar
challenges would never be ripe for decision before military action
began; we reiterate the case-specific nature of the ripeness
inquiry. Here, too many crucial facts are missing.
10
The plaintiffs appropriately disavow the formalistic
notion that Congress only authorizes military deployments if it
states, "We declare war." This has never been the practice and it
was not the understanding of the founders. See J.H. Ely, War and
Responsibility 25-26 (1993). Congressional authorization for
military action has often been found in the passage of resolutions
that lacked these "magic words," or in continued enactments of
appropriations or extensions of the draft which were aimed at
waging a particular war. See, e.g., Laird, 451 F.2d at 34 ("[I]n
a situation of prolonged but undeclared hostilities, where the
executive continues to act . . . with steady Congressional support,
the Constitution has not been breached."); Orlando, 443 F.2d at
1042-43 ("[T]he test is whether there is any action by the Congress
sufficient to authorize or ratify the military activity in
question."); see also Ely, supra, at 12-46 (arguing that Congress
gave constitutionally sufficient authorization for ground war in

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 According to this second argument, the Constitution

deliberately vested power to declare war in the legislative branch

as a necessary check on the power of the executive branch, and

Congress is not free to upset this careful balance by giving power

to the President. This claim of collusion does not align precisely

with the test that the political branches have yet to reach a

"constitutional impasse"; the claim is that the branches have

agreed to an unconstitutional transfer of the "war declaration"

powers from Congress to the President. Some initial review of the

merits of the claim is "inherent when the constitutional issue is

posed in terms of scope of authority." Laird, 451 F.2d at 33-34.

The Supreme Court has been willing to adjudicate other

cases concerning the distribution of constitutional authority

between the legislative and executive branches, notwithstanding the

call for restraint embodied in the political question doctrine.

Sometimes it rejects the application of the political question

doctrine explicitly. See, e.g., United States v. Munoz-Flores, 495

U.S. 385, 389-96 (1990); Immigration & Naturalization Serv. v.

Chadha, 462 U.S. 919, 942-43 (1983). Other times the Court has

merely proceeded to the merits without explicitly rejecting the

political question doctrine. See, e.g., Clinton, 524 U.S. at 421;

Morrison v. Olson, 487 U.S. 654 (1988); cf. Bush v. Gore, 531 U.S.

98, 112 (2000) (Rehnquist, C.J., concurring) (considering

Vietnam and Cambodia).

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separation of powers between state legislature and state judiciary

under U.S. Const. art. II, § 1, cl. 2).

The Supreme Court has recognized a role for judicial

review of these types of separation of powers claims even when

Congress appears to have agreed to the challenged arrangement. In

Clinton v. City of New York, supra, a claim was brought by citizens

deprived of the benefits of an appropriation that the President

cancelled under the procedures in the Line Item Veto Act, 2 U.S.C.

§§ 691-692 (2000). These citizens argued that Congress had

unconstitutionally delegated to the President its authority under

the Presentment Clause, U.S. Const. art. I, § 7, cl. 2. The Court

reviewed the constitutionality of the Act despite apparent support

for it from both of the other branches, which had jointly enacted

the statute and used its procedures. See Clinton, 524 U.S. at 428-

36 (reviewing jurisdiction extensively without consideration of

political question doctrine); see also Chadha, 462 U.S. at 941

(judicial review of legislative veto that had similarly been

enacted and used).

In some ways, the claims made by plaintiffs here parallel

those made in Clinton: that the Constitution vested power in the

legislative branch as a necessary check on the power of the

executive branch, and that Congress is not free to upset the

careful balance by giving power to the executive. See 524 U.S. at

452 (Kennedy, J., concurring) ("That a congressional cession of

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power is voluntary does not make it innocuous. . . . Abdication of

responsibility is not part of the constitutional design."); cf. New

York v. United States, 505 U.S. 144, 182 (1992) ("The

Constitution's division of power among the three branches is

violated where one branch invades the territory of another, whether

or not the encroached-upon branch approves the encroachment.").

There are also, however, significant differences between

Clinton and the case before us. For one, in Clinton the President

had fully exercised the power that was at issue, which "removed any

concern" about ripeness. 524 U.S. at 430. For another, the Line

Item Veto Act contained specific provisions, accepted by both

Congress and the President when they enacted the law, which not

only permitted judicial review of the statute's validity but

created a special expedited process for it. 2 U.S.C. § 692; see

Clinton, 524 U.S. at 428-30; Raines v. Byrd, 521 U.S. 811, 815-16

(1997). There was less danger of courts invading the province of

these other branches, because specific statutory authority directed

them to consider the case. A third difference is the scale of the

purported delegation. The Line Item Veto Act gave the President

wide discretion to cancel items of discretionary budget authority,

direct spending, or limited tax benefits. 2 U.S.C. § 691(a). The

determinations required of the President in the October Resolution

are much more narrowly focused.

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 Perhaps the most important difference is the shared

nature of the powers in question here. The Constitution explicitly

divides the various war powers between the political branches. To

the Congress goes the power to "declare war," U.S. Const. art. 1,

§ 8, cl. 11; to "raise and support armies" through appropriations

of up to two years, cl. 12; to "provide and maintain a navy," cl.

13; and to "make rules for the government and regulation of the

land and naval forces," cl. 14. The President's role as commander-

in-chief is one of the few executive powers enumerated by the

Constitution. U.S. Const. art. II, § 2, cl. 1.

Given this "amalgam of powers," the Constitution overall

"envisages the joint participation of the Congress and the

executive in determining the scale and duration of hostilities."

Laird, 451 F.2d at 31-32 (emphasis added). "'The great ordinances

of the Constitution do not establish and divide fields of black and

white.'" Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 597

(1952) (Frankfurter, J., concurring) (quoting Springer v.

Philippine Islands, 277 U.S. 189, 209 (1928) (Holmes, J.,

dissenting)). Rather, there is sometimes a "zone of twilight in

which [the President] and Congress may have concurrent authority,

or in which its distribution is uncertain. . . . In this area, any

actual test of power is likely to depend on the imperatives of

events and contemporary imponderables rather than on abstract

-22-
theories of law." Youngstown, 343 U.S. at 637 (Jackson, J.,

concurring).11

In this zone of shared congressional and presidential

responsibility, courts should intervene only when the dispute is

clearly framed. See Nixon, 506 U.S. at 228-29; Baker, 369 U.S. at

217. An extreme case might arise, for example, if Congress gave

absolute discretion to the President to start a war at his or her

will. Cf. Clinton, 524 U.S. at 423, 425 (describing President's

broad explanations for use of cancellation authority). Plaintiffs'

objection to the October Resolution does not, of course, involve

any such claim. Nor does it involve a situation where the

President acts without any apparent congressional authorization, or

against congressional opposition.

The mere fact that the October Resolution grants some

discretion to the President fails to raise a sufficiently clear

constitutional issue. The plaintiffs argue that Congress is

11
As one commentator has said:

It is therefore an error of considerable significance to
adopt uncritically an "either/or" logic -- to assume that
the doctrine of separation of powers requires that power
must be either in, and only in, congress or the
president. Such a rigid, mechanical view has never
accurately described the relationship between congress
and the presidency even with respect to internal affairs;
it is wholly insupportable in the area of foreign
affairs. The fact is that power may inhere in both
branches.

H.P. Monaghan, Presidential War-Making, 50 B.U. L. Rev. 19, 25
(1970) (special issue) (emphasis removed).

-23-
constitutionally forbidden from deciding that certain conditions

are necessary to lead to war and then yielding to the President the

authority to make the determination of whether those conditions

exist.12 The President, in this view, has power to make such

determinations only in the context of repelling sudden attacks on

this country or its allies. See Mitchell v. Laird, 488 F.2d 611,

613-14 (D.C. Cir. 1973). The Supreme Court recently and forcefully

reiterated that, notwithstanding the Constitution's vesting of "all

legislative power" in Congress, U.S. Const. art. I, § 1 (emphasis

added), enactments which leave discretion to the executive branch

are permissible as long as they offer some "intelligible principle"

to guide that discretion. See Whitman v. Am. Trucking Ass'ns, 531

U.S. 457, 472-76 (2001) (quoting J.W. Hampton, Jr., & Co. v. United

States, 276 U.S. 394, 409 (1928)). War powers, in contrast to "all

legislative power," are shared between the political branches.

Furthermore, the Supreme Court has also suggested that the

nondelegation doctrine has even less applicability to foreign

affairs. See Zemel v. Rusk, 381 U.S. 1, 17 (1965) (when delegating

authority over foreign relations, Congress may leave more details

to the President than in domestic affairs, short of granting

12
Suppose, however, that Congress did pass a law stating
simply, "The United States declares war on Iraq." This would still
leave to the President all determinations concerning timing,
strategy, and tactics; the President would decide both when and how
to start an attack and when and how to stop it. See Ely, supra, at
23-25. It is difficult to see how Congress could be said to shirk
its constitutional responsibilities in that scenario.

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"totally unrestricted freedom of choice"). The reference to

nondelegation is thus of little help to plaintiffs in trying to

present the type of serious issue necessary to overcome judicial

restraint in the adjudication of war powers cases.

Nor is there clear evidence of congressional abandonment

of the authority to declare war to the President. To the contrary,

Congress has been deeply involved in significant debate, activity,

and authorization connected to our relations with Iraq for over a

decade, under three different presidents of both major political

parties, and during periods when each party has controlled

Congress. It has enacted several relevant pieces of legislation

expressing support for an aggressive posture toward Iraq, including

authorization of the prior war against Iraq and of military

assistance for groups that would overthrow Saddam Hussein. It has

also accepted continued American participation in military

activities in and around Iraq, including flight patrols and missile

strikes. Finally, the text of the October Resolution itself spells

out justifications for a war and frames itself as an

"authorization" of such a war.

It is true that "courts possess power to review either

legislative or executive action that transgresses identifiable

textual limits" on constitutional power. Nixon, 506 U.S. at 238.

Questions about the structure of congressional power can be

justiciable under the proper circumstances. See, e.g., Clinton,

-25-
524 U.S. at 428-36; Chadha, 462 U.S. at 941-44. But courts are

rightly hesitant to second-guess the form or means by which the

coequal political branches choose to exercise their textually

committed constitutional powers. See Orlando, 443 F.2d at 1043.

As the circumstances presented here do not warrant judicial

intervention, the appropriate recourse for those who oppose war

with Iraq lies with the political branches.

Dismissal of the complaint is affirmed.

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 PUBLIC LAW 107–243—OCT. 16, 2002

AUTHORIZATION FOR USE OF MILITARY
FORCE AGAINST IRAQ RESOLUTION OF 2002

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 116 STAT. 1498 PUBLIC LAW 107–243—OCT. 16, 2002

Public Law 107–243
107th Congress
Joint Resolution
Oct. 16, 2002
To authorize the use of United States Armed Forces against Iraq.
[H.J. Res. 114]
Whereas in 1990 in response to Iraq’s war of aggression against
and illegal occupation of Kuwait, the United States forged a
coalition of nations to liberate Kuwait and its people in order
to defend the national security of the United States and enforce
United Nations Security Council resolutions relating to Iraq;
Whereas after the liberation of Kuwait in 1991, Iraq entered into
a United Nations sponsored cease-fire agreement pursuant to
which Iraq unequivocally agreed, among other things, to eliminate
its nuclear, biological, and chemical weapons programs and the
means to deliver and develop them, and to end its support for
international terrorism;
Whereas the efforts of international weapons inspectors, United
States intelligence agencies, and Iraqi defectors led to the dis-
covery that Iraq had large stockpiles of chemical weapons and
a large scale biological weapons program, and that Iraq had
an advanced nuclear weapons development program that was
much closer to producing a nuclear weapon than intelligence
reporting had previously indicated;
Whereas Iraq, in direct and flagrant violation of the cease-fire,
attempted to thwart the efforts of weapons inspectors to identify
and destroy Iraq’s weapons of mass destruction stockpiles and
development capabilities, which finally resulted in the withdrawal
of inspectors from Iraq on October 31, 1998;
Whereas in Public Law 105–235 (August 14, 1998), Congress con-
cluded that Iraq’s continuing weapons of mass destruction pro-
grams threatened vital United States interests and international
peace and security, declared Iraq to be in ‘‘material and unaccept-
able breach of its international obligations’’ and urged the Presi-
dent ‘‘to take appropriate action, in accordance with the Constitu-
tion and relevant laws of the United States, to bring Iraq into
compliance with its international obligations’’;
Whereas Iraq both poses a continuing threat to the national security
of the United States and international peace and security in
the Persian Gulf region and remains in material and unacceptable
breach of its international obligations by, among other things,
continuing to possess and develop a significant chemical and
biological weapons capability, actively seeking a nuclear weapons
capability, and supporting and harboring terrorist organizations;
Whereas Iraq persists in violating resolution of the United Nations
Security Council by continuing to engage in brutal repression
of its civilian population thereby threatening international peace

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 PUBLIC LAW 107–243—OCT. 16, 2002 116 STAT. 1499

and security in the region, by refusing to release, repatriate,
or account for non-Iraqi citizens wrongfully detained by Iraq,
including an American serviceman, and by failing to return prop-
erty wrongfully seized by Iraq from Kuwait;
Whereas the current Iraqi regime has demonstrated its capability
and willingness to use weapons of mass destruction against other
nations and its own people;
Whereas the current Iraqi regime has demonstrated its continuing
hostility toward, and willingness to attack, the United States,
including by attempting in 1993 to assassinate former President
Bush and by firing on many thousands of occasions on United
States and Coalition Armed Forces engaged in enforcing the
resolutions of the United Nations Security Council;
Whereas members of al Qaida, an organization bearing responsi-
bility for attacks on the United States, its citizens, and interests,
including the attacks that occurred on September 11, 2001, are
known to be in Iraq;
Whereas Iraq continues to aid and harbor other international ter-
rorist organizations, including organizations that threaten the
lives and safety of United States citizens;
Whereas the attacks on the United States of September 11, 2001,
underscored the gravity of the threat posed by the acquisition
of weapons of mass destruction by international terrorist
organizations;
Whereas Iraq’s demonstrated capability and willingness to use
weapons of mass destruction, the risk that the current Iraqi
regime will either employ those weapons to launch a surprise
attack against the United States or its Armed Forces or provide
them to international terrorists who would do so, and the extreme
magnitude of harm that would result to the United States and
its citizens from such an attack, combine to justify action by
the United States to defend itself;
Whereas United Nations Security Council Resolution 678 (1990)
authorizes the use of all necessary means to enforce United
Nations Security Council Resolution 660 (1990) and subsequent
relevant resolutions and to compel Iraq to cease certain activities
that threaten international peace and security, including the
development of weapons of mass destruction and refusal or
obstruction of United Nations weapons inspections in violation
of United Nations Security Council Resolution 687 (1991), repres-
sion of its civilian population in violation of United Nations
Security Council Resolution 688 (1991), and threatening its neigh-
bors or United Nations operations in Iraq in violation of United
Nations Security Council Resolution 949 (1994);
Whereas in the Authorization for Use of Military Force Against
Iraq Resolution (Public Law 102–1), Congress has authorized
the President ‘‘to use United States Armed Forces pursuant to
United Nations Security Council Resolution 678 (1990) in order
to achieve implementation of Security Council Resolution 660,
661, 662, 664, 665, 666, 667, 669, 670, 674, and 677’’;
Whereas in December 1991, Congress expressed its sense that
it ‘‘supports the use of all necessary means to achieve the goals
of United Nations Security Council Resolution 687 as being con-
sistent with the Authorization of Use of Military Force Against

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 116 STAT. 1500 PUBLIC LAW 107–243—OCT. 16, 2002

Iraq Resolution (Public Law 102–1),’’ that Iraq’s repression of
its civilian population violates United Nations Security Council
Resolution 688 and ‘‘constitutes a continuing threat to the peace,
security, and stability of the Persian Gulf region,’’ and that Con-
gress, ‘‘supports the use of all necessary means to achieve the
goals of United Nations Security Council Resolution 688’’;
Whereas the Iraq Liberation Act of 1998 (Public Law 105–338)
expressed the sense of Congress that it should be the policy
of the United States to support efforts to remove from power
the current Iraqi regime and promote the emergence of a demo-
cratic government to replace that regime;
Whereas on September 12, 2002, President Bush committed the
United States to ‘‘work with the United Nations Security Council
to meet our common challenge’’ posed by Iraq and to ‘‘work
for the necessary resolutions,’’ while also making clear that ‘‘the
Security Council resolutions will be enforced, and the just
demands of peace and security will be met, or action will be
unavoidable’’;
Whereas the United States is determined to prosecute the war
on terrorism and Iraq’s ongoing support for international terrorist
groups combined with its development of weapons of mass
destruction in direct violation of its obligations under the 1991
cease-fire and other United Nations Security Council resolutions
make clear that it is in the national security interests of the
United States and in furtherance of the war on terrorism that
all relevant United Nations Security Council resolutions be
enforced, including through the use of force if necessary;
Whereas Congress has taken steps to pursue vigorously the war
on terrorism through the provision of authorities and funding
requested by the President to take the necessary actions against
international terrorists and terrorist organizations, including
those nations, organizations, or persons who planned, authorized,
committed, or aided the terrorist attacks that occurred on Sep-
tember 11, 2001, or harbored such persons or organizations;
Whereas the President and Congress are determined to continue
to take all appropriate actions against international terrorists
and terrorist organizations, including those nations, organiza-
tions, or persons who planned, authorized, committed, or aided
the terrorist attacks that occurred on September 11, 2001, or
harbored such persons or organizations;
Whereas the President has authority under the Constitution to
take action in order to deter and prevent acts of international
terrorism against the United States, as Congress recognized in
the joint resolution on Authorization for Use of Military Force
(Public Law 107–40); and
Whereas it is in the national security interests of the United States
to restore international peace and security to the Persian Gulf
region: Now, therefore, be it
Resolved by the Senate and House of Representatives of the
Authorization for United States of America in Congress assembled,
Use of Military
Force Against SECTION 1. SHORT TITLE.
Iraq Resolution
of 2002. This joint resolution may be cited as the ‘‘Authorization for
50 USC 1541 Use of Military Force Against Iraq Resolution of 2002’’.
note.

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 PUBLIC LAW 107–243—OCT. 16, 2002 116 STAT. 1501
SEC. 2. SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS.
The Congress of the United States supports the efforts by
the President to—
(1) strictly enforce through the United Nations Security
Council all relevant Security Council resolutions regarding Iraq
and encourages him in those efforts; and
(2) obtain prompt and decisive action by the Security
Council to ensure that Iraq abandons its strategy of delay,
evasion and noncompliance and promptly and strictly complies
with all relevant Security Council resolutions regarding Iraq.
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION.—The President is authorized to use the
Armed Forces of the United States as he determines to be necessary
and appropriate in order to—
(1) defend the national security of the United States against
the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council
resolutions regarding Iraq.
(b) PRESIDENTIAL DETERMINATION.—In connection with the
exercise of the authority granted in subsection (a) to use force
the President shall, prior to such exercise or as soon thereafter
as may be feasible, but no later than 48 hours after exercising
such authority, make available to the Speaker of the House of
Representatives and the President pro tempore of the Senate his
determination that—
(1) reliance by the United States on further diplomatic
or other peaceful means alone either (A) will not adequately
protect the national security of the United States against the
continuing threat posed by Iraq or (B) is not likely to lead
to enforcement of all relevant United Nations Security Council
resolutions regarding Iraq; and
(2) acting pursuant to this joint resolution is consistent
with the United States and other countries continuing to take
the necessary actions against international terrorist and ter-
rorist organizations, including those nations, organizations, or
persons who planned, authorized, committed or aided the ter-
rorist attacks that occurred on September 11, 2001.
(c) WAR POWERS RESOLUTION REQUIREMENTS.—
(1) SPECIFIC STATUTORY AUTHORIZATION.—Consistent with
section 8(a)(1) of the War Powers Resolution, the Congress
declares that this section is intended to constitute specific statu-
tory authorization within the meaning of section 5(b) of the
War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS.—Nothing in
this joint resolution supersedes any requirement of the War
Powers Resolution.
SEC. 4. REPORTS TO CONGRESS.
(a) REPORTS.—The President shall, at least once every 60 days, President.
submit to the Congress a report on matters relevant to this joint
resolution, including actions taken pursuant to the exercise of
authority granted in section 3 and the status of planning for efforts
that are expected to be required after such actions are completed,
including those actions described in section 7 of the Iraq Liberation
Act of 1998 (Public Law 105–338).

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 116 STAT. 1502 PUBLIC LAW 107–243—OCT. 16, 2002

(b) SINGLE CONSOLIDATED REPORT.—To the extent that the
submission of any report described in subsection (a) coincides with
the submission of any other report on matters relevant to this
joint resolution otherwise required to be submitted to Congress
pursuant to the reporting requirements of the War Powers Resolu-
tion (Public Law 93–148), all such reports may be submitted as
a single consolidated report to the Congress.
(c) RULE OF CONSTRUCTION.—To the extent that the information
required by section 3 of the Authorization for Use of Military
Force Against Iraq Resolution (Public Law 102–1) is included in
the report required by this section, such report shall be considered
as meeting the requirements of section 3 of such resolution.

Approved October 16, 2002.

LEGISLATIVE HISTORY—H.J. Res. 114 (S.J. Res. 45) (S.J. Res. 46):
HOUSE REPORTS: No. 107–721 (Comm. on International Relations).
CONGRESSIONAL RECORD, Vol. 148 (2002):
Oct. 8, 9, considered in House.
Oct. 10, considered and passed House and Senate.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 38 (2002):
Oct. 16, Presidential remarks and statement.

Æ

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