As President Clinton ordered U.S. military forces to begin a series of air strikes with NATO allies in the Federal Republic of Yugoslavia on March 24, 1999, one of the most serious questions in modern Constitutional jurisprudence, the vesting in Congress of the War Power, again became an issue between the Legislative and Executive branches. Although Article I, Section 8, clause 11 of the Constitution gives Congress the power to “declare War,” Presidents have repeatedly committed U.S. armed forces to overseas military action since the Viet Nam War, including in Grenada, Panama, Central America and the Persian Gulf. Each President has asserted power to do so as “Commander in Chief” of the armed forces, without need for Congressional authorization.
CCR has represented members of Congress in litigation seeking to clarify the constitutional balance on number of previous occasions.
Members of the House of Representatives, led by Rep. Tom Campbell, a former professor at Stanford Law School, asked CCR to represent them following separate votes in the House on April 28, 1999. One vote rejected a resolution authorizing the President to conduct military air operations and missile strikes in cooperation with NATO against the Federal Republic of Yugoslavia, and the other rejected a declaration of war between the United States and the Federal Republic of Yugoslavia. Following the votes, CCR filed a lawsuit in United States District Court for the District of Columbia representing House members seeking a declaratory judgment that the President lacked authority to order. U.S. Armed Forces to take offensive military measures without congressional authorization pursuant to the Constitution’s War Powers Clause and the War Powers Resolution.
In addition, for the first time since the enactment of the War Powers Resolution, a statute passed by Congress over President Nixon’s veto in 1973 to prevent the kinds of “undeclared wars” which took place in Viet Nam and Korea, hostilities involving the U.S. military had continued for more than 60 days as of May 25th. This triggered a termination provision whereby the War Powers Resolution required the President to withdraw U.S. forces because Congress had not authorized the military operations within 60 days of the commencement of hostilities .
CCR filed a motion for summary judgment in behalf of the twenty-six Congressional plaintiffs, and the President responded by moving to dismiss the case. On June 8, 1999, Judge Paul Fried man of U.S. District Court dismissed the case, ruling that the U.S. Supreme Court had narrowed and eliminated the standing of members of Congress to bring court cases in a recent case involving the line-item veto.
The United States Court of Appeals for the District of Columbia granted CCR’s request for an expedited appeal of the dismissal. At press-time the appeals court is reviewing the lower court’s ruling to determine whether these Congressional plaintiffs fall within an exception where the Supreme Court preserved legislative standing. CCR maintains the Members of Congress who brought suit fall within the exception because they constitute a sufficient number of House members who voted to defeat and did defeat the specific statutory and congressional authorization required for the President to engage in hostilities in Yugoslavia, yet the President ignored their action and continued offensive military activity, depriving them of the result of their vote. The appeals court’s ruling is expected in the fall.
Jules Lobel, Michael Ratner, Franklin Siegel, and Jennifer M. Green with James Klimaski, Washington, D.C., H. Lee Halterman, Oakland, CA and Joel E. Starr, Washington D.C