This past spring, CCR filed a petition asking the U.S. Supreme Court to review the dismissal of a lawsuit filed by 31 members of the U.S. House of Representatives. The members had sought a declaration that President Clinton violated the War Powers Clause of the Constitution and the Vietnam-era War Powers Resolution by engaging United States Armed Forces in offensive military attack with NATO forces in Kosovo in 1999 without obtaining a declaration of war or authorization of Congress.
The bipartisan group, led by Representative Tom Campbell (R-Calf.), a former Stanford Law School Professor, sued after 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.
Representative Campbell and the other House members sued after Congress, on April 28, 1999, defeated both a resolution to authorize the President to conduct military operations and missile strikes in cooperation with NATO against the Federal Republic of Yugoslavia, and a declaration of war.
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 .
Ruling that members of Congress lacked standing to sue, the United States District Court for the District of Columbia dismissed the lawsuit in June 1999. The lower court ruled that a recent U.S. Supreme Court decision involving the line-item veto precluded legislators from bringing lawsuits. In February 2000 the United States Court of Appeals for the District affirmed the dismissal, but the appeals court majority instead ruled that members of Congress lacked standing primarily because they continued, after the votes, to enjoy ample legislative power to have stopped prosecution of was.
The members of Congress have asked the U.S. Supreme Court preserved in its line-item veto case. The Court indicated that under earlier precedent legislators continue to have standing to sue when their votes have been nullified. The House members assert that nullification took place when Congress defeated both authority to use U.S. forces and a declaration of war, but the President ignored those votes. They further assert that requiring Congress to have to keep trying to rein in unauthorized Presidential war-making is exactly the requirement Congress rejected by enacting the War Powers Resolution.
The Supreme Court will decide whether to hear the case sometime in Fall 2000 or Winter 2001.
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