How is Kucinich v. Obama Different than Campbell v. Clinton?

In a federal complaint filed today, a bipartisan group of Congressmen (led by Representative Dennis Kucinich) seeks “injunctive and declaratory relief to protect the Plaintiffs and the country from a stated policy of Defendant Barack Obama, President of the United States, whereby a president may unilaterally go to war in Libya and other countries without the declaration of war from Congress required by Article I, Section 8, Clause II of the U.S. Constitution.” The plaintiffs allege that the military action in Libya violates both the Constitution and the War Powers Resolution. They also contend that the administration has illegally funded the war by using monies appropriated for other purposes in violation of the Anti-Deficiency Act.

Leaving aside the merits, it is hard to see how the plaintiffs can hope to surmount the judicial barriers erected to keep such claims from being heard in court. In Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), the court held that a group of Members of Congress (including Kucinich) lacked standing to bring virtually identical constitutional and statutory claims in connection with President Clinton’s military campaign in Yugoslavia. Relying on Raines v. Byrd, 521 U.S. 811 (1997), the court held that the plaintiffs could not seek judicial relief because there were legislative remedies available and their injury was caused by Congress’s failure to adopt those remedies.

In paragraph 165 of today’s complaint, the plaintiffs “acknowledge that standing of members has been curtailed in prior judicial opinions, but they believe that these decisions allow for an exception for these claims and that members of Congress must have the ability to seek judicial review in this context.”

They do not explain what “exception” they are relying on, but the language in Campbell is directly applicable to the current situation:

In this case, Congress certainly could have passed a law forbidding the use of U.S. forces in the Yugoslav campaign; indeed, there was a measure–albeit only a concurrent resolution–introduced to require the President to withdraw U.S. troops. Unfortunately, however, for those congressmen who, like appellants, desired an end to U.S. involvement in Yugoslavia, this measure was defeated by a 139 to 290 vote. Of course, Congress always retains appropriations authority and could have cut off funds for the American role in the conflict. Again there was an effort to do so but it failed; appropriations were authorized. And there always remains the possibility of impeachment should a President act in disregard of Congress’ authority on these matters.

Appellants’ constitutional claim stands on no firmer footing. Appellants argue that the War Powers Clause of the Constitution proscribes a President from using military force except as is necessary to repel a sudden attack. But they also argue that the WPR “implements” or channels congressional authority under the Constitution. It may well be then that since we have determined that appellants lack standing to enforce the WPR there is nothing left of their constitutional claim. Assuming, however, that appellants’ constitutional claim should be considered separately, the same logic dictates they do not have standing to bring such a challenge. That is to say Congress has a broad range of legislative authority it can use to stop a President’s war making, see generally John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 Cal. L. Rev. 167 (1996), and therefore under Raines congressmen may not challenge the President’s war-making powers in federal court.

As in Campbell, the plaintiffs challenging the Libyan operation have legislative remedies available—Congress could pass a resolution requiring withdrawal, cut off appropriations or even begin impeachment proceedings. As of yet, however, the House alone has passed a resolution forbidding ground troops in Libya, but not otherwise objecting to the operation. I just don’t see how the plaintiffs can distinguish their case from Campbell.

Neither does Jack Goldsmith.






Not a Creature has Standing, Not Even the House?

When Attorney General Holder announced that the Department of Justice (DOJ) would no longer defend the constitutionality of the Defense of Marriage Act (DOMA) in cases where it was being challenged, he committed to “providing Congress a full and fair opportunity to participate in the litigation in those cases.” In response, the Bipartisan Legal Advisory Group (BLAG) of the House of Representatives is seeking to intervene in a number of such cases, including Windsor v. United States, pending in the Southern District of New York.

DOJ does not object to BLAG’s intervention in Windsor, but it contends that the House’s interest in DOMA’s constitutionality is nothing more than a “generalized grievance” that is inadequate to give it standing. Accordingly, it proposes that BLAG be permitted to intervene only “to present arguments in support of the constitutionality of Section 3 of DOMA, consistent with [DOJ’s] role in this case as counsel for the United States.”

Under DOJ’s theory, it would retain exclusive control of the defense of the case, including control over procedural issues such as filing motions, making objections and appealing adverse decisions. DOJ promises that it will “file appropriate motions, purely as a procedural matter, to ensure that this Court can consider arguments on both sides of the constitutional issue and that the Court has jurisdiction to enter judgment on the basis of those arguments.” Notably, however, DOJ does not promise that it will necessarily appeal a judgment against the constitutionality of DOMA.

BLAG objects to DOJ’s position. It argues that DOJ is inappropriately attempting to relegate it to the status of a glorified amicus and “asserting a right to act as a gatekeeper for the House’s efforts to defend a validly enacted statute that the Department itself refuses to defend.” Accepting DOJ’s position would give it the ability to hamstring the House’s defense of DOMA, or any federal statute, thus effectively giving it “an extra-constitutional post-enactment veto over federal statutes to which it objects.”

Moreover, BLAG argues that DOJ’s position is inconsistent with INS v. Chadha, 462 U.S. 919, 940 (1983) , where the Court stated that “Congress is the proper party to defend the validity of a statute when an agency of the government, as a defendant charged with enforcing the statute, agrees with plaintiffs that the statute is inapplicable or unconstitutional.” Chadha relied on this proposition to support its holding that there was a justiciable case or controversy, a conclusion that would make no sense unless Congress was considered to be a true party with independent standing.

BLAG’s reading of Chadha seems to be the more persuasive one. Therefore, BLAG should have standing so long as one makes the assumption that it is the same entity, for purposes of the standing analysis, as the House itself.  This assumption is of yet unexamined, but may not remain so.