Plaintiff
Ronald V. Dellums, et al.
Defendant
George Bush, President of the United States
Plaintiff's Claim
That the president of the United States violated Article I of the U.S. Constitution and the 1973 War Powers Resolution by neither providing Congress withnotice nor obtaining a congressional declaration of war before initiating a military offensive against Iraq.
Judge
Harold H. Greene
Place
Washington, D.C.
Date of Decision
13 December 1990
Decision
Denied Dellums' request for an injunction against presidential military action by ruling that the dispute over massive U.S. troop build-up in the PersianGulf region was not ready for judicial attention.
Significance
The ruling perpetuated the courts' position in avoiding disputes between members of Congress and the president over commitment of U.S. military forces abroad. The district court held that it would not assume Congress' role in resolving political questions involving foreign policy. In a string of undeclaredwars through the last half of the twentieth century from Korea to Bosnia, debate raged over the war powers of the president and Congress, and the role, ifany, of the courts. Many congressional members contended that only Congress,through the declaration of war, could commit forces. Others insisted that the president, as commander-in-chief, was the logical initiator, with Congressserving as a check primarily through funding controls.
The framers of the Constitution, not trusting a president to hold sole powerto commit the nation to war, divided war powers between the executive and legislative branches. Article II names the president commander-in-chief of the armed forces, giving him power to conduct war. Article I gives Congress the power to "raise and support armies" including funding support, and to "declarewar." The Constitution does not address what happens if Congress votes not todeclare war, but hostilities proceed. During the early period of the nation,the Court strongly restricted presidential war powers. In Ex parte Milligan (1866) the Court limited President Andrew Johnson's efforts to try civilians in military courts. Congress declared war on five occasions: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World WarII.
With the beginning of the Cold War in 1946, a common perception took hold that the constitutional separation of war powers established in the eighteenth century no longer applied in a world of imminent nuclear war danger. The president, many argued, needed greater leeway to act quickly and decisively in deterring threats arising from the world-wide spread of Communism. Beginning with the Korean War, the presidents increasingly sent military forces abroad despite lacking clear congressional support. When hearing cases involving foreign policy issues, particularly on war, the Court often relied on the "political question doctrine." As provided in Baker v. Carr (1962), the doctrine stated that such issues are often purely political in nature and must be resolved by the two political branches of government.
The emergence of the Vietnam War in the 1960s created particularly antagonistic relations between the president and members of Congress. The federal courts either refused to hear cases involving constitutional challenges to the wars or readily ruled in favor of the president. By the early 1970s, congressional support for the war faded further and funding was greatly diminished. A federal appeals court ruled in Mitchell v. Laird (1973) that hostilitiesin Indochina constituted a war without congressional declaration. It also concluded that President Richard Nixon had no recourse but "to bring the war toan end." In an attempt to avoid future legal conflicts between Congress andthe president over war powers, Congress passed the War Powers Resolution latein 1973 over Nixon's veto. The law stated that in the absence of a declaration of war the president must report to Congress within 48 hours of introducing military forces into hostilities and must withdraw the troops within 60 days unless Congress approves an extension or demands faster withdrawal.
The resolution brought little relief, as Congress and presidents continued tobattle over a variety of foreign policy issues. Importantly, the U.S. Supreme Court ruled in Goldwater v. Carter (1979) that "a dispute between Congress and the president is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority." Justice Powell wrote that the
Therefore, the Court could not rule on that case because Congress had not voted on the matter. In Lowery v. Reagan (1987) a federal court held thatit could not rule on a dispute between 110 members of Congress and the president concerning use of U.S. military ships in the Persian Gulf to escort Kuwaiti oil tankers during the Iran-Iraq war. The Court considered the dispute apolitical fight within Congress itself regarding application of the War Powers Resolution.
Iraqi-U.S. Relations
Following a bloody war with Iran in the early 1980s, Iraq turned to the United States for food and trade to revive its devastated economy. Iraqi trade grew significantly throughout the 1980s despite some congressional opposition. Meanwhile disputes increased between Iraq and Kuwait over war debts, oil policies, and, most importantly, location of a shared boundary. On 2 August 1990,Iraq abruptly invaded Kuwait, leading President George Bush to quickly send U.S. military forces to the Persian Gulf region to stabilize the situation. Over 230,000 U.S. troops were in the region by November. Bush then unexpectedlyannounced a substantial increase in military presence for the purpose of having an "offensive military option" to force Iraqi's retreat from Kuwait. He received support from the United Nations Security Council to use force if necessary. Though Congress had expressed support for presidential actions in thePersian Gulf earlier in the fall, Bush did not ask Congress for a declarationof war prior to the substantial build-up that was destined to reach 380,000troops. In reaction, on 19 November, 53 members of the House of Representatives, including congressman Ronald V. Dellums and one U.S. Senator, filed suitin U.S. District Court for the District of Columbia requesting an injunctionagainst further use of military force until Congress could take action.
Dellums argued Bush had violated the War Powers Resolution and also denied Congress their constitutional right under the War Declaration Clause to debateand vote on the imminent military action. In response, the government arguedthe "harmonization" of war powers between the two branches was a political, not legal, issue for which the courts had no authority to become involved. Given the "political question doctrine" and lack of established standards, the courts possessed little means to decide if the "offensive military attack" wasan act of war. The government also argued the threat of military action wasnot imminent, only a possibility, and that Bush might still ask for a declaration yet. Lastly, the government contended a congressional member could not challenge the constitutionality of an action simply "because he failed to persuade a majority of his colleagues of the wisdom of his views."
A Congressional Duty
U.S. District Judge Harold H. Greene disagreed with most of the government'sarguments. As to whether he could judge what constituted a war, Greene in this instance found the military build-up too vast to pose anything less than war requiring "congressional approval . . . if Congress desires to become involved." Disagreeing with the argument that courts could not rule on issues relating to foreign affairs, Greene found that many court decisions touch on foreign affairs to varying degrees. Greene also found Dellums had standing as an"injured" party due to the obvious "imminent danger of hostilities" and his interest in protecting his constitutional right to vote. Greene found Dellumshad no other practical means available, such as a "joint resolution counselling the President to refrain from attacking Iraq," due to the lack of time available and little effect a resolution would likely have.
The critical issue identified by Greene was whether or not everything had been done beforehand to make this case ready for a final resolution. In this instance, Greene pointed out, "No one knows the position of the Legislative Branch on the issue of war or peace with Iraq." Therefore, action by the court "would be both premature and presumptuous" to offer a decision, particularly when involving "such sensitive issues as . . . military and foreign affairs." Congress, as a body, had not even indicated it wanted to debate or consider adeclaration of war. Consequently, as the U.S. Supreme Court had ruled in Goldwater, "there must be an actual conflict between the parties." That is, it must be at least the majority of the legislative branch challenging thepresident, not just "about ten percent of its membership." In conclusion, Greene ruled the case was not yet ready for judicial action and declined to issue an injunction.
Impact
In a companion case before the same district court, a National Guard officerchallenged the president's constitutional authority to assign him to the Persian Gulf without Congress declaring war. A different judge more forcefully applied the political question doctrine in Ange v. Bush (1990) by rulingthe court had no legal authority to settle the dispute.
Following the two district court decisions, Bush requested a resolution fromCongress supporting any action necessary to push Iraq out of Kuwait. Bush insisted he was not constitutionally compelled to seek it. On 12 January 1991, Congress passed such a resolution. Several days later a missile and air assault began against targets in Iraq and on 24 February a massive ground offensivebegan, chasing Iraqi forces into Iraq. Four days later, Iraq announced it would comply with U.N. demands and Bush declared a cease-fire. However, hostilities and threats persisted with Iraq through the 1990s. Following an assassination attempt on Bush while visiting the Middle East in spring of 1993, President Bill Clinton launched a missile assault on Iraq. Dellums again was an opponent to the presidential action.
Later, Clinton dispatched a U.S. military force to war-torn Bosnia and Hercegovina with eventual deployment of 20,000 troops by 1996. Like Bush in 1990, Clinton did not seek a declaration of war from Congress, relying instead on his constitutional powers as commander-in-chief and authority to conduct foreign relations. Clinton, like Bush, did ask for an expression of congressional support but did not consider it necessary. Congress responded with funding, but did not pass a support resolution.
The decision in Dellums continued the trend established shortly afterinception of the Cold War, with courts yielding to presidential actions in cases of foreign hostile actions. The presidents have consistently considered the 1973 War Powers Resolution unconstitutional as no president had given Congress the required notice. The courts have similarly declined to require the president to conform. The three branches fell into a behavior pattern. The president determined when and where to wage war, Congress approved such decisions through resolutions and funding bills, and the judicial branch generally stayed out of war powers disputes.
The constitutional delegation of war powers has long been debated. Some, likeDellums, insisted that the War Declaration Clause gave exclusive authority to Congress to commit troops to foreign soil. Others believed that war declaration was more to satisfy international law standards and enact wartime measures on the home front. Congress could most effectively stop hostilities by simply withholding funds, or even impeaching the president. Some believed that the framers of the Constitution intended to guard against having war decisionsmade by a single person who well might gain personally from engaging in war.Presidents Nixon, Reagan, Bush, and Clinton were accused of using foreign wars to gain political popularity.
History has shown that cooperation between the branches is necessary to wagea successful war. The Constitution permits sufficient flexibility in the decision-making process to allow for many different ways to fight a war.
Related Cases
Ronald V. Dellums, et al.
Defendant
George Bush, President of the United States
Plaintiff's Claim
That the president of the United States violated Article I of the U.S. Constitution and the 1973 War Powers Resolution by neither providing Congress withnotice nor obtaining a congressional declaration of war before initiating a military offensive against Iraq.
Judge
Harold H. Greene
Place
Washington, D.C.
Date of Decision
13 December 1990
Decision
Denied Dellums' request for an injunction against presidential military action by ruling that the dispute over massive U.S. troop build-up in the PersianGulf region was not ready for judicial attention.
Significance
The ruling perpetuated the courts' position in avoiding disputes between members of Congress and the president over commitment of U.S. military forces abroad. The district court held that it would not assume Congress' role in resolving political questions involving foreign policy. In a string of undeclaredwars through the last half of the twentieth century from Korea to Bosnia, debate raged over the war powers of the president and Congress, and the role, ifany, of the courts. Many congressional members contended that only Congress,through the declaration of war, could commit forces. Others insisted that the president, as commander-in-chief, was the logical initiator, with Congressserving as a check primarily through funding controls.
The framers of the Constitution, not trusting a president to hold sole powerto commit the nation to war, divided war powers between the executive and legislative branches. Article II names the president commander-in-chief of the armed forces, giving him power to conduct war. Article I gives Congress the power to "raise and support armies" including funding support, and to "declarewar." The Constitution does not address what happens if Congress votes not todeclare war, but hostilities proceed. During the early period of the nation,the Court strongly restricted presidential war powers. In Ex parte Milligan (1866) the Court limited President Andrew Johnson's efforts to try civilians in military courts. Congress declared war on five occasions: the War of 1812, the Mexican War, the Spanish-American War, World War I, and World WarII.
With the beginning of the Cold War in 1946, a common perception took hold that the constitutional separation of war powers established in the eighteenth century no longer applied in a world of imminent nuclear war danger. The president, many argued, needed greater leeway to act quickly and decisively in deterring threats arising from the world-wide spread of Communism. Beginning with the Korean War, the presidents increasingly sent military forces abroad despite lacking clear congressional support. When hearing cases involving foreign policy issues, particularly on war, the Court often relied on the "political question doctrine." As provided in Baker v. Carr (1962), the doctrine stated that such issues are often purely political in nature and must be resolved by the two political branches of government.
The emergence of the Vietnam War in the 1960s created particularly antagonistic relations between the president and members of Congress. The federal courts either refused to hear cases involving constitutional challenges to the wars or readily ruled in favor of the president. By the early 1970s, congressional support for the war faded further and funding was greatly diminished. A federal appeals court ruled in Mitchell v. Laird (1973) that hostilitiesin Indochina constituted a war without congressional declaration. It also concluded that President Richard Nixon had no recourse but "to bring the war toan end." In an attempt to avoid future legal conflicts between Congress andthe president over war powers, Congress passed the War Powers Resolution latein 1973 over Nixon's veto. The law stated that in the absence of a declaration of war the president must report to Congress within 48 hours of introducing military forces into hostilities and must withdraw the troops within 60 days unless Congress approves an extension or demands faster withdrawal.
The resolution brought little relief, as Congress and presidents continued tobattle over a variety of foreign policy issues. Importantly, the U.S. Supreme Court ruled in Goldwater v. Carter (1979) that "a dispute between Congress and the president is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority." Justice Powell wrote that the
Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise we would encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict . . . If the Congress chooses not to confront the President, it is not our task to do so.
Therefore, the Court could not rule on that case because Congress had not voted on the matter. In Lowery v. Reagan (1987) a federal court held thatit could not rule on a dispute between 110 members of Congress and the president concerning use of U.S. military ships in the Persian Gulf to escort Kuwaiti oil tankers during the Iran-Iraq war. The Court considered the dispute apolitical fight within Congress itself regarding application of the War Powers Resolution.
Iraqi-U.S. Relations
Following a bloody war with Iran in the early 1980s, Iraq turned to the United States for food and trade to revive its devastated economy. Iraqi trade grew significantly throughout the 1980s despite some congressional opposition. Meanwhile disputes increased between Iraq and Kuwait over war debts, oil policies, and, most importantly, location of a shared boundary. On 2 August 1990,Iraq abruptly invaded Kuwait, leading President George Bush to quickly send U.S. military forces to the Persian Gulf region to stabilize the situation. Over 230,000 U.S. troops were in the region by November. Bush then unexpectedlyannounced a substantial increase in military presence for the purpose of having an "offensive military option" to force Iraqi's retreat from Kuwait. He received support from the United Nations Security Council to use force if necessary. Though Congress had expressed support for presidential actions in thePersian Gulf earlier in the fall, Bush did not ask Congress for a declarationof war prior to the substantial build-up that was destined to reach 380,000troops. In reaction, on 19 November, 53 members of the House of Representatives, including congressman Ronald V. Dellums and one U.S. Senator, filed suitin U.S. District Court for the District of Columbia requesting an injunctionagainst further use of military force until Congress could take action.
Dellums argued Bush had violated the War Powers Resolution and also denied Congress their constitutional right under the War Declaration Clause to debateand vote on the imminent military action. In response, the government arguedthe "harmonization" of war powers between the two branches was a political, not legal, issue for which the courts had no authority to become involved. Given the "political question doctrine" and lack of established standards, the courts possessed little means to decide if the "offensive military attack" wasan act of war. The government also argued the threat of military action wasnot imminent, only a possibility, and that Bush might still ask for a declaration yet. Lastly, the government contended a congressional member could not challenge the constitutionality of an action simply "because he failed to persuade a majority of his colleagues of the wisdom of his views."
A Congressional Duty
U.S. District Judge Harold H. Greene disagreed with most of the government'sarguments. As to whether he could judge what constituted a war, Greene in this instance found the military build-up too vast to pose anything less than war requiring "congressional approval . . . if Congress desires to become involved." Disagreeing with the argument that courts could not rule on issues relating to foreign affairs, Greene found that many court decisions touch on foreign affairs to varying degrees. Greene also found Dellums had standing as an"injured" party due to the obvious "imminent danger of hostilities" and his interest in protecting his constitutional right to vote. Greene found Dellumshad no other practical means available, such as a "joint resolution counselling the President to refrain from attacking Iraq," due to the lack of time available and little effect a resolution would likely have.
The critical issue identified by Greene was whether or not everything had been done beforehand to make this case ready for a final resolution. In this instance, Greene pointed out, "No one knows the position of the Legislative Branch on the issue of war or peace with Iraq." Therefore, action by the court "would be both premature and presumptuous" to offer a decision, particularly when involving "such sensitive issues as . . . military and foreign affairs." Congress, as a body, had not even indicated it wanted to debate or consider adeclaration of war. Consequently, as the U.S. Supreme Court had ruled in Goldwater, "there must be an actual conflict between the parties." That is, it must be at least the majority of the legislative branch challenging thepresident, not just "about ten percent of its membership." In conclusion, Greene ruled the case was not yet ready for judicial action and declined to issue an injunction.
Impact
In a companion case before the same district court, a National Guard officerchallenged the president's constitutional authority to assign him to the Persian Gulf without Congress declaring war. A different judge more forcefully applied the political question doctrine in Ange v. Bush (1990) by rulingthe court had no legal authority to settle the dispute.
Following the two district court decisions, Bush requested a resolution fromCongress supporting any action necessary to push Iraq out of Kuwait. Bush insisted he was not constitutionally compelled to seek it. On 12 January 1991, Congress passed such a resolution. Several days later a missile and air assault began against targets in Iraq and on 24 February a massive ground offensivebegan, chasing Iraqi forces into Iraq. Four days later, Iraq announced it would comply with U.N. demands and Bush declared a cease-fire. However, hostilities and threats persisted with Iraq through the 1990s. Following an assassination attempt on Bush while visiting the Middle East in spring of 1993, President Bill Clinton launched a missile assault on Iraq. Dellums again was an opponent to the presidential action.
Later, Clinton dispatched a U.S. military force to war-torn Bosnia and Hercegovina with eventual deployment of 20,000 troops by 1996. Like Bush in 1990, Clinton did not seek a declaration of war from Congress, relying instead on his constitutional powers as commander-in-chief and authority to conduct foreign relations. Clinton, like Bush, did ask for an expression of congressional support but did not consider it necessary. Congress responded with funding, but did not pass a support resolution.
The decision in Dellums continued the trend established shortly afterinception of the Cold War, with courts yielding to presidential actions in cases of foreign hostile actions. The presidents have consistently considered the 1973 War Powers Resolution unconstitutional as no president had given Congress the required notice. The courts have similarly declined to require the president to conform. The three branches fell into a behavior pattern. The president determined when and where to wage war, Congress approved such decisions through resolutions and funding bills, and the judicial branch generally stayed out of war powers disputes.
The constitutional delegation of war powers has long been debated. Some, likeDellums, insisted that the War Declaration Clause gave exclusive authority to Congress to commit troops to foreign soil. Others believed that war declaration was more to satisfy international law standards and enact wartime measures on the home front. Congress could most effectively stop hostilities by simply withholding funds, or even impeaching the president. Some believed that the framers of the Constitution intended to guard against having war decisionsmade by a single person who well might gain personally from engaging in war.Presidents Nixon, Reagan, Bush, and Clinton were accused of using foreign wars to gain political popularity.
History has shown that cooperation between the branches is necessary to wagea successful war. The Constitution permits sufficient flexibility in the decision-making process to allow for many different ways to fight a war.
Related Cases
- Mitchell v. Laird, 488 F.2d 611 (1973).
- Goldwater v. Carter, 444 U.S. 996 (1979).
- Lowry v. Reagan, 676 F. Supp. 333 (1987).
- Ange v. Bush, 752 F. Supp. 510 (1990).
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