Dellums v. Bush - A Congressional Duty

U.S. District Judge Harold H. Greene disagreed with most of the government's arguments. 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 Dellums had 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 a declaration 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 the president, 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.