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MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’
MOTION FOR A PRELIMINARY INJUNCTION

The Plaintiffs, including United States soldiers, parents of United States soldiers, and Members of Congress, seek to enjoin the Defendant President George W. Bush and Defendant Secretary of Defense Donald H. Rumsfeld from launching a military invasion of Iraq, absent a congressional declaration of war.

This case is of enormous and immediate public interest. Article I, § 8 of the United States Constitution states that “Congress shall have Power…[t]o declare War.” The framers of the Constitution included this section to ensure that the awesome power to send this nation into war not be placed with the President but with the elected body of the United States Congress. Congress has not declared war against Iraq. Defendants’ plans for an imminent military invasion of Iraq, absent a congressional declaration of war, demand immediate judicial intervention.

Argument

The Plaintiffs are entitled to a preliminary injunction because they have shown that 1) they are likely to succeed on the merits of their claim; 2) they will suffer irreparable harm in the absence of the requested injunction; 3) the balance of equities favors the grant of an injunction; and 4) the public interest would be served by an injunction. Cablevision of Boston, Inc. v. Public Improvement Comm’n of the City of Boston, 184 F.3d 88, 95 (1st Cir. 1999); Philip Morris, Inc. v. Harshbarger, 159 F.3d 670, 673 (1st Cir. 1998).

I. THE PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS BECAUSE CONGRESS HAS NEITHER DECLARED WAR AGAINST IRAQ NOR TAKEN EQUIVALENT ACTION, AND THE CONSTITUTION REQUIRES SUCH ACTION BEFORE THE PRESIDENT CAN MAKE WAR.

A. The President Lacks Constitutional Authority To Commence War Absent A Congressional Declaration.

The Constitution vests the power to commence war exclusively in Congress. Article I, § 8, cl. 11 states that “Congress shall have Power … [t]o declare War,” and numerous other provisions specifically give Congress the powers necessary to commence a war. See United States Const. art. I, § 8, cl. 1, 11–16; id. § 9, cl. 7; 1 The Works of James Wilson 433 (R. McCloskey ed. 1967) (“[A]ll these are powers naturally connected with the power of declaring war. All these powers, therefore, are vested in Congress.”). Article II, § 2, cl. 1, makes the President “Commander in Chief of the Army and Navy.” This places him at the top of the military hierarchy, but only gives him power to make war once Congress has declared war or taken equivalent action, and then only within the limits Congress prescribes. See Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850) (holding that a congressional declaration of war conferred nothing more than the power of a military commander on the President); Little v. Barreme, 6 U.S. (1 Cranch) 170 (1804) (holding that in an undeclared war, the President’s authority was limited to those acts authorized by Congress); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 8 (1801) (noting that the Constitution vests “[t]he whole powers of war” in Congress); Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800) (Washington, J.) (recognizing Congress’s power to authorize undeclared wars); see also Ex parte Milligan, 71 U.S. (4 Wall.) 2, 139 (1866) (Chase, C.J., concurring) (“Congress has the power not only to raise and support and govern armies but to declare war. … This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief.”)

The framers clearly intended this division of authority. See, e.g., 6 The Writings of James Madison 148 (G. Hunt ed. 1906); The Federalist No. 69, at 448 (Hamilton) (J. Cooke ed., 1982). The original wording of the Declare War Clause gave Congress the power to “make war,” but the framers changed the language to “declare war” for only two reasons. They wanted to make clear that the President, as Commander in Chief, would be responsible for day-to-day conduct of any congressionally authorized war, and that the President could use the armed forces to “repel sudden attacks” without congressional authorization. See 2 The Records of the Federal Convention of 1787, at 318 – 19 (M. Farrand, ed. 1911); Lofgren, War-Making Under the Constitution: The Original Understanding, 82 Yale L. J. 672, 675–83 (1972).

The political branches have respected this division throughout most of the nation’s history. While there have been numerous undeclared wars, common even in the framers’ time, most of them were statutorily authorized by Congress. See S. Rep. No. 797, 90th Cong., 1st Sess. 23 (1967) (“[T]he practice of American Presidents for over a century after independence showed scrupulous respect for the authority of the Congress except in a few instances”); Ely, War and Responsibility: Constitutional Lessons of Vietnam and Its Aftermath 147 n.54 (1993). While in the last half-century presidents have increasingly asserted “inherent” warmaking power, the fact remains that Congress authorized the Vietnam War, the Persian Gulf War, and the War in Afghanistan. See DaCosta v. Laird, 448 F.2d 1368 (1971). In fact, Justice Black, in his opinion for the Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–88 (1952), expressly denied that the “executive power” in Article II, § 1, cl. 1 vested any general warmaking power in the Executive. In any case, the Executive Branch cannot acquire a power that the Constitution expressly gives to Congress, without, at the least, “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned.” Youngstown, 343 U.S. at 610 (Frankfurter, J., concurring). The currently threatened invasion of Iraq contains none of those elements.

The framers’ rationales for dividing the war remain relevant today; if anything they have become more compelling. See generally Ely, War and Responsibility 3–4. First, war was not to be entered into lightly, and thus required “the utmost deliberation, and the successive review of all the councils of the nation.” 2 Justice Story, Commentaries on the Constitution of the United States §§ 1166 (1833). Second, the inclusion of both houses (usually only the Senate participates in foreign affairs decisions) would slow the decisionmaking process down. As James Wilson said: “This system will not hurry us into war; it is calculated to guard against it.” 2 Debates in the Several State Conventions on the Adoption of the Federal Constitution 528 (J. Elliott ed. 1863). Third, the inclusion of the House (“the people’s house”) ensured that the war would have the support of the public at large. Ely, War and Responsibility 3–4. Since the founding, the need to exercise caution in entering war has increased, while the barriers to commencing hostilities have largely crumbled: war has become more destructive; the speed with which the President may deploy troops or launch a strike has increased dramatically; the nation not only has a standing army, but one composed primarily of volunteers; and Congress has more staff and spends more of the year in session than in earlier centuries, and thus can proceed more quickly. See Ely, War and Responsibility 7–9. Congressional deliberation remains a primary safeguard against the “dogs of war.”

Similarly, the constitutional allocation of the war power serves several overarching structural values, all of which have only increased in relevance over time. First, while the Constitution seeks to create an effective national government, it also seeks to preserve individual liberty and local autonomy by limiting the national government’s enumerated powers and dividing those powers among the three branches of government. Apart from popular election, the most obvious distinction between the British monarch and the American President was the latter’s lack of authority to commence war. This difference arose out of a conscious recognition that war tends to shift power from the legislative and judicial branches toward the executive, and from the state governments toward the national government, while it creates an environment more hostile to individual liberty. As the power of the national government and the presidency have grown over the last century, the need to retain the remaining bulwarks against executive and federal aggrandizement and encroachment has increased. Cf., e.g., Alden v. Maine, 527 U.S. 706 (1999); Printz v. United States 521 U.S. 898 (1997); Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996); United States v. Lopez, 514 U.S. 549 (1995); New York v. United States, 505 U.S. 144 (1992). Second, the governmental procedures set out in the Constitution ensure the accountability of government, and the Supreme Court has grounded its enforcement of separation of powers and federalism in this value. See, e.g., New York , 505 U.S. at 168–69, 177, 182–3 (striking down a statutory provision that “commandeered” state legislatures in a way that would allow both federal and state legislators to avoid being held accountable for the choice of location for radioactive waste disposal sites).

In what is probably constitutional law’s most influential statement regarding executive power, Justice Jackson’s Youngstown concurrence stated that:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. …

2. When the President acts in the absence of either a congressional grant or denial of authority, he can only rely upon his independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain.

3. When the President takes measures incompatible with the express or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject.
343 U.S. 579, 635 – 638 (Jackson, J., concurring) (emphasis added). The Supreme Court has frequently endorsed this “pragmatic, flexible view of differentiated governmental power to which we are heir.” Mistretta v. United States, 488 U.S. 361, 381 (1989); see, e.g., Morrison v. Olson, 487 U.S. 654, 694 (1988); Bowsher v. Synar, 478 U.S. 714, 721 (1986); Dames & Moore v. Regan, 453 U.S. 654, 661 (1981); Nixon v. Administrator of General Services, 433 U.S. 425, 443 (1977).

It is thus worth noting the crucial similarities between Youngstown and the case at bar: each involves a president exercising a power that the Constitution assigns to Congress, and seeking to justify his actions through an “inherent executive power” to protect national security. See Youngstown, 343 U.S. at 630–32 (Douglas, J., concurring) (regarding seizure as a legislative power, because under the Takings Clause, United States Const. Am. V, it would require Congress to appropriate money to compensate the owner); id. at 587 (plurality opinion) (“the President's power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker”); 1 Tribe, American Constitutional Law 672–74 (3d ed. 2000). A President’s arrogation of a legislative power as important as war declaration to himself, “at once so conclusive and preclusive[,] must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Youngstown, 343 U.S. at 638 (Jackson, J., concurring). If, on the other hand, the President claims to act pursuant to delegated authority, this court must carefully examine the relevant statutes to determine Congress’s will.

Finally, an equally flourishing line of cases involving separation of powers makes clear that constitutional procedures must be followed closely. See, e.g., Clinton v. City of New York, 524 U.S. 417, 420–21 (1998) (holding that the cancellation procedures in the Line Item Veto of 1996 violated the Presentment Clause, United States Const. art. I, § 7, cl. 2) ; INS v. Chadha, 462 U.S. 919, 957–59 (1983) (holding that the one-House legislative veto provision in the Immigration and Nationality Act violated constitutional presentment and bicameralism requirements). The procedure for making war is similar (in fact identical) to that for passing legislation. The Constitution contemplates that Congress must pass a statute declaring war or at least commencing hostilities, and that, absent a veto that Congress fails to override, the President must command the military’s engagement in hostilities subject to the statute’s restraints. Strict observation of procedures designed to protect liberty is certainly more important in the decision to send thousands of people into danger and possibly death than in Chadha to deport one alien.

B. Congress Has Taken No Action That Would Give The President The Power To Make War With Iraq

No congressional statute, action, or combination of statutes or actions has commenced war with Iraq or given the President the authority to commence such a war. The resolution passed by Congress last October (hereinafter “the October Resolution”) is the closest thing to a congressional commencement of war, but the Resolution’s language, context, and legislative history demand a narrow reading. In particular, it expresses three basic ideas; Congress supports the President’s diplomatic efforts; Congress authorizes the President to use force as necessary to protect American and U.N. troops; and should the Security Council determine that use of force is necessary, Congress will likely supply the constitutionally required declaration of war or equivalent action at that time. This narrow reading is further justified, because a broad reading would render the Resolution unconstitutional, or at least constitutionally insufficient to commence war with Iraq.

1. The October Resolution Does Not Permit the President to Make War With Iraq

Reading the October Resolution in context shows that Congress was merely seeking to support the President in international diplomatic efforts to bring Iraq into compliance with U.N. Security Council resolutions, not to commence hostilities with Iraq. First, nearly two-thirds of the paragraphs in the preamble refer to Iraq’s violations of international law, and how important it is for the United States to work with the international community, subject to the strictures of international law and to consensus within international organizations, to remedy these violations. Second, in § 2, “Support for United States Diplomatic Efforts,” Congress only expresses support for presidential efforts to enforce Security Council resolutions regarding Iraq through the Security Council itself. Nowhere does Congress contemplate action outside of that diplomatic process: there is no support for or discussion of bilateral negotiation between the United States and Iraq, or of the possibility of unilaterally going to war with Iraq.

The Resolution authorizes the President to use United States Armed Forces to “defend the national security of the United States … and [as opposed to “or”] enforce all relevant United Nations Security Council resolutions regarding Iraq.” Pub. L. No. 107-243, § 3(a), 116 Stat. at 1501 (emphasis added). Throughout the preamble, Congress invariably ties U.S. national security and “international peace and security” to one another – they are closely intertwined concerns, both of which Congress seeks to address through a single process of international cooperation. See Pub. L. No. 107-243, preamble para. 23, 116 Stat. at 1500 (“[I]t is in the national security interests of the United States to restore international peace and security to the Persian Gulf region.”); id. paras. 1, 5–6, 19, 116 Stat. at 1498, 1500. Thus, the Resolution authorizes the President to work with the Security Council to implement diplomatic actions, and to determine whether the use of force is likely to be necessary.

It is hardly surprising that the Resolution should fail to contemplate use of force outside of a U.N. coalition, given the international legal context within which the Resolution sets itself. Under the U.N. Charter, to which the United States is a party and under which the U.N. Security Council operates, there are only three justifications for a state to use force against another state: self-defense; defense of another state; and action to protect international peace and security, when authorized by the U.N. Security Council. U.N. Charter, art. 2, para. 4 (requiring all Members to “refrain from the threat or use of force against the territorial integrity or political independence of any state”); id. art. 51 (permitting “individual or collective self-defense if an armed attack occurs against a [Member state], until the Security Council has taken the measures necessary to maintain international peace and security”); id. art. 39–42 (empowering the Security Council to authorize the use of force “to maintain or restore international peace and security,” but only as a last resort). The Resolution refers constantly to Iraq’s violations of international law, particularly in the form of unlawful aggression against other nations and its own population, and to the need to bring Iraq into compliance with the Security Council’s demands, through the efforts of the Security Council. It would be anomalous to condemn Iraq’s failure to comply with the U.N. Charter and with Security Council resolutions passed thereunder, while at the same time authorizing the President himself to act outside of the same international legal framework.

This court need not decide the difficult question whether the U.N. Charter or customary international law would forbid Congress from unilaterally declaring a non-defensive war or from permitting the President to do so; what matters here is that the Resolution orders the President to operate within the Charter’s strictures. Congress has stated that it will adopt the U.N.’s standards as its own.

It is essential to make clear that while the Resolution does support the President’s work within the Security Council, it does not permit the President to attack Iraq, even with U.N. Security Council approval. Such a conditional grant of authority to use force would unconstitutionally delegate Congress’s power to commence war to the President (if not to the United Nations Security Council). See infra. Rather, the grant is best understood as accomplishing two things. It permits the President to respond to Iraqi attacks on American or U.N. troops in the region, and it conveys the sense that should the Security Council advocate the use of force, the Congress would be willing to support that determination, at the time it is made, through the constitutionally required declaration of war or equivalent action.

This structural emphasis on exhausting diplomatic means, using the least amount of force necessary to accomplish U.N. goals, and working within the U.N. framework makes clear that the authorization for the President “to use the Armed Forces … as he determines to be necessary and appropriate” is in fact much narrower than it would seem were the words to be taken out of context. Pub. L. No. 107-243, 116 Stat. at 1501. The same can be said for the declaration that the Resolution “constitute[s] specific statutory authorization” under the War Powers Resolution, and the contemplation that after the use of force, planning for Iraq’s transition to democracy might be necessary under the Iraq Liberation Act of 1998. Pub. L. No. 107-243, §§ 3(c)(1) & 4(a), 116 Stat. at 1501. These provisions must be understood as expressing Congress’s sense of what may ultimately become necessary, and as a signal that Congress will likely approve whatever force is deemed necessary when the time for decision comes.

The legislative history supports the above reading of the statutory text. The House International Relations Committee felt that the Resolution should permit use of military force in Iraq only “under certain circumstances.” H.R. Rep. No. 107-721, at 4 (2001). The Committee took the view that “providing the President with the authority he needs to use force is the best way to avoid its use,” to “persuade Iraq to meet its international obligations,” and “to persuade members of the Security Council and others in the international community to join us in bringing pressure on Iraq ….” H.R. Rep. No. 107-721, at 4–5. The Committee also limited the President’s authority to actions taken “in accordance with the Constitution and relevant laws of the United States.” H.R. Rep. No. 107-721, at 6. Thus the President could not exercise warmaking authority that Congress was unable to grant him. See infra. The Committee also expressed approval of the President’s stated commitment “to work with the United Nations Security Council.” H.R. Rep. No. 107-721, at 7–8 (internal quotation marks omitted). The Committee clearly did not contemplate war at the time, given the absence of any appropriation for present or future warmaking, H.R. Rep. No. 107-721, at 39–40.

2. A Broader Reading of the October Resolution Would Render it Unconstitutional, So This Court Should Read It Narrowly

While the interpretation detailed above makes the best sense of the text, structure, and legislative history of the October Resolution, it is also true that the text can bear broader readings, all the way up to giving the President discretion to commence an invasion and occupation of Iraq. However, any reading broader than the one above would render the Resolution unconstitutional. The Supreme Court has stated on numerous occasions (famously in Justice Brandeis’s concurrence in Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936)) that when a statute has multiple plausible meanings, a court should construe it to avoid raising serious constitutional problems. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). The Court has also developed a number of canons of construction to protect various constitutional values, many of which apply here. Needless to say, a vague Resolution, unaccompanied by any provision for appropriations or a draft, does not constitute a clear statement of Congressional intent to make war with Iraq. See DaCosta v. Laird, 448 F.2d 1368, 1369 (1st Cir. 1971) (holding that Congress’s continued military appropriations and extension of the draft constituted “ratification” and “approval” of executive actions in Vietnam, even after the repeal of the Tonkin Gulf Resolution).

First and most importantly, Congress may not delegate to the President the decision to commence a war, and if the October Resolution does so, it is unconstitutional. The Constitution plainly lodges the power and responsibility for commencing war in Congress. If Congress can just “leave the decision to use force to the discretion of the President,” H.R. Rep. 107-721, at 40, then it undermines the entire constitutional scheme.

A broad reading of the October Resolution would subvert the distinction made in the early cases, still influential today, between declared (“perfect”) wars, in which the President and all citizens were authorized to make war against an enemy, and undeclared (“imperfect”) wars, in which the President could only engage in actions specifically authorized by Congress. Bas v. Tingy, 4 U.S. (4 Dall.) 37, 40 (1800) (Washington, J.); see Little v. Barreme, 6 U.S. (1 Cranch) 170 (1804); Talbot v. Seeman, 5 U.S. (1 Cranch) 1, 8 (1801); discussion supra. There is an obvious tradeoff in this dichotomy: because Congress may not devote the same amount of deliberation and solemnity to undeclared wars that it does to declared ones, it makes sense that as the safeguards of prudence and delay give way they should be replaced by the safeguards that come with cabining of the President’s warmaking discretion. The October Resolution neither makes a solemn declaration of war nor limits the acts of war the President may commit.

Indeed, war is supposed to take place only after considered deliberation by all of the branches as to what current circumstances demand, but § 3 of the October Resolution, read broadly, allows the President to make the decision entirely by himself. § 3 purports to “authorize” the President to use the Armed Forces “as he determines to be necessary and appropriate,” if he decides that “diplomatic or other peaceful means” will not work and that the use of force is “consistent” with national and international attempts to fight terrorism. Abraham Lincoln’s words make it clear what is at stake: “Allow the President to invade a neighboring nation whenever he shall deem it necessary to repel an invasion, and you allow him to do so whenever he may choose to say he deems it necessary for such purpose – and you allow him to make war at pleasure. Study to see if you can fix any limit to his power in this respect, after you have given him so much as you propose.” Letter from Abraham Lincoln to William H. Herndon (Feb. 15, 1848), in 1 The Collected Works of Abraham Lincoln 451, 451-52 (R. Basler ed., 1953).

It is no answer to say that Congress remains free to stop any war that the President might commence. When Congress vests discretion in the President to start a war, the default switches from peace to war, in a way that separation of powers principles cannot permit. Cf. Heckler v. Chaney, 470 U.S. 821, 832 (1985) (holding that unlike administrative action, agency inaction is generally not subject to judicial review, in part because inaction “generally does not exercise its coercive power over an individual's liberty or property rights”). In INS v. Chadha, the Supreme Court rightly rejected Justice White’s claim that the legislative veto regime was functionally equivalent to Article I procedures, in part because the regime changed the default. 462 U.S. at 952; id. at 990 (White, J., dissenting). It was true that, if all three branches agreed, then an otherwise deportable alien could remain in the country. However, in the case of legislative disagreement when the Executive made such an exception, the legislative veto allowed a majority vote by one house of Congress to achieve what would otherwise likely require sufficient supermajorities in both Houses to override an Executive veto. In the present context, one can imagine a scenario where, several months from now, the President wants to go to war, but majorities in both houses do not. Absent a delegation to the President of warmaking authority, Congress need only refuse to act, in order to prevent war. With discretion vested in the President, Congress would need at least to mobilize majorities in both houses, and would probably need veto-proof majorities.

In the war context, the change in default has more than merely mathematical consequences. In light of the President’s enormous power to shape public opinion, it is difficult for Congress to summon a bare majority to resist Executive pressure to commence a war. Once a President actually commences a war, he has momentum on his side, and can accuse dissenters of refusing to “support the troops”; these together make effective congressional resistance even harder to accomplish.

For similar reasons, Congress’s power of the purse does not constitute an effective check on discretionary Executive warmaking. Even if it did, “the fact that one [branch] has mechanisms available to guard against incursions into its power by other [branches] does not require that the judiciary remove itself from the controversy by labeling the issue a political question.” United States v. Munoz-Flores, 495 U.S. 385, 393 (1990).

Congressional delegation of warmaking power also undermines the guarantees that a war will have widespread popular support and that legislators will be held accountable for the decision to go to war. Of course, the President is popularly elected, and will be held accountable regardless of whether Congress is, but that is precisely the point. The President’s motivations remain the same whether Congress participates in the decision or not. The mere fact that Congress does not wish to make the decision about whether to go to war does not absolve it from deciding. See New York v. United States, 505 U.S. at 168–69, 177, 182–3. If that means the country cannot go to war, so be it. It is no accident that the Constitution provides no mechanism for the Executive to make war (except to repel sudden attacks), should Congress be unwilling to start a war.

Finally, vesting the President with the discretion to start a war also removes whatever braking effect congressional deliberations might have on the speed with which we enter war. The war will start the moment President Bush makes his decision.

The problems with broad delegation of warmaking authority are nicely illustrated by the most recent instance where Congress gave a president virtually unbounded discretion to make war – The Gulf of Tonkin Resolution, Pub. L. No. 88-408, 73 Stat. 384 (1964). The language is startlingly similar to that in the October Resolution: “[T]he United States is … prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member of protocol state of the Southeast Asia Collective Defense Treaty.” Pub. L. No. 88-408, 73 Stat. at 384 (emphasis added). After its passage, President Johnson claimed broad authority under it and plunged the nation into a war that killed 58,000 Americans and at least one million Vietamese. See Meyerson, “Decision on war belongs to Congress,” Baltimore Sun, at 21A (Oct. 9, 2002); Ely, War and Responsibility 13. Once Johnson had enmeshed troops in the conflict, it took nearly seven years for Congress to repeal the resolution (war was the default and the President had inertia on his side), and at that point President Nixon still did not end the war (the President gains strength in war time, and can check congressional efforts to end war). Meyerson, “Decision on war belongs to Congress,” Baltimore Sun, at 21A. By leaving the decision as to when to go to war to the President, Congress failed to ensure that the Vietnam War would have widespread public support, with disastrous consequences.

The comparison with Vietnam is apposite for two other reasons. First, in the Vietnam situation Congress continued to appropriate money and authorize the draft, making it fairly clear that a state of war existed. See DaCosta v. Laird, 448 F.2d 1368, 1369 (1st Cir. 1971). With regard to Iraq, it is not at all clear whether the U.S. is at war with Iraq, and no appropriation has been made. This sort of ambiguity flies in the face of the constitutional values discussed above, and suggests that the October Resolution is constitutionally deficient as a declaration of war.

Second, the war in Iraq is one of the most obvious instances in this nation’s history where the requirements of the Declare War Clause should be scrupulously observed. The President has contemplated invasion, occupation, and “regime change” in Iraq; the only way to make more total war against Iraq would be to destroy it utterly. A commitment like that should certainly require a clear statement by Congress. The only instance in recent memory where the United States engaged in such an invasive war was in Afghanistan, and that was in response to one of the most significant military emergencies the United States has experienced since the bombing of Pearl Harbor. Presumably, if the President or Congress thought that Iraq truly posed an imminent threat to national security, we would already be at war. These observations demonstrate two related aspects of the potential war in Iraq – the opportunity the United States government has had for premeditation, and the comparative lack of emergency. In World War I, the Korean War, and the Vietnam War, the United States was responding to threats to strategic allies. In World War II and Afghanistan it was responding to direct attacks on the homeland. But here, the United States is contemplating a preemptive total war against a country that does not appear, at least from the conduct of the political branches, to pose an imminent threat to the United States or its allies. If ever there was a time in history for a court to “state what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), it is now.

While the Supreme Court has not invalidated any statutes under the nondelegation doctrine for some time, the doctrine has recently served as a powerful guide to interpretation of statutes, and should do so here. See Industrial Union Department, AFL-CIO v. American Petroleum Institute (“the Benzene Case”), 448 U.S. 607, 646 (1980) (quoting A.L.A Schecter Poultry Corp. v. United States, 295 U.S. 495, 539) (refusing to interpret the Occupational Safety and Health Act of 1970 to permit the Secretary to set an extremely low benzene exposure limit without first engaging in a sufficient quantification of risk, because “such a ‘sweeping delegation of legislative power’ that it might be unconstitutional”). The “sweeping power” over the economy that so alarmed Justice Stevens in Benzene certainly poses no greater threat to separation of powers or individual liberty than does the discretion the October Resolution arguably gives the President to send American citizens into danger and possibly to their deaths.

A number of other canons of statutory construction protect constitutional structural values implicated here. Public Citizen v. United States Department of Justice interpreted a statute narrowly to avoid possibly infringing on Presidential powers. 491 U.S. 440, 466–67 (1989). Even though Congress’s October Resolution is potentially augmenting, rather than diminishing the Executive Branch’s power, the accountability and structural principles articulated in New York v. United States should lead to the same result. Similarly, the President’s ability to take control of the state militias in time of war, as President Bush has already done, upsets the federal-state balance, and Gregory v. Ashcroft suggests that the October Resolution should be read narrowly for that reason. 501 U.S. 452, 460–61 (1991); see also Will v. Mich. Dept. of State Police, 491 U.S. 58, 65 (1989). Cases like United States v. Lopez have also expressed the need for Congress to give reasons for and to respect limits on its exercise of Article I powers, when such exercise implicates structural values.

Courts also interpret statutes narrowly when they infringe on individual constitutional rights. For example, Kent v. Dulles refused to impute to Congress an intention to authorize the Secretary of State to infringe on the fundamental constitutional right to travel, by denying a passport application solely because the applicant was a Communist. 357 U.S. 116, 128–29 (1958); see Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring); Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988). It is difficult to imagine a greater infringement on one’s liberty (including the right to travel) than being sent to the front of a total war.

Finally, given the United States’s status as a member of the United Nations, and the fact that under the Supremacy Clause, “Treaties … shall be the Supreme Law of the Land,” it makes sense to presume that Congress intended to comply with the U.N. Charter’s prohibitions against unilateral use of force when it passed the October Resolution. U.S. Const. art. 6, § 1, cl. 2.

3. Even if the October Resolution Complies with Constitutional Strictures, It Does Not Comply with the War Powers Resolution of 1973

The War Powers Resolution of 1973 requires “specific statutory authorization” before the President can make war. Pub. L. 93-148, 87 Stat. 555 (1973). The alternative grounds for hostilities – a congressional declaration of war or “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces” – do not apply in this instance. It is clear that unless repealed, these requirements can bind future Congresses, and that the October Resolution both claims to constitute “specific statutory authorization” and expressly denies that it in any way “supersedes any requirements of the War Powers Resolution.”

However, the October Resolution is not in fact “specific” enough to meet the requirements of the War Powers Resolution, as they emerge from an analysis of purpose and context. The War Powers Resolution was passed near the end of the Vietnam War, in an effort to ensure that in the future Congress would be less likely to abdicate its constitutional responsibility to decide whether the nation should go to war. Ely, War and Responsibility 48. In other words, the purpose of the War Powers Resolution was to prevent future Vietnams.

There are several mechanisms by which the War Powers Resolution sought to achieve this end: requirement that the President report to and consult with Congress regularly throughout the duration of any hostilities (§§ 3–5); requirement that the President withdraw troops within a 60 days (which can be and probably would virtually always be extended by 30 days), unless Congress affirmatively authorizes continued hostilities (§5(b)); allowing a legislative veto to halt hostilities at any time (likely invalid under Chadha, but separable under § 9) (§5(c); establishing an interpretive rule that no statute or treaty shall be construed to infer authorization to introduce American troops into hostilities (§ 8).

From this scheme there emerge two basic lines of defense against future Vietnams, and they shed light on the meaning of “specific statutory authorization.” The first includes efforts to ensure accountability once a military engagement has begun (consultation, reporting, Congressional approval within 60–90 days). The second includes efforts to prevent military engagement and, more importantly, escalation in the first place (specific conditions under which hostilities can commence). In this latter category, the canon of ejusdem generis requires that the “specific statutory authorization” requirement be interpreted in light of the alternative avenues to hostilities. On the one hand, a congressional declaration of war is a clear and solemn statement committing the nation to war – a statement for which the Congress can absolutely be held accountable. On the other, a response to an armed attack on the United States, its possessions, or its troops is the most clearly recognized exception to the Congressional declaration requirement, and a response for which the President can be held absolutely accountable. Thus, if § 2 of the War Powers Resolution is to be something more than a dead letter, a “specific statutory authorization” must create both the obvious state of war and the clear location of responsibility that a declaration or armed attack would.

As should be clear from the discussion above, the October Resolution demonstrates no such clarity. No one could read it and tell whether the nation was in fact at war, and (read broadly) it grants discretion to the President in such a way that no one would know where to locate responsibility, were a war to commence. In fact, the October Resolution gives the President the same kind of discretion to escalate hostilities, merely by asserting his opinion that such action is “necessary and appropriate,” that the Gulf of Tonkin Resolution did. The War Powers Resolution can be understood as an attempt to ensure that no Congress would never again give this kind of warmaking discretion to a President, yet that is precisely what the October Resolution (read broadly) does.

The Plaintiffs are likely to succeed on the merits of their claims.

II. THE PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF THE DEFENDANTS LAUNCH A MILITARY INVASION OF IRAQ ABSENT A CONGRESSIONAL DECLARATION OF WAR.

By waging war against Iraq absent a congressional declaration of war, the Defendants will endanger the lives of Plaintiffs John Doe I and John Doe II, the sons of Plaintiffs John Doe III and Jane Doe I, Susan E. Schumann, Charles Richardson and Nancy Lessin, Jeffrey McKenzie and tens of thousands of similarly situated United States soldiers in an illegal and unconstitutional war. If the injunction is not granted, Plaintiff-soldiers and family members will suffer irreparable harm, including death, loss of family members, serious injury, and psychological trauma associated with the horrors of war.

By waging war against Iraq absent a congressional declaration of war, Defendants will deny Plaintiff-Members of Congress their right, under Article I § 8 of the United States Constitution, to vote on whether or not to declare war. If the injunction is not granted, Plaintiff-Members of Congress will suffer irreparable harm as they will be prevented from exercising this constitutional right and from representing their constituents in the decision of whether or not to send this nation into war.

To prevail on their motion for preliminary injunction, the plaintiffs must demonstrate that the threatened injury is “not remote or speculative, but is actual and imminent.” Sierra Club v. Larsen, 769 F.Supp. 420, 422 (D. Mass. 1991). The injury must be of such imminence that there is a clear and present need for relief to prevent irreparable injury. Id. The President, the Secretary of Defense and the Secretary of State have made it unmistakably clear that an invasion of Iraq is imminent and have voiced no intention of seeking a congressional declaration of war. The threat of irreparable harm against the plaintiffs is not speculative, but a virtual certainty in the immediate future.

The drumbeat of war sounds more deafening by the day. President Bush set the stage in his State of the Union address on January 28, 2003, stating that Saddam Hussein had missed his “final chance” by showing contempt for United Nations weapons inspections. State of the Union Address, http://www.whitehouse.gov/news/releases/2003. He emphasized that the administration reserved the right to unilaterally decide to invade Iraq, proclaiming that “[t]he course of this nation does not depend on the decisions of others.” Id. The Congress and members of the media clearly understood his message. See e.g. Remarks of Senator Bingaman, 149 Cong. Rec. S1767-01 (Jan. 30, 2003) (“as I understood the President in his State of the Union speech earlier this week, it is his intention to begin military action against Iraq sometime in the near future”); Dana Milbank and Mike Allen, Bush Stiffens Warning of War With Iraq, Wash. Post, Jan 29, 2003 at A, 2003 WL 10893702 (“President Bush took the nation to the edge of war with Iraq last night”).

Anticipating the president’s address, Secretary of State Colin Powell declared on January 24, 2003 that “[t]he question isn’t how much longer do you need for inspections to work. Inspections will not work.” Glenn Kessler, Moderate Powell Turns Hawkish on War With Iraq, Wash. Post, January 24, 2003 at A, 2003 WL 10892661. After his presentation to the United Nations on February 5, 2003, Powell informed the Senate that “within weeks” the Iraqi situation would be brought to a conclusion “one way or another.” Barry Schweid, Powell sees inspectors visit as key to Iraqi situation, Associated Press, February 6, 2003. Shortly thereafter, Secretary of Defense Rumsfeld suggested the timetable for invasion could be even shorter. Rumsfeld says “days or weeks” left for Iraq, Reuters Eng. News Serv., Feb. 8, 2003.

Since the Powell presentation to the United Nations on February 5, 2003, the President has begun to issue daily threats that imminent hostilities will soon commence against Iraq. On February 6, 2003, the President announced that “[w]e will not wait to see what terrorists or terrorist states could do with chemical, biological, radiological or nuclear weapons. Saddam Hussein can now be expected to begin another round of empty concessions, transparently false denials. No doubt, he will play a last-minute game of deception. The game is over.” World Can Rise to This Moment, White House Press Release, February 6, 2003, http://www.whitehouse.gov/news/releases/2003) (emphasis added). On February 7, 2003, he warned the United Nations to “make up its mind soon” because the United States would not wait long before leading a coalition to disarm Saddam Hussein. Barry Schweid, Bush urges U.N. to “make up its mind soon” on Iraq, Associated Press, Feb. 7, 2003. One day following deployment of a fifth aircraft carrier to the Gulf region and a State Department advisory to United States diplomats to leave their posts in Israel, Syria, Jordan and Lebanon for personal safety, President Bush stated that “[t]he United States, along with a growing coalition of nations, will take whatever action is necessary to defend ourselves and disarm the Iraqi regime.” Bush braces Americans for a possible war with Iraq, Reuters Eng. News Serv., February 9, 2003. Echoing his earlier reference to a “game,” President Bush stated on February 10, 2003 “[Saddam] wants the world to think that hide and seek is a game that we should play. And it’s over.” White House Press Release, February 10, 2003, http://www.whitehouse.gov/news/releases/2003 (emphasis added). Arab leaders have now abandoned diplomatic efforts to prevent war and are bracing for an imminent conflict any day after February 15, 2003. Rana Sabbagh-Gargour, Leaders braced for an imminent war, Times OnLine, February 10,2003, http://www.timesonline.co.uk.
As a result of the administration’s plans to commence hostilities in Iraq possibly “within days,” according to Secretary Rumsfeld, the plaintiff soldiers will be placed in harm’s way and the plaintiff parents of soldiers will suffer the risk of death or injury to their children in an undeclared, unauthorized and unconstitutional war. The constitutional right and authority of plaintiff congressional representatives to decide whether to declare war will be irreparably harmed. The threat of harm to all plaintiffs is actual and imminent, and supports their request for this Court to grant immediate injunctive relief.

III. THE PUBLIC INTEREST WILL BE SERVED BY THE ISSUANCE OF AN INJUNCTION.

The decision whether to send United States armed forces into war is a momentous decision for this nation. The public has a clear and immediate interest in participating in that decision through their representation by Senators and Representatives in Congress, as required by the Constitution.

A war against Iraq may result in thousands of deaths of United States soldiers and Iraqi citizens. If this war is commenced in violation of the Constitution, it will severely undermine the rule of law and the separation of powers that the framers of the Constitution carefully designed. The public has an interest in ensuring that the Constitution is upheld, especially in matters of war and peace. The Court should issue the requested injunction to protect these public interests.

IV. A BALANCING OF THE HARMS WEIGHS DECISIVELY IN FAVOR OF THE PLAINTIFFS.

There are no countervailing harms of any weight to be balanced by the Court. The Defendants do not have any authority to wage war against Iraq absent a congressional declaration of war or equivalent action by the United States Congress. The requested injunction will prevent the Defendants from illegally and unconstitutionally sending this nation into war. There is no legally-cognizable harm that can result from such an injunction.

Conclusion

For the foregoing reasons, the Court should grant plaintiffs’ motion for a preliminary injunction and expedited hearing.

February 13, 2003
Respectfully submitted,_____________________________________
John C. Bonifaz (BBO #562478)
Cristobal Bonifaz
LAW OFFICES OF CRISTOBAL BONIFAZ
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Jamaica Plain, Massachusetts 02130
(617) 524-2771

and

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Prof. Margaret Burnham (BBO #066200)
Northeastern Univ. School of Law
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Boston, MA 02115
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Max D. Stern (BBO #479560)
Stern Shapiro Weissberg & Garin
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(617) 742-5800

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