1 Chapter 6 - The role of the Judiciary Part I. 2 The Legal Domino Effects of War Example 1 Alien Enemy Act, 50 U.S.C. §21 (2000), ‘‘whenever there is.

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Chapter 6 - The role of the Judiciary

Part I

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The Legal Domino Effects of WarExample 1

Alien Enemy Act, 50 U.S.C. §21 (2000), ‘‘whenever there is a declared war

between the United States and any foreign nation or government,’’ citizens of ‘‘the hostile nation or government’ ’who are at least 14 years old and not naturalized are subject to summary arrest, internment, and deportation when the President so proclaims.

How would this work in the war on terrorism?

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The Legal Domino Effects of WarExample 2

Trading With the Enemy Act, 50 U.S.C. App. §§1-44 (2000) enables the President to regulate or prohibit

commerce with an enemy state or its citizens after ‘‘Congress has declared war or the existence of a state of war.’’ And the President may authorize electronic surveillance, physical searches, and the use of pen registers and trap and trace devices to acquire foreign intelligence without a court order for up to 15 days ‘‘following a declaration of war by Congress.’’

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The Authorization of Force after 9/11

...use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations, or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. [Pub. L. No. 107-40, §2(a), 115 Stat. 224 (2001).]

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What is the effect of this Authorization?

Did Congress declare war on al Quada? Can congress declare a war on an enterprise,

rather than a country? How does the war on terror differ from previous

declarations of war? Should such a declaration trigger the usual war

measures, including international law issues? What is the vagueness problem for foreign

countries and their citizens?

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Political Question Review:Baker v. Carr, 369 U.S. 186, 217 (1962)

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or

a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or

the impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or

the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

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The First Gulf WarDellums v. Bush, 752 F. Supp. 1141 (1990)

What precipitated the US actions? Why do we care about Kuwait? How does the president's cooperation with

Congress and allies differ from that in the Second Gulf War?

Were we on our own in the First Gulf War? How did the First Gulf War end?

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Saudi Arabia

What is the strategic importance of Saudi Arabia? Is Saudi Arabia our ally? Do they like us to have troops in their country?

Why? Are they a moderate Muslin country that seeks to

calm Islamic extremist groups?

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Status of the Troops

What had the president done at the time this suit was brought?

Just as a comparison with the second Gulf War, how many troops were on the ground in Saudi Arabia?

What was the president and Cheney's stated intent at the time the suit was filed?

What role did Cheney have then? What role did he have in the Second Gulf War? Any other familiar faces in the Bush I White House?

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The Plaintiffs

Who is bringing this action? What does the plaintiff want to get? What congressional power do they claim the

president is invading? What do they want the president to do before

acting? Do you think all members of congress support

this action? Would that matter?

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The Political Question

What is the president's broad political question defense?

What did Baker v. Carr tell us about political questions?

Why doesn't the court buy the claim that it cannot decide if there is a war going on?

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(Internal case) Mitchell v. Laird, 488 F.2d 611, 614 (D.C. Cir. 1973)

What war was this? How did the court characterize the question of

whether there was a war going on? What makes a war under the Mitchell standard? What was the congressional remedy if the

Vietnam was an illegal war? Why was congress unwilling to use the

remedy?

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Standing

Has Congress passed a law or resolution barring the incursion into Iraq?

What controls does Congress have? Why can't plaintiffs get Congress to use these powers? Do you think the judge is right that they should be able to

go forward just because they cannot get Congress to use its remedial powers? Is the president hiding the troop buildup from them? Has the president adjourned Congress to prevent the

vote?

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Ripeness

What could congress do to moot this? What could the president do? How does this affect ripeness? What would be the impact of the injunction if

issued at this point?

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End Result?

What is the court's holding? Do you think the United States Supreme Court

would ever really decide this type of case?

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Ange v. Bush, 752 F Supp 509 (1990)

What is the plaintiff's basis for the claim that the president does not have the authority to order him to Iraq?

What does the plaintiff want? What would be the effect on the military if plaintiff

prevails? Is this ultimately the same problem as in

Dellums?

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How does Judge Lambert argue that this is a classic political question?

This court’s refusal to exercise jurisdiction under the . . . political question doctrine by no means permits the President to interpret the executive’s powers as he sees fit, nor does it mean that the legislative branch is helpless without the assistance of the judicial branch. Congress possesses ample powers under the Constitution to prevent Presidential overreaching, should Congress choose to exercise them.

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The Problem of Standards for War Powers Cases

Does the constitution clearly prevent the president from using troops to invade other countries?

Has the president done this without a declaration of war since the beginning?

What standard could a court use to decide that a military action is illegal? Why does being against a law passed by Congress not

solve the problem? What would it take to pass such a law?

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What does Judicial Abstention Mean to Separation of Powers?

Who "wins" when the court invokes political question abstention in a war powers case?

Does this shift the balance of powers between the branches of the government?

Is this better than the separation of powers problem posed if the court intervened in a war powers case?

Are the courts right to stay out of war powers cases?

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Gilligan v. Morgan, 413 U.S. 1, 6 (1973)

The Kent State Shootings Who shot whom? Who did the shooters work for? What did the lawsuit seek? What was the separation of powers issue for the

court?

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The Courts Ruling

Which branch did the court think should be investigating the Guard?

What provision of the constitution did the court base its ruling on?

What outcome was the court avoiding, i.e., what happens if the troopers had been properly ordered to shoot the students?

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What about criminal prosecutions under state law?

What would the state have to show for a successful prosecution of the individuals?

What would be necessary to beat a "following orders" defense?

What are the political chances for such a prosecution?

Who do you think the special state grand jury indicted?

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In Goldwater v. Carter, 617 F.2d 697 (D.C. Cir. 1979) (en banc), rev’d, 444 U.S. 996 (1979)

(Discussed in Chapter 7) This was a fight between Goldwater in congress and

President Carter over the Panama Canal Treaty The court did not find a political question, but dismissed

for standing. Why does the court prefer to not find political questions?

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Standing to Sue: Northeastern Florida v. Jacksonville, 508 U.S. 656, 663-664 (1993)

What is injury in fact? Concrete? Actual, not imminent?

Causal relationship? Redressability? Why does a denial of standing not tell us anything about

the underlying merits of the case? Can there be wrongs where no one has standing to

sue to correct them?

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Stopped here

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Zone of Interest?

What is the zone of interest? Does the plaintiff have to be the one injured? Qui tam actions?

What can congress modify by statute? What factors cannot be modified? Are these the same in the state courts?

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Can Congress Change the Court's Behavior?

Why can’t Congress force the court to resolve political question cases?

Can Congress take away the court's jurisdiction over national security cases? If abstention is the problem, would it matter?

Are there constitutional limits on this? What are the political limits?

More in the detainee cases

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Citizen Standing

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Pietsch v. Bush, 755 F. Supp. 62 (E.D.N.Y. 1991)

What was plaintiff's claimed injury in fact? Was he a soldier posted to Iraq?

What did the court say about this? What about his claim that any citizen should be

able to sue to require the government to obey the constitution?

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Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208 (1974)

Why did the plaintiff claim that it was unconstitutional for Congressmen to be National Guard Officers?

What constitutional provision does this violate? What is the separation of powers problem?

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The Ruling - Injury to all is Injury to None

‘‘standing to sue may not be predicated upon an interest of the kind alleged here which is held in common by all members of the public, because of the necessarily abstract nature of the injury all citizens share.’’

Why? Putting aside the court's ruling, do the plaintiffs

have a valid constitutional argument? What was the problem with their standing?

What could congress do if it wanted to fix this?

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Flast v. Cohen, 392 U.S. 83 (1968)

Why does it matter which constitutional provision is being violated?

What is the two part test? How is the activity linked to the taxpayer? the taxpayer must show that the challenged enactment exceeds

specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, §8

Do you think a tax payer can assert that a war is illegal? Can a tax payer get standing if he complains that he does not want

his tax money spent on an illegal war?

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Raines v. Bird, 521 U.S. 811, 829 (1997)

What did the plaintiff congressmen want the court to rule?

What was their standing problem? If congress really though this was

unconstitutional, what could it do? What did the court eventually rule about the line

item veto?

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Campbell v. Clinton, 52 F. Supp. 2d 34 (D.D.C. 1999), aff’d, 203 F.3d 19 (D.C. Cir. 2000)

(Bombing Yugoslavia) What were the congressmen arguing? What does it mean to say that "there were

congressional votes defeating a declaration of war (427-2), defeating an authorization of the air strikes (213-213), defeating a resolution ordering an immediate end to U.S. participation in the NATO operation (290-139)

What is the legal status of a bill that does not pass?

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What did Congress vote for?

Why does one passed and signed appropriations bill trump a thousand failed bills? Would it even trump a successful join resolution

telling the president to get out of Yugoslavia? What can congress do if it does not like a war the

president is in? What can congress do if the president orders in troops

in violation of provisions of the appropriations bill supporting the troops?

Why does the court find there is no standing if there is any legislative remedy?

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Congressional Standing

When does Tribe think congressman should have standing? What does it mean that a presidential action

nullified a congressional vote? What recourse does Congress always have?

Why does Scalia think that congressmen should never have standing in their official capacity?

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Doe v. Bush, 323 F.3d 133 (1st Cir. 2003)

Why did plaintiffs say that it was illegal for Bush II to invade Iraq?

What is wrong with the claim that congress colluded with the president?

Why isn't there a real conflict between Congress and the President?

What did Hillary say to explain her vote? Do you think the court would have reached a

different result if they had waited a few days and the war had started?

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In general, why is the role of the courts so limited as regards illegal wars and fights in congress over war powers?