Dellums v. Bush

752 F. Supp. 1141 (1990)

Background:Iraq invades Kuwait so US sends troops to Saudi Arabia which appears to be the next country in line. By November there were 250k troops there and to this point there was no mention of offensive attack. They decide to send another 250k troops and a UN Security Council directive that said “get your troops out or else”.

Facts: Lawsuit by a number of members of Congress who request an injunction directed to the President to prevent him from initiating an offensive attack against Iraq without first securing a declaration of war or other explicit congressional authorization.

Issue: whether the US Government’s three separately argued points are sufficient for denying the claim: 1) that the challenge wasn’t subject to judicial review because it was a political question; 2) Plaintiffs did not have standing to bring suit; 3) the case wasn’t sufficiently ripe for a suit.

Holding:

  1. Political Question:
  • Held that if it was solely in the executive power to determine that any offensive military operation was not a war-making attack (and only an offensive military action), the congressional power to declare war would be at the mercy of the executive decision. This would violate the Constitution.
  • References Mitchell case and says it stands for the proposition that courts don’t lack the power and ability to make the factual and legal determination of whether this nation’s military actions constitute war for purposes of the constitutional War Clause.
  • Court argues the judicial power is not excluded from resolving cases merely because they may touch on a political question. The court must look at the particular question posed.
    1. Standing: Two-part testof 1) the actual or threatened injury and 2) an injury that can be traced to the challenged action. Court found standing adequate to proceed because of imminent threat.
    2. Ripeness: May still be able to issue an injunction to prevent the conduct of war but need to prove two aspects of ripeness:
  • Actions by the Congress: Congress has not yet provided any indication of whether it would vote for or against the war.
  • Actions taken by the Executive: Has the President’s conduct clearly indicated a intent to go to war? Court found that Executive branch has not shown a commitment to a definitive course of action sufficient to support ripeness.

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