KUCINICH et al v. OBAMA et al

Filing 12

REPLY to opposition to motion re 8 MOTION to Dismiss filed by ROBERT GATES, BARACK OBAMA. (Womack, Eric)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

DENNIS KUCINICH, et al.,

)
)
Plaintiffs,
)
)
v.
)
)
BARACK OBAMA, et al.,
)
)
Defendants.
)
____________________________________)

Case No. 1:11-cv-01096 (RBW)

REPLY IN SUPPORT
OF DEFENDANTS’ MOTION TO DISMISS

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................2
I.

PLAINTIFFS’ ASSERTION OF STANDING TO SUE AS LEGISLATORS
AND TAXPAYERS IS FORECLOSED BY BINDING PRECEDENT ............................2
A.

Plaintiffs’ Alleged Institutional Injury in Their Capacities as Legislators
Does Not Establish Standing to Sue ........................................................................2

B.

Plaintiffs’ Alleged Injury in Their Capacities as Taxpayers Does Not
Establish Standing to Sue.........................................................................................7

II.

PLAINTIFFS’ WAR POWERS CHALLENGES PRESENT NONJUSTICIABLE POLITICAL QUESTIONS ......................................................................11

III.

PLAINTIFFS’ THIRD AND FOURTH CLAIMS DO NOT PRESENT AN
ARTICLE III CASE OR CONTROVERSEY ...................................................................16

IV.

SHOULD THIS COURT REEXAMINE LEGISLATIVE STANDING
PRECEDENT, PRUDENTIAL CONSIDERATIONS WOULD STILL
COUNSEL AGAINST RESOLVING PLAINTIFFS’ CLAIMS ON THEIR
MERITS .............................................................................................................................18

CONCLUSION ..............................................................................................................................20

i

TABLE OF AUTHORITIES
FEDERAL CASES
Al-Aulaqi v. Obama,
727 F. Supp. 2d 1 (D.D.C. 2010) .............................................................................................13
Alaska Legislative Council v. Babbitt,
181 F.3d 1333 (D.C. Cir. 1999) .................................................................................................4
Ange v. Bush,
752 F. Supp. 509 (D.D.C. 1990) ....................................................................................2, 13, 19
*Ariz. Christian School Tuition Org. v. Winn,
131 S. Ct. 1436 (Apr. 4, 2011)...................................................................................................9
Baker v. Carr,
369 U.S. 186, 82 S. Ct. 891 (1962) ..........................................................................................11
Bas v. Tingy,
4 U.S. (4 Dall.) 37, 1 L. Ed. 731 (1800) ..................................................................................14
Bowen v. Kendrick,
487 U.S. 589, 108 S. Ct. 2562 (1988) ........................................................................................8
*Campbell v. Clinton,
203 F.3d 19 (D.C. Cir. 2000) ........................................................................................... passim
Chenoweth v. Clinton,
181 F.3d 112 (D.C. Cir. 1999) .....................................................................................3, 4, 5, 18
Crockett v. Reagan,
558 F. Supp. 893 (D.D.C. 1982) ..............................................................................................13
El-Shifa Pharm. Indus. Co. v. United States,
607 F.3d 836 (D.C. Cir. 2010) ...............................................................................11, 12, 13, 14
*Hein v. Freedom from Religion Found., Inc.,
551 U.S. 587, 127 S. Ct. 2553 (2007) ..............................................................................8, 9, 10
*In re Navy Chaplaincy,
534 F.3d 756 (D.C. Cir. 2008) .............................................................................................8, 10
Kucinich v. Bush,
236 F. Supp. 2d 1 (D.D.C. 2002) .....................................................................................4, 5, 12

ii

Lowry v. Reagan,
676 F. Supp. 333 (D.D.C. 1987) ..............................................................................................19
Melcher v. Fed. Open Mkt. Comm.,
836 F.2d 561 (D.C. Cir. 1987) .................................................................................................19
Mitchell v. Laird,
488 F.2d 611 (D.C. Cir. 1973) .................................................................................................14
New Jersey Peace Action v. Obama,
2009 WL 1416041 (D.N.J. 2009) (unpublished) .....................................................................10
People’s Mojahedin Org. of Iran v. Sec’y of State,
182 F.3d 17 (D.C. Cir 1999) ....................................................................................................12
Pietsch v. Bush,
755 F. Supp. 62 (E.D.N.Y. 1991) ............................................................................................10
Pietsch v. The President of the United States,
434 F.2d 861 (2d Cir. 1970).....................................................................................................10
*Raines v. Byrd,
521 U.S. 811, 117 S. Ct. 2312 (1997) .............................................................................. passim
Sanchez-Espinoza v. Reagan,
770 F.2d 202 (D.C. Cir. 1985) ...................................................................................................2
Shalala v. Ill. Council on Long Term Care, Inc.,
529 U.S. 1, 120 S. Ct. 1084 (2000) ..........................................................................................14
Zivotofsky v. Sec’y of State,
571 F.3d 1227 (D.C. Cir. 2009) ...............................................................................................12
STATUTES
31 U.S.C. § 1301 ..............................................................................................................................6
42 U.S.C. § 1988 ..............................................................................................................................2
LEGISLATIVE MATERIALS
157 Cong. Rec. H4021 (daily ed. June 3, 2011) .............................................................................4
H.R. Con. Res. 51, 112th Cong. (2011) ...........................................................................................4

iii

INTRODUCTION
In their Opposition, plaintiffs ask this Court to break new ground in settled standing
doctrines. In contravention of the D.C. Circuit’s decision in Campbell v. Clinton, 203 F.3d 19
(D.C. Cir. 2000), plaintiffs invite this Court to recognize an exception to the jurisdictional bar
developed in Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312 (1997), that would permit plaintiffs
standing in their institutional capacities as legislators to challenge the proper allocation of the
constitutional war powers. In the alternative, plaintiffs ask this Court to side step the separation
of powers concerns that counsel against legislative standing by permitting all legislators to sue,
as long as they do so in their capacities as taxpayers. Such an end run should not be permitted in
light of existing D.C. Circuit and Supreme Court case law prohibiting taxpayer standing to raise
challenges, unrelated to the Establishment Clause, to Executive Branch action that is allegedly in
violation of legislative command.
The importance of the jurisdictional bar in the wake of Raines to suits such as the present
is magnified by the doctrines historically recognized by courts as barring consideration of the
merits of plaintiffs’ claims. Plaintiffs’ challenges to the allocation of the constitutional war
powers have been recognized as presenting core political questions, and courts have recognized
the prudential considerations counseling against review even if those claims could be held to be
justiciable. Accordingly, even if this Court were to accept plaintiffs’ invitation to return to an era
in which the jurisdictional prohibitions on standing were not so clear, the Court nevertheless
should refuse to evaluate plaintiffs’ claims on their merits.

1

ARGUMENT 1
I.

PLAINTIFFS’ ASSERTION OF STANDING TO SUE AS LEGISLATORS AND
TAXPAYERS IS FORECLOSED BY BINDING PRECEDENT
A.

Plaintiffs’ Alleged Institutional Injury in Their Capacities as Legislators
Does Not Establish Standing to Sue

In their Opposition, plaintiffs assert that they have suffered a “direct and concrete harm”
sufficient to provide them with standing in the present case based upon “(1) the deprivation of
their constitutionally prescribed role in voting to initiate war, and (2) the effective nullification of
their votes against authorizing a continuation of hostilities in Libya.” Opp. at 13. In so
asserting, plaintiffs do not point this Court to any authority that would support such an allegation
of injury in this context following the Supreme Court’s decision in Raines v. Byrd, 521 U.S. 811,
117 S. Ct. 2312 (1997), and the D.C. Circuit’s decision in Campbell v. Clinton, 203 F.3d 19
(D.C. Cir. 2000). Instead, plaintiffs’ Opposition focuses on the history of the case law prior to
the Supreme Court’s decision in Raines and criticizes the D.C. Circuit’s decision in Campbell.
No matter how strongly plaintiffs disagree with the current state of the law, however, this Court
is not free to ignore it. Accordingly, plaintiffs’ asserted injuries in their legislative capacities,
“based on a loss of political power, not loss of any private right,” fail to establish standing to sue

1

In a footnote of their Opposition, plaintiffs apparently continue to maintain that they have a
cause of action for monetary damages pursuant to the War Powers Resolution. See Opp. at 1213 n.2. While plaintiffs no longer appear to rely on 42 U.S.C. § 1988 for the waiver of sovereign
immunity that would permit such relief, they suggest that one district court has interpreted the
War Powers Resolution to provide “an implied cause of action.” Id. (citing Ange v. Bush, 752 F.
Supp. 509, 512 & n.1 (D.D.C. 1990)). However, a cause of action is not equivalent to a cause of
action for monetary damages, which the D.C. Circuit has recognized is “singularly
inappropriate” in the War Powers Resolution context. Sanchez-Espinoza v. Reagan, 770 F.2d
202, 209 (D.C. Cir. 1985). Indeed, “[n]either the text nor the legislative history . . . suggests an
attempt to create private damage actions, which would be strange tools for resolution of interbranch disputes or allocation of intra-branch responsibilities, particularly in the sensitive fields of
military and foreign affairs.” Id.
2

in the present case. Raines, 521 U.S. at 821, 117 S. Ct. at 2318; see also Mem. in Supp. of
Defs.’ Mot. to Dismiss at 5-9.
Plaintiffs make only two arguments that attempt to distinguish their allegations of
institutional injury from those consistently rejected by the courts in the wake of Raines. The first
argument suggests that the present case is different because “[t]his is not a case in which
Plaintiffs’ legislative efforts have failed and they are seeking instead to accomplish their
legislative objective through the courts. Nor do the Plaintiffs assert that the President’s actions
have altered prospectively the ‘meaning’ and ‘integrity’ of their votes such that their future votes
will be ‘less effective than before.’ Rather, the President’s unilateral commitment of U.S.
military forces in Libya has deprived Plaintiffs of an opportunity to exercise their
constitutionally prescribed role in initiating war.” Opp. at 16 (internal citations omitted).
Plaintiffs recognize, as they must, that the D.C. Circuit reached the “contrary result” in
Campbell. Opp. at 17. And the decision in Campbell is not an outlier on this issue; it followed
instead, and was consistent with, the numerous cases rejecting claims by legislators that their
votes were nullified because they were not given the opportunity to cast a vote on a particular
issue. Indeed, in Chenoweth v. Clinton, the D.C. Circuit rejected as sufficient for Article III
standing the allegation that legislators had been “deprived . . . of their constitutionally guaranteed
. . . vote on issues and legislation” as a result of the actions of the President. 181 F.3d 112, 113
(D.C. Cir. 1999). There, the plaintiff legislators had argued that their injury was more severe
than the one rejected by the Supreme Court in Raines, as they allegedly had been “denied . . . any
opportunity to vote for or against” a presidential initiative. Id. at 116. The D.C. Circuit held that
“[t]his reasoning misperceives the theory of standing at issue in Raines”:
The plaintiffs in that case did not contend, as the Representatives
imply, that their injury was the result of a procedural defect in the
3

passage of the Line Item Veto Act. Rather, their view was that
once the Act became law, it “alter[ed] the constitutional balance of
powers between the Legislative and Executive Branches,” to their
detriment. . . . More to the point, it is exactly the position taken by
the Representatives here: Their injury, they say, is the result of the
President’s successful effort “to usurp Congressional authority by
implementing a program, for which [he] has no constitutional
authority, in a manner contrary to the Constitution.” Applying
Moore, this court presumably would have found that injury
sufficient to satisfy the standing requirement; after Raines,
however, we cannot.
Id. at 116 (citation omitted). Thus, while plaintiffs’ assertion of an Article III injury from their
alleged inability to vote on an issue may have had some vitality prior to Raines, it is now clear
that such injury fails to fall within the exception in Raines for the “nullification” of a
congressional vote. 2 See id.; see also Alaska Legislative Council v. Babbitt, 181 F.3d 1333, 1338
(D.C. Cir. 1999) (“What we see instead is, at most, a claim that the Lands Conservation Act . . .
had the effect of rendering the Alaska Legislature unable to control hunting and fishing on

2

It is interesting to note that, in their attempt to distinguish the present case from Raines,
plaintiffs point to Chenoweth and Kucinich v. Bush, 236 F. Supp. 2d 1 (D.D.C. 2002), as cases in
which, assertedly unlike the present case, “legislative efforts have failed.” Opp. at 16. However,
the unsuccessful legislative efforts in those cases cannot be distinguished from the efforts of
plaintiffs here with regard to Libya. In both Chenoweth and Kucinich, plaintiffs had attempted to
overturn an action by the President that allegedly was in excess of his statutory or constitutional
authority, and, in both cases, such efforts were unsuccessful. See Chenoweth, 181 F.3d at 113;
Kucinich, 236 F. Supp. 2d at 6. Indeed, in Kucinich, “President Bush did not submit the question
of treaty termination to the Senate or the House” before he gave his notice to terminate the ABM
Treaty. Kucinich, 236 F. Supp. 2d at 3. Accordingly, the legislative effort in Kucinich took the
form of a resolution, offered by congressman Kucinich some six months after the President had
given notice of his intent to withdraw from the treaty, to require the President to “respect the
Constitutional role of Congress and seek the approval of Congress for the withdrawal.” Id. at 6.
That Resolution parallels the effort made by congressman Kucinich here with regard to Libya, as
he similarly had proffered a resolution that would “direct[] the President, pursuant to section 5(c)
of the War Powers Resolution, to remove the United States Armed Forces from Libya.” 157
Cong. Rec. H4021 (daily ed. June 3, 2011) (defeating H.R. Con. Res. 51). As defendants have
explained, that resolution, like the resolution in Kucinich, was unsuccessful. See id.
Accordingly, as in Kucinich, plaintiffs’ allegations of injury do not constitute proof that their
votes had been nullified. “Rather, ‘[t]hey simply lost that vote.’” Kucinich, 236 F. Supp. 2d at 7
(quoting Raines, 521 U.S. at 824, 117 S. Ct. at 2320).
4

federal lands within the State. If for these reasons the individual legislators cannot enact valid
laws . . ., or cannot enact legislation implementing the Act . . ., their loss (or injury) is a loss of
political power, a power they hold not in their personal or private capacities, but as members of
the Alaska State Legislature.”) (internal citation omitted); Kucinich v. Bush, 236 F. Supp. 2d 1, 6
(D.D.C. 2002) (“As their complaint characterizes it, ‘plaintiffs have sustained a grievous
institutional injury by being deprived of their constitutional right and duty to participate in treaty
termination.’ This alleged injury mirrors that claimed in Raines, where the congressmen argued
they were ‘divest[ed] . . . of their constitutional role in the repeal of legislation.’ It is, effectively,
the same institutional injury as in Raines, where the Line Item Veto Act allegedly ‘alter[ed] the
constitutional balance of powers between the Legislative and Executive Branches.’”) (internal
citations omitted).
Putting the historical debate aside, however, the controlling decision on the institutional
injury alleged by plaintiffs here remains Campbell v. Clinton. Plaintiffs acknowledge the
“contrary result” in that case, and they focus instead on their disagreement with the decision. 3
See, e.g., Opp. at 18-19 (disputing the D.C. Circuit’s analysis of the nullification exception); id.
at 19 (arguing that standing “should not depend on whether judges believe Congress could fight
back in other ways”); id. at 20 (disputing the availability of appropriations remedies as an
effective option for Congress); id. (“[T]he Campbell majority’s interpretation of Raines . . . ‘is
tantamount to a decision abolishing legislative standing’ to challenge executive intrusion on
Congress’s war powers.”); id. at 21 (citing Judge Randolph’s concurrence in Campbell for the
proposition that Campbell is inconsistent with Chenoweth); id. (arguing that the “judges in
3

When criticizing the panel decision, plaintiffs occasionally reference “Defendants’ use of
Campbell.” See, e.g., Opp. at 19. However, plaintiffs do not explain how defendants’ “use of
Campbell” differs in any manner from the reasoning of the D.C. Circuit in that case.
5

Campbell . . . were divided on the reasons for the lack of standing”); id. at 21 n.8 (noting Judge
Silberman’s “reli[ance] . . . on the writing of John Yoo”).
Plaintiffs make only one passing attempt at distinguishing Campbell’s binding effect on
their assertion of legislative standing, arguing that “Campbell . . . did not involve . . . claims
ranging from treaty violations to misuse of appropriated funds 4 to the existence of a new stated
and sweeping policy on interventions.” Opp. at 21. But plaintiffs do not explain how the
existence of additional claims would change this Court’s analysis of their allegations of injury,
particularly when plaintiffs expressly acknowledge that even these additional claims are based on
the same asserted injury to their legislative interests. See id. (“By ignoring the limiting language
of the treaty, the President is nullifying the votes of the legislative branch.”); see also Raines,
521 U.S. at 820, 117 S. Ct. at 2318 (“In the light of this overriding and time-honored concern
about keeping the Judiciary’s power within its proper constitutional sphere, we must put aside
the natural urge to proceed directly to the merits of this important dispute and to ‘settle’ it for the
sake of convenience and efficiency. Instead, we must carefully inquire as to whether appellees
have met their burden of establishing that their claimed injury is personal, particularized,
concrete, and otherwise judicially cognizable.”) (emphasis added); Campbell, 203 F.3d at 23
(cautioning against conflating standing with the merits of a claim). Plaintiffs in Campbell
presented different claims and a different factual context than those presented in Raines, but the
“wholly abstract and widely dispersed” institutional injury asserted in these, and other similar,
cases remains the same—one that repeatedly has been held to be insufficient to establish
standing to sue. See Raines, 521 U.S. at 829, 117 S. Ct. at 2322. The same result is thus

4

The D.C. Circuit has, in fact, rejected legislative standing in a case involving a claim pursuant
to the Anti-Deficiency Act, 31 U.S.C. § 1301 et seq. See Chenoweth, 181 F.3d at 113.
6

commanded here, where plaintiffs do not dispute that their allegations of injury track those
previously foreclosed by the D.C. Circuit in Campbell.
B.

Plaintiffs’ Alleged Injury in Their Capacities as Taxpayers Does Not
Establish Standing to Sue

Plaintiffs next dispute defendants’ assertion that plaintiffs lack standing to sue as
taxpayers. According to plaintiffs, it is “difficult to discern” the “professed clarity” in the
taxpayer standing case law, in light of the fact that “the two most recent [Supreme Court] cases
were decided by 5-4 decisions,” and both cases turned on “small details.” Opp. at 22.
Nevertheless, regardless of the narrowness of the majority in the opinions, the decisions and their
subsequent interpretation by the D.C. Circuit remain binding on this Court. Plaintiffs do not
dispute that their taxpayer standing arguments ask this Court to be the first to recognize taxpayer
standing for claims, unrelated to the Establishment Clause, against the alleged expenditure of
funds by the Executive Branch in violation of legislative command. In light of the binding
authority, that is not a result that this Court should permit.
As an initial matter, plaintiffs argue in their Opposition that they have satisfied the first
prong of the taxpayer standing analysis in that they are entitled to challenge the actions of the
Executive Branch through a taxpayer lawsuit. See Opp. at 23-25. In so doing, plaintiffs purport
not to dispute the requirement that, for taxpayer standing, “Congress must ‘expressly authorize[]
or appropriate[] funds for’ the action that is challenged.” Opp. at 24 (citing Mem. in Supp. of
Defs.’ Mot. to Dismiss at 10). According to the Opposition, plaintiffs feel that this requirement
is satisfied simply because “Congress has expressly provided appropriations for the President to
carry out military actions through the Overseas Contingency Operations fund and other statutes.”
Id. This confusing (and apparent change in) position cannot extend, however, to an assertion by
plaintiffs that there is an express authorization or appropriation for the use of these funds in this
7

particular context, as plaintiffs expressly claim in the Appropriations Clause count of their
Complaint that “the Administration is barred from using the Overseas Contingency Operations
(OCO) funds, which are expressly limited for use in operations directly related to the global war
on terror.” Compl. ¶ 201. As the D.C. Circuit held in In re Navy Chaplaincy 5, “that contention
directly undermines any claim to taxpayer standing.” 534 F.3d 756, 762 (D.C. Cir. 2008).
In any event, even if plaintiffs are now alleging, in contrast to their Appropriations
Clause claim, that there is generally available funding for overseas operations from which the
Executive Branch is entitled to draw on a discretionary basis to support operations, taxpayer
standing does not “encompass discretionary Executive Branch spending.” Id. As the D.C.
Circuit has recognized, the alternative approach would remove all limitations on the taxpayer
standing doctrine: “‘Because almost all Executive Branch activity is ultimately funded by some
congressional appropriation, extending the Flast exception to purely executive expenditures
would effectively subject every federal action—be it a conference, proclamation or speech—to
Establishment Clause challenge by any taxpayer in federal court.’” Id. (quoting Hein v. Freedom
from Religion Found., Inc., 551 U.S. 587, 610, 127 S. Ct. 2553, 2569 (2007) (Alito, J.)); see also
Hein, 551 U.S. at 607, 127 S. Ct. at 2567 (Alito, J.) (distinguishing Bowen v. Kendrick, 487 U.S.
589, 108 S. Ct. 2562 (1988), on the ground that the statute in Bowen “not only expressly
authorized and appropriated specific funds for grantmaking, it also expressly contemplated that
some of these moneys might go to projects involving religious groups”). Accordingly, plaintiffs
5

Plaintiffs’ attempt to distinguish In re Navy Chaplaincy is misguided. Plaintiffs apparently
argue that the case is distinguishable because the plaintiffs there “were challenging the statute
funding all chaplains while contesting the regulatory program.” Opp. at 25 n.10. Even assuming
that this assertion, if true, were relevant to the applicability of the decision to the present case,
plaintiffs’ assertion appears to misunderstand the facts of that decision. See In re Navy
Chaplaincy, 534 F.3d at 762 (“And plaintiffs . . . obviously do not contend that congressional
legislation establishing the Navy Chaplaincy itself violates the Establishment Clause; they
merely want the Navy to operate the Chaplain Corps differently.”).
8

are foreclosed from asserting taxpayer standing to challenge actions of the Executive that are not
only alleged to be discretionary, but are in fact alleged in the Complaint to be contrary to the
intent of Congress in appropriating such funds.
Plaintiffs’ assertion of taxpayer standing fares no better under the second prong of the
Flast inquiry, under which the Supreme Court has “‘declined to lower the taxpayer standing bar
in suits alleging violations of any constitutional provision apart from the Establishment Clause.’”
Ariz. Christian School Tuition Org. v. Winn, 131 S. Ct. 1436, 1445 (Apr. 4, 2011) (quoting Hein,
551 U.S. at 609, 127 S. Ct. at 2569 (Alito, J.)). Although plaintiffs purportedly recognize how
“narrow” this exception is, they promptly invite this Court to expand it to encompass lawsuits
brought by members of Congress challenging Executive Branch actions under the War Powers
Clause (and, apparently by association, every other claim presented in the Complaint).
The justification for such an expansion is based on such broad reasoning that it is
apparent why the Supreme Court has confined the exception to taxpayer standing to the facts of
Flast. Plaintiffs assert that the exception should be expanded to the War Powers Clause to
prevent “the government from acting against its citizens’ interests and then leaving them with the
bill.” Opp. at 26-27. Indeed, plaintiffs suggest that the Establishment and the War Powers
Clauses should be viewed similarly because “[i]n cases under both clauses, a taxpayer seeks to
enforce a crucial constitutional protection by enjoining the spending of money to further an
unconstitutional goal.” Id. at 28.
It is difficult to see what limitation such an expansion would have, as a plaintiff could
justify expansion of the exception simply by asserting the importance of the constitutional
protection at issue. That is an expansion that is directly contrary to the warnings of the Supreme
Court and the D.C. Circuit, which repeatedly have emphasized that the narrow limitations of the

9

taxpayer standing exception are confined to the facts of Flast and companion cases. See, e.g., In
re Navy Chaplaincy, 534 F.3d at 762 (“Although Hein did not eliminate the Flast exception to
the bar against taxpayer standing, the case forcefully emphasized the exception’s extremely
limited contours: ‘It is significant that, in the four decades since its creation, the Flast exception
has largely been confined to its facts.’”); cf. New Jersey Peace Action v. Obama, 2009 WL
1416041, *4 (D.N.J. 2009) (unpublished) (“As to [plaintiffs’] desire to avoid paying taxes ‘for an
unconstitutional war,’ that injury has been roundly dismissed by the Supreme Court.”). In light
of the fact that courts have so far refused to expand taxpayer standing to encompass War Powers
Clause challenges for good reason, this Court should not accept plaintiffs’ invitation to be the
first to do so. See Pietsch v. The President of the United States, 434 F.2d 861, 863 (2d Cir. 1970)
(“Although more than one purpose has been attributed to Congress’ war power, that power has
never been seen as a ‘specific . . . limitation’ upon the appropriation power.”); Pietsch v. Bush,
755 F. Supp. 62, 67 (E.D.N.Y. 1991) (holding that challenge based on Article I, Section 8, clause
11 does not involve “the taxing and spending clause of the United States Constitution”).
It is also important to be mindful of the context in which plaintiffs seek such an
expansion to the historical application of the Flast exception. In Raines, the Supreme Court
recognized that the plaintiff members’ attempt to assert standing to challenge the actions of the
Executive “at this time and in this form [wa]s contrary to historical experience.” 521 U.S. at
829, 117 S. Ct. at 2232. And the D.C. Circuit has “emphasiz[ed] the separation-of-powers
problems inherent in legislative standing.” Campbell, 203 F.3d at 21. Plaintiffs would have this
Court ignore these concerns, effectively mooting Raines and its progeny, by permitting
congressional plaintiffs to have taxpayer standing to litigate their disputes with the Executive in

10

federal court. After all, one would assume that every member of Congress is also a taxpayer.
Such an end run around the Supreme Court’s opinion in Raines should not be contemplated.
II.

PLAINTIFFS’ WAR POWERS CHALLENGES PRESENT NON-JUSTICIABLE
POLITICAL QUESTIONS
Plaintiffs’ war powers challenges ask this Court to define the limits of the President’s

discretionary war powers authority, decide whether this authority is impacted by two
international instruments, and, as a consequence, order the United States to withdraw
immediately from any involvement in multilateral operations in Libya in contravention of the
President’s past statements in support of the operations. The scope of these issues, and the relief
requested, is striking in its implications for the balancing of constitutional war powers that, as
plaintiffs do not seriously dispute, are committed to the political branches. Nevertheless, relying
on the D.C. Circuit’s decision in El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836
(2010) (en banc), plaintiffs assert that these challenges present a “‘purely legal issue’ that is not
barred by the political question doctrine” and therefore do not require this court to “‘reconsider[]
the wisdom of discretionary decisions made by the political branches.’” 6 Opp. at 30 (quoting ElShifa, 607 F.3d at 842).
The difficulty with plaintiffs’ analysis is that it simply assumes that their war powers
challenges fall on the “purely legal” side of the scale identified by the Court in El-Shifa. See,
e.g., Opp. at 35 (“[T]his case presents only the legal question of ‘whether the government had the
legal authority to act.’”). However, as the D.C. Circuit has recognized, the issue is not so simple.

6

To the extent plaintiffs are suggesting that El-Shifa purported to overturn or ignore the factors
that have traditionally been applied by courts to determine the existence of a political question,
that assertion is mistaken. Indeed, the court in El-Shifa cited the factors from Baker v. Carr, 369
U.S. 186, 82 S. Ct. 891 (1962), and applied them in holding that a political question existed in
that case. 607 F.3d at 841, 845.
11

The balancing of the constitutional war powers is not transformed into a “purely legal” issue
simply because Congress has attempted to capture the balance in statutory form. Indeed, as the
D.C. Circuit recognized in El-Shifa, the mere fact that political judgments are captured in
statutory form do not remove such judgments from the category of “‘decisions of a kind for
which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to
belong in the domain of political power not subject to judicial intrusion or inquiry.’” 7 El-Shifa,
607 F.3d at 843 (quoting People’s Mojahedin Org. of Iran v. United States Dep’t of State
(“PMOI”), 182 F.3d 17, 23 (D.C. Cir. 1999)); see also Zivotofsky v. Sec’y of State, 571 F.3d
1227, 1233 (D.C. Cir. 2009) (“That Congress took a position on the status of Jerusalem and gave
Zivotofsky a statutory cause of action in an effort to make good on its pronouncement is of no
moment to whether the judiciary has authority to resolve this dispute between the political
branches.”), cert. granted, 131 S. Ct. 2897 (May 2, 2011).
Indeed, plaintiffs do not dispute that the President has some degree of independent
constitutional authority in the context of the war powers, as is similarly true with Congress. See
Campbell, 203 F.3d at 27 (Silberman, J., concurring). Thus, in presenting their dispute over the
proper allocation of these powers, plaintiffs do not simply ask this Court to decide the meaning
of statutory terms; rather, plaintiffs “would substitute [this Court’s] judgment for the President’s
as to the point at which” his powers should be exercised. See id. at 27. Indeed, rather than “[a]
simple reading of the constitutional text,” this Court would be required to balance the President’s
7

Plaintiffs point to Kucinich v. Bush, 236 F. Supp. 2d 1, as an example of a case involving a
challenge “to policy choices rather than legal authority.” Opp. at 38. But it is entirely unclear
why plaintiffs’ opposition to the President’s withdrawal from a treaty in Kucinich is any more
policy-oriented than plaintiffs’ opposition to the President’s decision to support multilateral
operations in Libya. After all, plaintiffs in both cases assert that the Constitution specifically
requires consultation with Congress before such action may be valid. Plaintiffs cannot seriously
contend than one case involves “policy” while the other is purely “legal” in light of the similarity
of the claims in each.
12

authority with that of the legislature in “a structural analysis of the political branches’ respective
roles.” Ange v. Bush, 752 F. Supp. at 513 n.2, 514 n.4. That analysis thus necessarily would
limit the respective discretion of one of the branches in an area “where decisions are made based
on political and policy considerations” in times when circumstances frequently require
immediate action. See id. at 513.
Plaintiffs’ argument also ignores the broad scope of their requested remedy. Cf. AlAulaqi v. Obama, 727 F. Supp. 2d 1, 47-48 (D.D.C. 2010). Plaintiffs do not ask this Court to
merely define “hostilities” or “war” within their statutory and constitutional contexts. They also
request that, as a result of such a holding, the Court issue an order “to suspend military
operations in Libya absent a declaration of war from Congress.” Compl. at 36. Thus, in addition
to construing the proper allocation of the war powers, the Court would then need to determine
what aspects of United States involvement in Libya fall within plaintiffs’ request for an end to
“military operations,” and would command that all such “operations” immediately end. In light
of the damage to foreign relations that would result from such an order, as well as the fact that it
is entirely uncertain and unknowable whether Congress as a whole actually would desire such a
remedy (particularly in light of the fact that Congress has so far refused to pass any of the
proposed legislation that would defund the war or otherwise require withdrawal), it is apparent
that any decision as to the proper remedy would involve a political issue that should be left to the
political branches for resolution. Cf. Crockett v. Reagan, 558 F. Supp. 893, 899 (D.D.C. 1982).
This conclusion is magnified by the lack of judicially manageable standards to evaluate
plaintiffs’ claims and the “underlying policies” that they purportedly challenge. See Compl. ¶
178. Indeed, this Court “could not decide this question without first fashioning out of whole
cloth some standard for when military action is justified.” El-Shifa, 607 F.3d at 845. Contrary to

13

the conclusion of the majority of courts in this district that have considered the issue 8, plaintiffs
argue that this Court is equipped to decide the meaning of “war” and “hostilities” in the context
of the war powers. See Opp. at 32-34. However, as Judge Silberman noted in Campbell, the
cases that plaintiffs cite for this proposition did not directly decide, as necessary to their
holdings, “whether there was a war as the Constitution uses that word, but only whether a
particular statutory or contractual provision was triggered by some instance of fighting.” 203
F.3d at 26 (Silberman, J., concurring) (citing Bas v. Tingy, 4 U.S. (4 Dall.) 37, 1 L. Ed. 731
(1800)); see also id. at 27 n.2 (“Judge Tatel’s reliance on the Prize Cases as an example of the
Court concluding a war exists is misplaced because the Court itself did not label the Civil War
such, but instead deferred to the President’s determination that the country was at war.”); id. at
25, 25 n.1 (noting that in Mitchell v. Laird, 488 F.2d 611, 614 (D.C. Cir. 1973), the language
discussing whether the court could determine that a war existed was dicta as the court ultimately
held the issue to be a political question and deferred to the president’s discretionary authority
over such issues). Indeed, plaintiffs do not point to any case where a court has rendered a
decision on the merits as to the precise allocation of the war powers, as defined by the
Constitution and construed by the War Powers Resolution, in order to overturn the actions of the
8

Ultimately, plaintiffs would have this Court ignore the historical precedent on the political
question doctrine in this context based upon their belief that the D.C. Circuit in El-Shifa
overruled such precedent sub silentio. See Opp. at 35-37. Such a conclusion is not one that is
typically adopted by the courts. See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1,
18, 120 S. Ct. 1084, 1096 (2000) (“This Court does not normally overturn, or so dramatically
limit, earlier authority sub silentio.”). Contrary to plaintiffs’ assertion, the D.C. Circuit did not
address whether Judge Silberman’s or Judge Tatel’s concurrence should be binding on the
applicability of the political question doctrine in this context. Instead, the majority opinion cited
language from Judge Tatel’s concurrence to support the standard of review that would govern.
See El-Shifa, 607 F.3d at 842. It certainly would be unusual for the D.C. Circuit to have held,
sub silentio, all war powers challenges justiciable in the standard of review discussion of a
decision that did not itself involve the war powers and ultimately found the claims presented in
that case to be unreviewable. Plaintiffs’ focus on the standard of review in El-Shifa, rather than
the holding, is notable.
14

Executive in this context. That is a critical distinction, as the political question here is presented
not by the relevant language standing alone in a vacuum but by the difficulty presented when the
judiciary enters into the political debate and attempts to construe those terms within their present
constitutional and statutory contexts.
Plaintiffs do not contest defendants’ assertion about the tremendous harm to foreign
relations that would be posed by multifarious pronouncements on the commitment of the United
States in support of multilateral operations in Libya. See Mem. in Supp. of Defs.’ Mot. to
Dismiss at 20-22. Instead, they assert that these consequences should be irrelevant because “this
case will not require the Court to contradict the President’s pronouncements regarding the impact
of Gaddafi’s behavior on the region or the importance of the American mission,” as the court
will not be considering whether the involvement of the United States in Libya “is wise American
policy.” 9 Opp. at 34-35. Of course, as Judge Silberman recognized in Campbell, that purported
distinction would be lost on allies should this Court rule that United States participation in
multilateral operations in Libya is “illegal” and order the immediate withdrawal of United States
support. See Campbell, 203 F.3d at 28 (“A pronouncement by another branch of the U.S.
government that U.S. participation in Kosovo was ‘unjustified’ would no doubt cause strains
within NATO.”). This Court should not risk such a result in light of the political nature of

9

Plaintiffs’ contention that they do not contest the underlying policy decision to support
multilateral operations in Libya is also belied by plaintiffs’ Opposition, the introduction to which
contains policy arguments in opposition to United States involvement. See Opp. at 2-3
(“[C]oncerns have been raised over radical Islamic elements in the rebel forces . . . .”), 3
(“[R]eports in the last week raise concerns that the United States previously assisted the Libyan
Government and Gaddafi in capturing dissidents and turning them over to the regime for torture,
including rendition cases.”). These arguments demonstrate the lack of clarity in plaintiffs’
assertion that they are not raising policy disagreements but are instead simply seeking a legal
determination.
15

plaintiffs’ request, as well as their abilities as legislators to take action without this Court’s
involvement in this inherently political dispute.
III.

PLAINTIFFS’ THIRD AND FOURTH CLAIMS DO NOT PRESENT AN
ARTICLE III CASE OR CONTROVERSY
As defendants have explained, plaintiffs’ third and fourth claims, entitled “U.N. Security

Council Resolution” and “North Atlantic Treaty,” do not present an independent case or
controversy that is suitable for resolution by this Court. In their Opposition, plaintiffs appear to
misunderstand the basis for defendants’ argument. Defendants do not dispute the fact that, in
their Complaint, plaintiffs claim that, if interpreted in the manner that they propose, U.N.
Security Council Resolution 1973 and the North Atlantic Treaty would not provide the Executive
with independent authority to support multilateral operations in Libya. See Compl. at 35-36
(requesting that the Court enter an order “declaring unconstitutional the policy that the President
may unilaterally extend the North Atlantic Treaty . . . without satisfying the constitutional
process of the United States” or that “a U.N. resolution can negate the obligation of the President
to seek approval of a war or military operations in countries like Libya” ).
The injury that plaintiffs allege in their Complaint, however, is not a result of any
particular interpretation of these instruments. Instead, plaintiffs continue to allege that they were
injured when their “vote was nullified” by the President’s purported failure to consult with
Congress pursuant to the War Powers Resolution or seek a declaration of war from Congress
pursuant to the War Powers Clause. See Opp. at 40 (“By violating the U.S. Constitution in not
seeking or obtaining Congress’s approval prior to committing [the] U.S. military to a foreign
war, Defendants have completely nullified the value of Plaintiffs’ voting power.”); see also id. at
41 (arguing that the injury would be redressed by a declaration that there was an engagement of
military forces “without congressional authorization”). Indeed, plaintiffs do not assert that these
16

international instruments require congressional authorization independent of their constitutional
and statutory claims, such that a decision in their favor would remedy their institutional injury. 10
As such, the instruments remain entirely irrelevant to the harm alleged unless and until
defendants were to assert them as some sort of justification that permits the challenged action in
the absence of congressional authorization, i.e. until defendants were to assert these claims as an
affirmative defense to plaintiffs’ claims regarding the authorities that purportedly mandate
consultation.
If defendants were not to assert these instruments as some sort of independent basis for
executive authority, then plaintiffs’ request for a decision as to their scope would be a request for
a purely advisory opinion. If defendants do assert the instruments as defenses to plaintiffs’ war
powers challenges, then their proper interpretation would then be at issue in this case in deciding
the validity of the defenses. See Mem. in Supp. of Defs.’ Mot. to Dismiss at 23 (citing cases).
Accordingly, the instruments are not properly asserted as causes of action separate and apart
from plaintiffs’ remaining claims.

10

The only suggestion of an affirmative claim for congressional consultation under either one of
these instruments is plaintiffs’ argument that Article 11 of the North Atlantic Treaty states that
the Treaty “shall be ratified and its provisions carried out by the Parties in accordance with their
respective constitutional processes.” Opp. at 39. As is apparent from this language, however,
this “claim” would be entirely derivative of plaintiffs’ claim pursuant to the War Powers Clause
because this Court would first have to find that the Constitution mandates congressional
authorization for involvement in Libya. Of course, in the event of such a holding, it would be
unnecessary for the Court to opine on the scope of the North Atlantic Treaty unless it were
asserted as an independent basis for the Executive to act regardless of the constitutional
requirements. Thus, in the absence of the Treaty being asserted as a defense to such a holding,
the “claim” would remain a request for an advisory opinion.
17

IV.

SHOULD THIS COURT REEXAMINE LEGISLATIVE STANDING
PRECEDENT, PRUDENTIAL CONSIDERATIONS WOULD STILL COUNSEL
AGAINST RESOLVING PLAINTIFFS’ CLAIMS ON THEIR MERITS
Whether styled as remedial discretion or ripeness, courts traditionally have refused to

provide relief in cases such as this one due to the prudential considerations counseling against
such a remedy. See Mem. in Supp. of Defs.’ Mot. to Dismiss at 23-25. Typically, as defendants
have explained, this Circuit has not needed to rely on such considerations following Raines
because the Supreme Court’s decision generally foreclosed legislative standing such that the
separation of powers concerns presented by legislator lawsuits were not at issue. However, as
plaintiffs’ standing discussion attempts to return to the era prior to Raines in arguing that this
Court should find standing in the present case, it is important to note that such a reversal would,
in any event, not lead to the consideration of their claims on the merits. As the D.C. Circuit has
explained, “[w]hatever [past caselaw] gives the Representatives under the rubric of standing, it
takes away as a matter of equitable discretion.” Chenoweth, 181 F.3d at 116. Plaintiffs may
wish to reenter an age in which legislative plaintiffs were able to establish standing to sue in this
Circuit, but that was not an age that would have provided them with a successful outcome in
light of the prudential considerations counseling against the consideration of plaintiff members’
claims. 11
Plaintiffs raise several objections to the argument that this Court, if it were for some
reason to find plaintiffs’ claims justiciable, should still dismiss the lawsuit. None of these
arguments has merit. As an initial matter, plaintiffs suggest that “it is not clear that the
11

Plaintiffs suggest that they do not request a “blunt injunctive decision” because “[o]f
Plaintiffs’ requested relief, only one claim is for an injunction . . . .” Opp. at 42. It is unclear
why the number of paragraphs describing plaintiffs’ requested relief matters as long as plaintiffs
are, in fact, requesting such relief. See Compl. at 36 (“Order all injunctive relief to end the
violations alleged above, including but not limited to an order to suspend military operations in
Libya . . . .”).
18

Administration would accept the right of Congress to order a halt to operations,” and that the
existence of a potential legislative remedy is irrelevant because “[o]nce engaged in a war, there
are a host of reasons why Congress may not wish to cut off funds.” Opp. at 42. However, the
speculative possibility that a presidential administration may refuse to comply with a
congressional command did not preclude past courts from refusing to exercise discretion,
particularly when such an eventuality, if it came to pass, may pose different prudential
considerations. See, e.g., Lowry v. Reagan, 676 F. Supp. 333, 340-41 (D.D.C. 1987). And that
is not the case here, in any event, where Congress as a whole has not passed legislation that
could encounter the hypothetical opposition posed by plaintiffs. Moreover, the assertion that
Congress may not “wish to cut off funds” for reasons other than opposing United States
involvement in Libya is not determinative of the prudential considerations counseling against
judicial intervention. Indeed, the remedies available may not be “politically popular for
legislators.” Ange, 752 F. Supp. at 514. Nevertheless, that assertion does not demonstrate that
the remedies are unavailable. See id.
Finally, plaintiffs assert that “nobody stands to suffer a more concrete injury than
Plaintiffs” in the present case and that consideration of the merits of their claims is therefore
necessary. Opp. at 43. Such has never been the standard of judicial review of the merits of one’s
claims, however. Indeed, when applying the remedial discretion doctrine in the past, the D.C.
Circuit has recognized that “the separation-of-powers concerns informing the doctrine . . . are,
upon reflection, entirely unaffected by the ability of a private plaintiff to bring suit.” Melcher v.
Fed. Open Mkt. Comm., 836 F.2d 561, 564 (D.C. Cir. 1987); see also Ange, 752 F. Supp. at 518
n.8.

19

CONCLUSION
For the foregoing reasons, defendants respectfully request dismissal of this action.

Dated: September 19, 2011

Respectfully submitted,
TONY WEST
Assistant Attorney General
RONALD C. MACHEN JR.
United States Attorney
IAN HEATH GERSHENGORN
Deputy Assistant Attorney General
JOSEPH H. HUNT
Director, Federal Programs Branch
VINCENT M. GARVEY
Deputy Branch Director
/s/ Eric Womack
ERIC R. WOMACK, IL Bar No. 6279517
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., NW
Washington, DC 20001
Tel: [phone]
Fax: [phone]
Counsel for Defendants

20

CERTIFICATE OF SERVICE
I hereby certify that on September 19, 2011, I caused a true and correct copy of the
foregoing Reply to be served on plaintiffs’ counsel electronically by means of the Court’s ECF
system.

/s/ Eric Womack
ERIC R. WOMACK