KUCINICH et al v. OBAMA et al

Filing 8

MOTION to Dismiss by ROBERT GATES, BARACK OBAMA (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(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)

MEMORANDUM IN SUPPORT
OF DEFENDANTS’ MOTION TO DISMISS

TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................1
BACKGROUND .............................................................................................................................2
ARGUMENT ...................................................................................................................................3
I.

PLAINTIFF MEMBERS’ CHALLENGES TO THE INVOLVEMENT OF THE
UNITED STATES IN LIBYA ARE NON-JUSTICIABLE ................................................3
A.

Plaintiffs Have Not Suffered a Cognizable Injury-in-Fact ......................................4
1.

2.

B.

Plaintiffs’ Standing to Sue as Legislators Has Been Foreclosed
by the Supreme Court and the D.C. Circuit .................................................5
Plaintiffs’ Assertion that They Have Standing as Taxpayers to
Challenge the Actions of the Executive on Grounds Other than the
Establishment Clause Is Meritless ...............................................................9

As Numerous Courts of This Circuit Have Recognized, Plaintiffs’ War
Powers Claims Present Non-Justiciable Political Questions .................................13
1.

2.

II.

Plaintiffs’ War Powers Claims Lack Judicially Manageable or
Discoverable Standards for Resolution ......................................................18

3.

C.

The Constitution Commits the War Powers to the Political
Branches .....................................................................................................15

A Great Potential for Damage to Our Foreign Relations Exists
from Multifarious Pronouncements Contradicting the Executive
Branch’s Decision to Support Multilateral Operations in Libya ...............20

Plaintiffs’ Third and Fourth Claims Fail to Present a Case or Controversy
Under Article III ....................................................................................................22

EVEN ASSUMING THAT THIS CASE WERE JUSTICIABLE UNDER
ARTICLE III, PRUDENTIAL CONSIDERATIONS COUNSEL AGAINST THE
EXERCISE OF JURISDICTION OVER PLAINTIFFS’ CLAIMS..................................23

CONCLUSION ..............................................................................................................................25

i

TABLE OF AUTHORITIES
FEDERAL CASES
Alaska Legislative Council v. Babbitt,
181 F.3d 1333 (D.C. Cir. 1999) ................................................................................................ 6
Allen v. Wright,
468 U.S. 737, 104 S. Ct. 3315 (1984) ....................................................................................... 4
Am. Jewish Congress v. Corp. for Nat'l & Cmty. Serv.,
399 F.3d 351 (D.C. Cir. 2005) ................................................................................................ 11
Am. Jewish Congress v. Vance,
575 F.2d 939 (D.C. Cir.1978) ................................................................................................. 10
*Ange v. Bush,
752 F. Supp. 509 (D.D.C. 1990) ...................................................................................... passim
*Ariz. Christian School Tuition Org. v. Winn,
131 S. Ct. 1436 (Apr. 4, 2011)................................................................................................ 11
Baker v. Carr,
369 U.S. 186, 82 S. Ct. 691 (1962) ............................................................................. 13, 14, 15
Bancoult v. McNamara,
445 F.3d 427 (D.C. Cir. 2006) ................................................................................................ 14
Calderon v. Ashmus,
523 U.S. 740, 118 S. Ct. 1694 (1998) ..................................................................................... 23
*Campbell v. Clinton,
203 F.3d 19 (D.C. Cir. 2000) ........................................................................................... passim
*Chenoweth v. Clinton,
181 F.3d 112 (D.C. Cir. 1999) ........................................................................................ 6, 7, 24
Coffman v. Breeze Corp.,
323 U.S. 316, 65 S. Ct. 298 (1945) ......................................................................................... 23
Conyers v. Reagan,
578 F. Supp. 324 (D.D.C. 1984) ............................................................................................. 24
Crockett v. Reagan,
558 F. Supp. 893 (D.D.C. 1982), aff'd, 720 F.2d 1355 (D.C. Cir.1983) ........................ passim

ii

DaimlerChrysler Corp. v. Cuno,
547 U.S. 332, 126 S. Ct. 1854 (2006) ..................................................................................... 11
Dellums v. Bush,
752 F. Supp. 1141 (D.D.C. 1990) ............................................................................... 19, 23, 25
Doe I v. State of Israel,
400 F. Supp. 2d 86 (D.D.C. 2005) .................................................................................... 13, 14
Doe v. Bush,
323 F.3d 133 (1st Cir. 2003) ................................................................................................... 23
El-Shifa Pharm. Indus. v. United States,
607 F.3d 836 (D.C. Cir. 2010) .......................................................................................... 14, 15
*Flast v. Cohen,
392 U.S. 83, 88 S. Ct. 1942 (1968) .................................................................................. passim
Franklin v. Massachusetts,
505 U.S. 788, 112 S. Ct. 2767 (1992) ....................................................................................... 2
Goldwater v. Carter,
444 U.S. 996, 100 S. Ct. 553 (1979) ......................................................................... 6, 8, 17, 23
Haig v. Agee,
453 U.S. 280, 101 S. Ct. 2766 (1981) ..................................................................................... 14
Harisiades v. Shaughnessy,
342 U.S. 580, 72 S. Ct. 512 (1952) ......................................................................................... 15
Hein v. Freedom from Religion Found., Inc.,
551 U.S. 587, 127 S. Ct. 2553 (2007) ......................................................................... 10, 11, 12
Hwang Geum Joo v. Japan,
413 F.3d 45 (D.C. Cir. 2005) .................................................................................................. 17
Japan Whaling Ass'n v. Am. Cetacean Soc'y,
478 U.S. 221, 106 S. Ct. 2860 (1986) ............................................................................... 14, 17
Kucinich v. Bush,
236 F. Supp. 2d 1 (D.D.C. 2002) .................................................................................... 6, 8, 17
Lowry v. Reagan,
676 F. Supp. 333 (D.D.C. 1987) ........................................................................... 13, 19, 21, 24

iii

Lujan v. Defenders of Wildlife,
504 U.S. 555, 112 S. Ct. 2130 (1992) ....................................................................................... 4
*Mahorner v. Bush,
224 F. Supp. 2d 48 (D.D.C. 2002) ............................................................................ 3, 9, 10, 14
Nat’l Treasury Employees Union v. United States,
101 F.3d 1423 (D.C. Cir. 1996) ................................................................................................ 3
*In re Navy Chaplaincy,
534 F.3d 756 (D.C. Cir. 2008) .................................................................................... 10, 11, 12
New Jersey Peace Action v. Obama,
2009 WL 1416041 (D.N.J. 2009) (unpublished) ............................................................. passim
Newdow v. Eagen,
309 F. Supp. 2d 29 (D.D.C. 2004) .......................................................................................... 11
Pub. Citizen, Inc. v. Simon,
539 F.2d 211 (D.C. Cir. 1976) ................................................................................................ 10
*Raines v. Byrd,
521 U.S. 811, 117 S. Ct. 2312 (1997) .............................................................................. passim
Riegle v. Fed. Open Mkt. Comm.,
656 F.2d 873 (D.C. Cir. 1981) .......................................................................................... 16, 24
Sadowski v. Bush,
293 F. Supp. 2d 15 (D.D.C. 2003) .................................................................................... 13, 19
Sanchez-Espinoza v. Reagan,
568 F. Supp. 596 (D.D.C. 1983), aff'd, 770 F.2d 202 (D.C. Cir.1985) ........................... passim
Schneider v. Kissinger,
412 F.3d 190 (D.C. Cir. 2005) ................................................................................................ 19
Settles v. United States Parole Comm'n,
429 F.3d 1098 (D.C. Cir. 2005) ................................................................................................ 3
Swan v. Clinton,
100 F.3d 973 (D.C. Cir. 1996) .................................................................................................. 2
Swomley v. Watt,
526 F. Supp. 1271 (D.D.C.1981) ............................................................................................ 10

iv

Walker v. Cheney,
230 F. Supp. 2d 51 (D.D.C. 2002) .................................................................................. 6, 8, 24
CONSTITUTION & STATUTES
U.S. CONST. art. I, § 8 ............................................................................................................... 9, 11
U.S. CONST. art. I, § 8, cl. 11 .......................................................................................................... 2
U.S. CONST. art. I, § 9, cl. 7 ............................................................................................................ 2
42 U.S.C. § 1983 ............................................................................................................................. 3
42 U.S.C. § 1988 ............................................................................................................................. 3
50 U.S.C. §§ 1541-1548 ................................................................................................................. 2
LEGISLATIVE MATERIALS
157 Cong. Rec. H4021 (daily ed. June 3, 2011) ....................................................................... 8, 24
157 Cong. Rec. H4563 (daily ed. June 24, 2011) ..................................................................... 8, 24
157 Cong. Rec. H4769 (daily ed. July 8, 2011) ........................................................................ 8, 24
157 Cong. Rec. S1075 (daily ed. Mar. 1, 2011) ............................................................................. 8
H.R. Con. Res. 51, 112th Cong. (2011) .................................................................................... 8, 24
H.R. Res. 2219,112th Cong. (2011).......................................................................................... 8, 24
H.R. Res. 2278, 112th Cong. (2011)......................................................................................... 8, 24
S. Rep. No. 112-27 (June 29, 2011)................................................................................................ 8
S. Res. 85, 112th Cong. (2011) ....................................................................................................... 8
MISCELLANEOUS
Letter from President Obama to the Hon. John Boehner, Speaker,
U.S. H. of Rep. (Mar. 21, 2011) ..............................................................................................21
President Barack Obama, Address to the Nation on Libya (Mar. 28, 2011) .................................21

v

INTRODUCTION
On June 15, 2011, in the midst of ongoing congressional debate over United States
involvement in Libya, ten members of Congress filed the present lawsuit asking this Court,
through an order granting injunctive relief, to immediately “suspend military operations in
Libya.” As the Supreme Court and the courts of this Circuit have repeatedly held, this Court
lacks jurisdiction to entertain such an extraordinary request.
In Raines v. Byrd, the Supreme Court flatly rejected the standing of members of Congress
to sue in their legislative capacities. 521 U.S. 811, 117 S. Ct. 2312 (1997). Several years later,
the D.C. Circuit applied the holding of Raines in the context of a war powers challenge brought
by members of Congress in opposition to United States involvement in Kosovo. There the D.C.
Circuit expressly rejected the argument that an alleged violation of the War Powers Resolution or
the War Powers Clause of the Constitution satisfied the narrow exemption left for legislative
standing following Raines. Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000). In light of these
binding authorities, plaintiffs cannot allege a basis for standing in their capacities as legislators.
Plaintiffs also assert standing to sue as “taxpayers.” While plaintiffs purport to
“acknowledg[e]” decisions limiting such standing to the specific facts of prior Supreme Court
opinions, the express holdings of the Supreme Court, the D.C. Circuit, and this Court foreclose
taxpayer status as a basis for standing in the present case. These courts and others have
definitively rejected taxpayer standing for individuals raising challenges, unrelated to the
Establishment Clause, to Executive Branch action that is purportedly in violation of legislative
command.
Moreover, even if this Court were to create new exceptions to either of these settled
standing doctrines, plaintiffs’ challenges raise issues that have been recognized by numerous

courts in this Circuit to be inappropriate for judicial resolution. Accordingly, in light of the clear
lack of jurisdiction to review plaintiffs’ Complaint, defendants respectfully request that this
Court grant their Motion to Dismiss.
BACKGROUND
On June 15, 2011, ten members of the House of Representatives filed the present lawsuit
against the President 1 and the Secretary of Defense in their official capacities, seeking
“injunctive and declaratory relief to protect the Plaintiffs and the country from a stated policy . . .
whereby a president may unilaterally go to war in Libya and other countries.” See Compl. ¶¶ 1,
2. According to plaintiffs’ allegations in the Complaint, “[o]n March 19, 2011, at approximately
3:00 p.m. EDT, President Obama ordered U.S. forces to attack the armed government forces of
Libya.” Id. ¶ 31. The Complaint further alleges that “U.S[.] operations in Libya now include all
of the classic elements of a war,” which purportedly requires “a declaration of war from
Congress” and compliance with the War Powers Resolution, 50 U.S.C. §§ 1541-1548. Id. ¶¶ 32,
33, 35.
The Complaint raises five claims against the President and the Secretary of Defense,
including claims under Article I, Section 8, Clause 11 of the Constitution (“War Powers Clause”)
and the War Powers Resolution. See Compl. at 28-35. Plaintiffs also seek an opinion from this
Court as to the scope of U.N. Security Council Resolution 1973 and the North Atlantic Treaty, as
well as a declaration that the use of appropriated “funds . . . in Libya” violates the Appropriation
Clause of the Constitution, Article I, Section 9, Clause 7. See id. at 32-35. As a purported
1

Defendants note that the President is not technically a proper defendant to this action, as this
Court cannot order relief against the President in the performance of his official duties relating to
the ongoing operations in Libya, and there has been no waiver of sovereign immunity to permit
suit against the President pursuant to the Administrative Procedure Act. See Franklin v.
Massachusetts, 505 U.S. 788, 112 S. Ct. 2767 (1992); see also Swan v. Clinton, 100 F.3d 973,
976-80 (D.C. Cir. 1996).
2

consequence of their claims, plaintiffs ask that this Court grant wide-ranging injunctive relief
with respect to United States operations in Libya, including “an order to suspend military
operations.” Compl. at 36.
ARGUMENT 2
I.

PLAINTIFF MEMBERS’ CHALLENGES TO THE INVOLVEMENT OF THE
UNITED STATES IN LIBYA ARE NON-JUSTICIABLE
As this Court has emphasized, “[i]t is a fundamental axiom that pursuant to Article III of

the Constitution, federal courts are vested with the power of judicial review extending only to
‘Cases’ and ‘Controversies.’” Mahorner v. Bush, 224 F. Supp. 2d 48, 49 (D.D.C. 2002). This
limitation has been given effect by the judiciary through “‘a series of principles termed
‘justiciability doctrines,’ among which are standing[,] ripeness, mootness, and the political
question doctrine.’” Id. (quoting Nat’l Treasury Employees Union v. United States, 101 F.3d
1423, 1427 (D.C. Cir. 1996)). In the present case, “[a]n analysis of these ‘justiciable doctrines’
reveals beyond all doubt that this Court lacks subject matter jurisdiction to entertain the
plaintiff[s’] complaint because [plaintiffs are] unable to satisfy at least two of them, standing and
the political question doctrine.” Id. at 49. Moreover, even if plaintiffs’ claims were justiciable,
this Court should refuse to exercise its declaratory and injunctive powers over the present
dispute, as the relief that plaintiffs seek would upend the ongoing operations of the multilateral
2

Plaintiffs’ Complaint is unclear regarding the bases for jurisdiction and the waiver of sovereign
immunity for each of their claims, particularly with regard to their statutory claims. See Compl.
¶ 6. For example, plaintiffs apparently request an award of “damages and reasonable attorneys’
fees and costs . . . pursuant to 42 U.S.C. § 1988,” which is specifically limited to an award of
attorney’s fees for lawsuits brought pursuant to certain specified statutory provisions that are not
at issue here. See 42 U.S.C. § 1988(b) (permitting attorney’s fees in actions to enforce, among
other provisions, 42 U.S.C. § 1983, which has no application here, see Settles v. United States
Parole Comm’n, 429 F.3d 1098, 1104 (D.C. Cir. 2005)). Plaintiffs have not identified any
waiver of sovereign immunity that would permit them monetary “damages” in this case. See
Sanchez-Espinoza v. Reagan, 770 F.2d 202, 209 (D.C. Cir. 1985) (holding that War Powers
Resolution does not imply a private damages remedy).
3

coalition in Libya, and thereby seriously jeopardize the credibility of the United States and the
international community.
A.

Plaintiffs Have Not Suffered a Cognizable Injury-in-Fact

One of the primary elements of the case-or-controversy requirement is that plaintiffs,
“based on their complaint, must establish that they have standing to sue.” Raines v. Byrd, 521
U.S. 811, 818, 117 S. Ct. 2312, 2317 (1997). To meet this requirement, plaintiffs must allege
“‘personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.’” Id. (quoting Allen v. Wright, 468 U.S. 737, 751, 104 S. Ct.
3315, 3324 (1984)). Such injury must be “‘concrete and particularized’” and the dispute at issue
must be one “‘traditionally thought to be capable of resolution through the judicial process.’” Id.
at 819, 2317 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 2136
(1992) and Flast v. Cohen, 392 U.S. 83, 97, 88 S. Ct. 1942, 1951 (1968)). As the Supreme Court
has emphasized, the standing inquiry “has been especially rigorous” in cases such as the present,
“when reaching the merits of the dispute would force [a court] to decide whether an action taken
by one of the other two branches of the Federal Government was unconstitutional.” Id. at 81920, 2317-18.
This “especially rigorous” standing inquiry cannot be satisfied by plaintiffs in the present
case, where their standing has been repeatedly and expressly rejected by the Supreme Court and
the courts of this Circuit. Plaintiffs do not identify any particularized or concrete injury that they
have suffered as individuals. Instead, plaintiffs resort to two generalized, and almost completely
foreclosed, standing doctrines: (1) legislative standing and (2) taxpayer standing. See Compl. ¶¶
164-166.

4

1.

Plaintiffs’ Standing to Sue as Legislators Has Been Foreclosed by the
Supreme Court and the D.C. Circuit

With respect to legislative standing, plaintiffs assert that, “[a]s members of Congress,”
they have a “right to challenge a per se violation of Article I of the Constitution as well as the
violation of statutory laws governing the commencement and funding of any undeclared war.”
Compl. ¶ 164; see also id. at 2 (“Plaintiffs . . . bring this Complaint in their official capacities . . .
.”) (emphasis added); id. ¶ 2 (This action further seeks injunctive and declaratory relief to protect
the Plaintiffs and the country . . . .”) (emphasis added). However, that assertion is expressly
foreclosed by the Supreme Court’s holding in Raines v. Byrd, 521 U.S. 811, 117 S. Ct. 2312
(1997), and its progeny. As the Supreme Court explained in Raines, legislators do not have
standing to complain about a generalized or institutional injury “which necessarily damages all
Members of Congress and both Houses of Congress equally,” as such an injury does not single
out any particular member for “specially unfavorable treatment as opposed to other Members of
their respective bodies.” Id. at 821, 2318. Moreover, since the assertion of a “per se violation of
Article I” and other “statutory laws” does not constitute a claim for deprivation of something to
which plaintiffs are “personally . . . entitled,” such as their seats in Congress, the allegation does
not constitute an injury sufficient for Article III standing. Id. Indeed, as the Supreme Court
recognized:
If one of the Members were to retire tomorrow, he would no longer
have a claim; the claim would be possessed by his successor
instead. The claimed injury thus runs (in a sense) with the
Member’s seat, a seat which the Member holds (it may quite
arguably be said) as trustee for his constituents, not as a
prerogative of personal power.
Id. Accordingly, as with the appellees in Raines, plaintiffs here “have alleged no injury to
themselves as individuals . . ., the institutional injury they allege is wholly abstract and widely

5

dispersed . . ., and their attempt to litigate this dispute at this time and in this form is contrary to
historical experience.” Id. at 829, 2322. That conclusion is only bolstered by the fact that the ten
congressmen who sue in the present case “have not been authorized to represent” the House, let
alone the Senate (of which there are no plaintiff members), “in this action.” Id.
In the wake of Raines, the D.C. Circuit has rejected any notion that legislators have a
“per se” right to raise, in their official capacities, generalized institutional grievances against the
Executive Branch. See, e.g., Alaska Legislative Council v. Babbitt, 181 F.3d 1333, 1337 (D.C.
Cir. 1999) (“The bottom line is that the claimed injuries of the individual Alaskan legislators and
the Council are not legally or judicially cognizable.”); Chenoweth v. Clinton, 181 F.3d 112, 115
(D.C. Cir. 1999) (“Against the backdrop of Raines and our own decisions after Goldwater, the
futility of the present Representatives’ claim is apparent.”); see also, e.g., Kucinich v. Bush, 236
F. Supp. 2d 1 (D.D.C. 2002); Walker v. Cheney, 230 F. Supp. 2d 51 (D.D.C. 2002). Plaintiffs
give this line of binding precedent passing recognition, “acknowledg[ing]” only that “standing of
members has been curtailed in prior judicial opinions,” while continuing to “believe that these
decisions allow for an exception for these claims . . . .” Compl. ¶ 165.
Nowhere in their Complaint do plaintiffs identify the exception under which they are
alleging standing, nor do they provide any allegation explaining how their alleged injury fits
within such an exception. Indeed, while the Court’s decision in Raines did not completely
foreclose the possibility of legislator standing, the only exception that has been recognized is
when the vote of a congressman has been completely “nullified” by Executive action. Raines,
521 U.S. at 823-24, 117 S. Ct. at 2319-20. However, while this exception may have continued,
albeit limited, viability in other contexts, the D.C. Circuit already has held that it has no
application to the present case.

6

In Campbell v. Clinton, thirty-one congressmen filed suit against President Clinton
“seeking a declaratory judgment that the President’s use of American forces against Yugoslavia
was unlawful under both the War Powers Clause of the Constitution and the War Powers
Resolution.” 203 F.3d 19, 20 (D.C. Cir. 2000). All three members of the court found that the
congressmen lacked standing to challenge the lawfulness of the actions of the Executive in such
a context. In so ruling, Judge Silberman’s majority opinion 3 rejected the claims of the
congressmen that their votes had been “nullified” because the House had voted against an
“authorization” of air strikes by a tie vote and had also rejected a declaration of war. Id. at 20.
As the court explained:
The Court did not suggest in Raines that the President “nullifies” a
congressional vote and thus legislators have standing whenever the
government does something Congress voted against, still less that
congressmen would have standing anytime a President allegedly
acts in excess of statutory authority. As the government correctly
observes, appellants’ statutory argument, although cast in terms of
the nullification of a recent vote, essentially is that the President
violated the quarter-century old War Powers Resolution.
Similarly, their constitutional argument is that the President has
acted illegally – in excess of his statutory authority – because he
waged war in the constitutional sense without a congressional
delegation. Neither claim is analogous to a . . . nullification.
Id. at 22. The court reached this result based on its view that a “nullification” implies the
absence of a legislative remedy. Id. at 23. And, at least in the context of a dispute over the war
powers, Congress “continued, after the votes, to enjoy ample legislative power to have stopped
prosecution of the ‘war.’” Id. As identified by the court, those options included passing “a law
forbidding the use of U.S. forces in the Yugoslav campaign” and using “appropriations
authority” to “cut off funds for the American role in the conflict.” Id.; see also id. (“Appellants’
3

Judge Tatel’s concurring opinion stated his “agree[ment] with Judge Silberman that Raines v.
Byrd, as interpreted by this court in Chenoweth v. Clinton, deprives plaintiffs of standing to bring
this action.” Campbell, 203 F.3d at 37 (citations omitted).
7

constitutional claim stands on no firmer footing.”); Kucinich v. Bush, 236 F. Supp. 2d at 10
(“Like the congressmen in Raines, Goldwater, and Campbell, plaintiffs here had extensive ‘selfhelp’ remedies available . . . .”), Walker, 230 F. Supp. 2d at 68 (“ . . . Congress retains alternate
means to seek the information . . . .”).
The allegations of plaintiffs’ Complaint cannot, and do not, except them from the binding
force of Raines as interpreted by the D.C. Circuit in Campbell. As in Campbell, plaintiff
legislators have numerous legislative options at their disposal regarding the ongoing operations
in Libya. As in Campbell, plaintiff legislators and their colleagues continue to debate these
legislative options and have already voted on numerous bills that would impact operations in
Libya. “Unfortunately, however, for those congressmen who, like appellants, desired an end to
U.S. involvement” in Libya, the House has at least twice rejected proposals (including one
sponsored by plaintiff Kucinich) to defund United States military operations in Libya and has
voted down a resolution sponsored by plaintiff Kucinich directing immediate withdrawal of
United States armed forces pursuant to the War Powers Resolution. Campbell, 203 F.3d at 23;
see 157 Cong. Rec. H4769 (daily ed. July 8, 2011) (defeating Kucinich amendment to H.R. Res.
2219); 157 Cong. Rec. H4563 (daily ed. June 24, 2011) (defeating H.R. Res. 2278); 157 Cong.
Rec. H4021 (daily ed. June 3, 2011) (defeating H.R. Con. Res. 51). Moreover, the full Senate
unanimously passed a resolution supporting a no-fly zone, and the Senate Foreign Relations
Committee has approved a resolution in support of the ongoing operations. See 157 Cong. Rec.
S1075 (daily ed. Mar. 1, 2011) (unanimously agreeing to S. Res. 85); S. REP. NO. 112-27 (June
29, 2011) (noting the reporting by Senate Foreign Relations Committee of resolution authorizing
the limited use of United States Armed Forces in support of the NATO mission in Libya).
Plaintiffs are fully able, in their legislative capacities, to seek their desired goal. A decade of

8

binding precedent, however, squarely forecloses their standing to seek this goal through the
judicial system when their legislative efforts have failed in Congress.
2.

Plaintiffs’ Assertion that They Have Standing as Taxpayers to
Challenge the Actions of the Executive on Grounds Other than
the Establishment Clause Is Meritless

Plaintiffs’ next asserted injury-in-fact is grounded in a status shared with millions of
fellow taxpayers. Plaintiffs state in the Complaint that they “believe that they have standing as
taxpayers given the use of hundreds of millions of dollars in federal funds without authorization
of Congress to support a war in violation of a specific constitutional limitation in Article I.”
Compl. ¶ 166.
Like plaintiffs’ theory of legislative standing, their assertion of taxpayer standing is
squarely foreclosed by binding precedent. As this Court has explained in the context of a
taxpayer challenge to military action in Iraq and foreign aid to Israel, the Supreme Court has
established a two-part test to determine whether a taxpayer has standing: “First, . . . ‘a taxpayer
will be a proper party to allege the unconstitutionality only of exercises of congressional power
under the taxing and spending clause of Art. I, § 8, of the Constitution’”; “Second, . . . the
taxpayer must ‘show that the challenged enactment exceeds specific constitutional limitations
upon the exercise of the taxing and spending power and not simply that the enactment is
generally beyond the powers delegated to Congress by Art. I, § 8.’” Mahorner, 224 F. Supp. 2d
at 50-51 (quoting Flast, 392 U.S. at 102-03, 88 S. Ct. at 1954), aff’d, 2003 WL 349713 (D.C.
Cir. 2003) (per curiam). Both prongs of the taxpayer standing inquiry have been interpreted to
foreclose plaintiffs’ standing in the present case.
As this Court previously held in Mahorner, a plaintiff “fails to meet the first prong of the
Flast standing test” when “he does not challenge any act of Congress, but expenditures by the

9

executive branch . . . because courts have consistently held that challenges to actions by
members of the Executive Branch by citizens solely on the basis of their status as taxpayers are
not cognizable in the federal courts.” Id. Such holdings include those of the D.C. Circuit, which
this Court noted has “repeatedly held that ‘challenges to actions of the executive branch are not
cognizable in a federal taxpayer action . . .’” Id. (quoting Swomley v. Watt, 526 F. Supp. 1271,
1274 (D.D.C.1981) (citing Am. Jewish Congress v. Vance, 575 F.2d 939, 944 (D.C.Cir.1978);
Pub. Citizen, Inc. v. Simon, 539 F.2d 211, 216-17 (D.C. Cir.1976))).
This limitation to the first prong of the Flast inquiry was recently reaffirmed by the D.C.
Circuit in In re Navy Chaplaincy, 534 F.3d 756, 762 (D.C. Cir. 2008), where the court explained
that, while the participation of Executive Branch officials in an action challenged by taxpayers
may not by itself defeat taxpayer standing, Congress must “expressly authorize[] or appropriate[]
funds for” the action that is challenged. Id.; see also Hein v. Freedom from Religion Found.,
Inc., 551 U.S. 587, 608-09, 127 S. Ct. 2553, 2568 (2007) (Alito, J.) (“Because the expenditures
that respondents challenge were not expressly authorized or mandated by any specific
congressional enactment, respondents’ lawsuit is not directed at an exercise of congressional
power, and thus lacks the requisite ‘logical nexus’ between taxpayer status ‘and the type of
legislative enactment attacked.’”) (internal citation omitted) (quoting Flast, 392 U.S. at 102, 88
S. Ct. at 1953). Like plaintiffs in Mahorner and In re Navy Chaplaincy, plaintiffs here do not
purport to challenge any action expressly authorized by the legislative branch. To the contrary,
as legislators themselves, plaintiffs seek to uphold the primacy of legislative appropriations
against their alleged abuse by the Executive Branch. See Compl. ¶ 200 (“While Congress has
allowed the Department of Defense discretion in the use of some funds to handle emergencies,
these funds cannot be used for a facially unconstitutional purpose or to circumvent express

10

legislative powers.”). “Under the Supreme Court’s precedents, that contention directly
undermines any claim to taxpayer standing.” In re Navy Chaplaincy, 534 F.3d at 762.
Plaintiffs’ assertion of “taxpayer standing” fares no better under the second prong of the
Flast inquiry. In April of this year, the Supreme Court reiterated that the Flast exception
permitting taxpayer standing “turned on the unique features of Establishment Clause violations”
and noted that, as a consequence, “this 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); see also Hein,
551 U.S. at 609, 127 S. Ct. at 2569 (Alito, J.) (“We have declined to lower the taxpayer standing
bar in suits alleging violations of any constitutional provision apart from the Establishment
Clause.”); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 347, 126 S. Ct. 1854, 1864 (2006)
(“[A]s plaintiffs candidly concede, ‘only the Establishment Clause’ has supported federal
taxpayer suits since Flast.”); Am. Jewish Congress v. Corp. for Nat’l & Cmty. Serv., 399 F.3d
351, 355 (D.C. Cir. 2005) (“The exception is for taxpayer suits claiming that Congress exercised
its Article I, § 8, taxing and spending power in violation of the Establishment Clause.”); Newdow
v. Eagen, 309 F. Supp. 2d 29, 37 (D.D.C. 2004) (“Although in general, an individual lacks
standing based on federal taxpayer status, a ‘narrow exception’ to the general rule against federal
taxpayer standing exists in certain actions bringing Establishment Clause challenges.”) (internal
citation omitted).
Plaintiffs again purport to “acknowledg[e] past decisions limiting [taxpayer] standing to
Establishment Clause challenges under the First Amendment, and rejecting some challenges to
Executive Branch actions,” but they “believe that the violations asserted herein fall within a
narrow exception allowing judicial review.” Compl. ¶ 166. There is no such exception.

11

Defendants are aware of no case that has extended the Flast exception beyond Establishment
Clause challenges to actions of, or actions at least authorized by, Congress. Creating such an
exception would be directly contrary to the admonitions of the Supreme Court and the D.C.
Circuit, which repeatedly have emphasized that the narrow limitations of the 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 fact,
plaintiffs’ purported exception not only would expand the Flast exception, it would render the
limitations on legislative standing meaningless, as any member of Congress is presumably a
taxpayer who therefore would be able to challenge the Executive’s purported misuse of
congressional appropriations in violation of congressional war powers.
Plaintiffs’ Complaint ultimately seeks reconsideration of the binding precedent
precluding their standing to sue. See Compl. ¶ 167 (“To the extent that prior cases are viewed as
barring judicial review, the Plaintiffs believe those cases were wrongly decided and wish to seek
reconsideration of the question in this context.”). While plaintiffs theoretically may seek
reconsideration of such opinions on appeal, this is not the forum in which to create new law on
settled issues of standing.

12

B.

As Numerous Courts of This Circuit Have Recognized, Plaintiffs’ War
Powers Claims Present Non-Justiciable Political Questions

These obvious standing deficiencies take on added importance in the present case, where
plaintiffs ask this Court to define the scope of the military authority possessed by the political
branches, decide whether this authority is affected by a U.N. Security Council resolution and the
North Atlantic Treaty, and command the Executive to immediately withdraw U.S. assistance for
the ongoing multilateral operations in Libya. Plaintiffs’ war powers claims (Counts I through IV
of the Complaint) and their requested relief raise fundamentally political questions that have
been held non-justiciable by numerous courts and judges of this Circuit. See, e.g., Campbell,
203 F.3d 19 (Silberman, J., concurring); Sadowski v. Bush, 293 F. Supp. 2d 15 (D.D.C. 2003);
Ange v. Bush, 752 F. Supp. 509 (D.D.C. 1990); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C.
1987); Sanchez-Espinoza v. Reagan, 568 F. Supp. 596 (D.D.C. 1983), aff’d, 770 F.2d 202 (D.C.
Cir. 1985); Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff’d, 720 F.2d 1355 (D.C. Cir.
1983) (per curiam); see also, e.g., New Jersey Peace Action, 2009 WL 1416041. In accordance
with these decisions, this Court should dismiss plaintiffs’ war powers claims and deny the
requested relief.
“The political question doctrine is a natural outgrowth of fidelity to the concept of
separation of powers.” Doe I v. State of Israel, 400 F. Supp. 2d 86, 111 (D.D.C. 2005); accord
Baker v. Carr, 369 U.S. 186, 210, 82 S. Ct. 691, 706 (1962). The doctrine is “based upon
respect for the pronouncements of coordinate branches of government that are better equipped
and properly intended to consider issues of a distinctly political nature,” Doe I, 400 F. Supp. 2d
at 111, and “excludes from judicial review those controversies which revolve around policy
choices and value determinations constitutionally committed for resolution to the halls of

13

Congress or the confines of the Executive Branch,” Japan Whaling Ass’n v. Am. Cetacean Soc’y,
478 U.S. 221, 230, 106 S. Ct. 2860, 2866 (1986).
In Baker, the Supreme Court “enumerated six situations that constitute political
questions, over which there is no jurisdiction to proceed.” Doe I, 400 F. Supp. 2d at 111.
Prominent on the surface of any case held to involve a political
question is found [1] a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or
[2] a lack of judicially discoverable and manageable standards for
resolving it; or [3] the impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion; or
[4] the impossibility of a court’s undertaking independent
resolution without expressing lack of the respect due coordinate
branches of government; or [5] an unusual need for unquestioning
adherence to a political decision already made; or [6] the
potentiality of embarrassment from multifarious pronouncements
by various departments on one question.
Baker, 369 U.S. at 217, 82 S. Ct. at 710.
As this Court has recognized, the Baker factors have particular application to decisions in
the foreign policy and military arenas, as “[c]ourts have developed through a long line of cases
that matters involving foreign policy and military decisions are political in nature, and not within
the province of the judicial branch.” Mahorner, 224 F. Supp. 2d at 52; see also El-Shifa Pharm.
Indus. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010) (en banc); Bancoult v. McNamara,
445 F.3d 427, 433 (D.C. Cir. 2006). Because such cases raise issues that “frequently turn on
standards that defy judicial application” or “involve the exercise of a discretion demonstrably
committed to the executive or legislature,” Baker, 369 U.S. at 211, 82 S. Ct. at 707, “[m]atters
intimately related to foreign policy and national security are rarely proper subjects for judicial
intervention,” Haig v. Agee, 453 U.S. 280, 292, 101 S. Ct. 2766, 2774 (1981); see also
Mahorner, 224 F. Supp. 2d at 52 (“The conducting of military operations is considered to be ‘so
exclusively entrusted to the political branches of government as to be largely immune from
14

judicial inquiry or interference.’”) (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589, 72 S.
Ct. 512, 519 (1952)).
Of course, “[not] every case or controversy which touches foreign relations lies beyond
judicial cognizance.” Baker, 369 U.S. at 211, 82 S. Ct. at 707. Instead, courts must conduct “a
discriminating analysis of the particular question posed” in the “specific case,” rather than
focusing on the “nature of the government conduct under review.” El-Shifa, 607 F.3d at 841,
842 (internal quotations omitted). Here, that analysis, based on the factors enunciated by the
Supreme Court in Baker, leads inescapably to the conclusion that plaintiffs’ war powers claims
raise non-justiciable political questions.
1.

The Constitution Commits the War Powers to the Political Branches

The first four claims of plaintiffs’ Complaint challenge the President’s authority to
initiate “military actions” in the absence of the consent of Congress. E.g. Compl. ¶ 170. In so
doing, plaintiffs would have this Court hold that the current involvement of the United States in
Libya constitutes “a ‘war’ for purposes of Article I” and that “the Executive Branch is . . .
required to seek congressional approval for such military operations.” Id. ¶¶ 169, 170, at 35.
The relief plaintiffs request as a result of such a finding includes “an order to suspend military
operations in Libya absent a declaration of war from Congress.” Id. at 36.
Thus, all of plaintiffs’ war powers claims “share one common denominator: the
Constitution’s allocation of war powers among the executive and legislative branches”:
If the court were to determine whether the President’s deployment
to date violates the War Powers Clause . . . or whether the
President’s deployment order violates the War Powers Resolution,
the court would have to determine precisely what allocation of war
power the text of the Constitution makes to the executive and
legislative branches.

15

Ange, 752 F. Supp. at 512. The resolution of such questions directly impacts powers that are
textually committed to the political branches, as plaintiffs would have this Court define the outer
limits of the President’s authority as Commander-in-Chief and Chief Executive and of the
Legislature’s power to constrain such authority through its ability to declare “war.” See id. at
514 (“In the present case, there is an explicit textual commitment of the war powers not to one of
the political branches, but to both.”); see also New Jersey Peace Action, 2009 WL 1416041, *8
(“[T]he Constitution commits the entire foreign policy power of this country to the executive and
legislative branches.”) (internal quotation omitted).
These are not questions that the judiciary is equipped to resolve. Rather, “[t]he powers
granted to both branches . . . enable those branches to resolve the dispute themselves.” Ange,
752 F. Supp. at 514; see also New Jersey Peace Action, 2009 WL 1416041, *8 (“The two
branches share the broad array of war powers, and the Constitution allows them to work out
disputes themselves.”). “Meddling by the judicial branch in determining the allocation of
constitutional powers where the text of the Constitution appears ambiguous as to the allocation
of those powers ‘extends judicial power beyond the limits inherent in the constitutional scheme
for dividing federal power.’” Ange, 752 F. Supp. at 514 (quoting Riegle v. Fed. Open Mkt.
Comm., 656 F.2d 873, 881 (D.C. Cir. 1981)); see also New Jersey Peace Action, 2009 WL
1416041, *8 (“[T]he distinction between a declaration of war and a cooperative action by the
legislative and executive with respect to military activities in foreign countries is the very
essence of what is meant by a political question.”) (internal quotation omitted).
Moreover, plaintiffs’ war powers claims do not limit themselves simply to requesting a
judicial definition of the scope of the war powers of the political branches. Indeed, they also
request an advisory opinion as to how these powers relate to, or are affected by, a United Nations

16

Security Council resolution and the North Atlantic Treaty. See Compl. ¶ 184 (“Despite
membership in the United Nations and its Security Council, neither U.N. resolutions nor treaties
can relieve the President of constitutional obligations under Article I on congressional
authorizations of war.”); ¶ 195 (“The use of the North Atlantic Treaty in this undeclared war
violates the express ratified language of the Treaty and thus exceeds the President’s authority
under Article II of the Constitution.”). Questions such as these, concerning a purported dispute
between members of Congress and the President over international instruments, have been
“repeatedly held” by courts to be “largely political questions best left to the political branches of
the government, not the courts, for resolution.” Kucinich v. Bush, 236 F. Supp. 2d at 16; see also
Goldwater v. Carter, 444 U.S. 996, 1003, 100 S. Ct. 553, 537 (1979) (Rehnquist, J., concurring)
(finding a dispute between members of Congress and the President over treaty termination to be
“a nonjusticiable political dispute that should be left for resolution by the Executive and
Legislative Branches of the Government”).
That result is not commanded simply by the fact that plaintiffs’ claims relate to an
international instrument, as “in general ‘the courts have the authority to construe treaties and
executive agreements.’” Hwang Geum Joo v. Japan, 413 F.3d 45, 52 (D.C. Cir. 2005) (quoting
Japan Whaling, 478 U.S. at 230, 106 S. Ct. at 2866). However, plaintiffs’ third and fourth
claims, assuming that these claims are in fact independent from plaintiffs’ war power claims, 4 do
not depend for their resolution on any “particular interpretation of th[e]” international
instruments purportedly at issue in this case. Id. Plaintiffs instead argue that the President is not
“relieve[d]” of “his obligation to seek congressional approval of combat operations” as a result
of such instruments. Compl. ¶¶ 185, 194. Thus, regardless of the particular interpretation of
4

See infra at 22-23.
17

U.N. Security Council Resolution 1973 and the North Atlantic Treaty that would be adopted by
this Court, plaintiffs’ claim would still be that neither could absolve the President of the need to
seek a declaration of war or comply with the War Powers Resolution. 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” 5). Thus, the only effect
of examining the instruments referenced by plaintiffs would be to decide, as a purely advisory
matter, the interplay between the war powers possessed by the political branches and these
instruments. A judicial determination of such an inherently political question would have wideranging impacts on the foreign relations of the United States. 6
2.

Plaintiffs’ War Powers Claims Lack Judicially Manageable or
Discoverable Standards for Resolution

Plaintiffs’ war powers claims would require this Court to make several underlying
determinations about United States operations in Libya that have repeatedly been held to be
unsuited for judicial resolution. With regard to their constitutional claim, plaintiffs ask this
Court to hold that “military actions involving combat operations over an indefinite period of
time” constitute “‘war’ for the purposes of Article I.” Compl. ¶ 170. Their statutory claim is
similar, arguing that “[t]he Libyan War, as well as its underlying policies, has been maintained in
violation of the War Powers Resolution,” as the operations in Libya constitute “hostilities”

5

The wide-ranging advisory opinion that plaintiffs seek is, in fact, not limited to the context of
Libya, as the Complaint expressly indicates that the Court’s decision as to the scope of these
international instruments would have equal application to “countries like Libya.” E.g. Compl. ¶
185.
6

See infra at 20-22.
18

within the meaning of the War Powers Resolution. Id. ¶¶ 174, 178 (emphasis added). Such
“underlying policies” apparently include the President’s purported interpretation of a United
Nations Security Council resolution and the North Atlantic Treaty. See id. at 32-34.
However, these statutory and constitutional claims, which “too obviously call[] for a
political judgment,” do not provide a “standard . . . precise enough” to permit judicial resolution.
Campbell, 203 F.3d at 25 (Silberman, J., concurring); see also id. at 28 (“In sum, there are no
standards to determine either the statutory or constitutional questions raised in this case . . . .”);
but see id. at 37-41 (Tatel, J., concurring) (arguing that such claims are justiciable).
Accordingly, “[t]ime and again courts have refused to exercise jurisdiction in such cases and
undertake such determinations because courts are ill-equipped to do so.” Ange, 752 F. Supp. at
514; see also, e.g., Schneider v. Kissinger, 412 F.3d 190, 196-97 (D.C. Cir. 2005); New Jersey
Peace Action, 2009 WL 1416041, *9; Sadowski, 293 F. Supp. 2d at 21; Lowry, 676 F. Supp. at
340 n.53; Sanchez-Espinoza, 568 F. Supp. at 600; Crockett, 558 F. Supp. at 898; but see Dellums
v. Bush, 752 F. Supp. 1141 (D.D.C. 1990).
These decisions have been based on the fundamental ambiguities in the questions that
plaintiffs’ claims present. Plaintiffs “cannot point to any constitutional test” for judges to apply
to determine “what is war,” Campbell, 203 F.3d at 25 (Silberman, J., concurring); New Jersey
Peace Action, 2009 WL 1416041, *8, just as they are unable to define judicially manageable
criteria to determine what constitutes “hostilities” within the meaning of the War Powers
Resolution, which lacks a “definitional section” and was accompanied by “debate suggesting that
determinations of ‘hostilities’ were intended to be political decisions made by the President and
Congress,” Lowry, 676 F. Supp. at 340 n.53. After all, “[i]f this Court accepted Plaintiffs’
invitation to make” such a determination, “it would have to be prepared to fully measure every

19

future instance of hostilities against the Constitution’s ‘declare war’ clause.” New Jersey Peace
Action, 2009 WL 1416041, *8.
The difficulty in evaluating such a question is magnified by considerations about what
such an analysis would entail in the context of litigation over sensitive military operations. As
several courts have noted, “[t]he Court lacks the resources and expertise . . . to resolve disputed
questions of fact concerning the military situation” in a particular country or region. Crockett,
558 F. Supp. at 898; see also Campbell, 203 F.3d at 27 (Silberman, J., concurring); SanchezEspinoza, 568 F. Supp. at 600. The Court should not risk entering into such a sensitive inquiry,
particularly when plaintiffs here are endowed by the Constitution with remedies of their own
should they disagree with the Executive’s decision. See, e.g., Crockett, 558 F. Supp. at 899 (“If
Congress doubts or disagrees with the Executive’s determination that U.S. forces . . . have not
been introduced into hostilities or imminent hostilities, it has the resources to investigate the
matter and assert its wishes.”).
3.

A Great Potential for Damage to Our Foreign Relations Exists from
Multifarious Pronouncements Contradicting the Executive Branch’s
Decision to Support Multilateral Operations in Libya

Through the relief that they seek in this lawsuit, plaintiffs would have this Court order the
political branches to “suspend military operations in Libya.” Compl. at 36. In seeking to obtain
such a result, plaintiffs would also have this Court opine on the ability of the United States to
participate in multilateral operations in conjunction with our partners in the international
community pursuant to a United Nations Security Council resolution and the North Atlantic
Treaty. See id. at 32-34.
It is obvious that these are issues “of the greatest sensitivity for our foreign relations.”
Campbell, 203 F.3d at 27 (Silberman, J., concurring). The President has explained that

20

“Qadhafi’s defiance of the Arab League, as well as the broader international community . . .,
represents a lawless challenge to the authority of the Security Council and its efforts to preserve
stability in the region.” Letter from President Obama to the Hon. John Boehner, Speaker, U.S.
H. of Rep. (Mar. 21, 2011), available at http://www.whitehouse.gov/the-pressoffice/2011/03/21/letter-president-regarding-commencement-operations-libya. Indeed, had the
United States failed to act, “[t]he writ of the United Nations Security Council would have been
shown to be little more than empty words, crippling that institution’s future credibility to uphold
global peace and security.” President Barack Obama, Address to the Nation on Libya (Mar. 28,
2011), available at http://www.whitehouse.gov/the-press-office/2011/03/28/remarks-presidentaddress-nation-libya.
Plaintiffs would have this Court order the President to renege on the prior commitment of
the United States to support the international coalition in Libya. Such an order would cause
tremendous harm to our foreign relations. Cf. Campbell, 203 F.3d at 28 (Silberman, J.,
concurring) (“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.”); Lowry,
676 F. Supp. at 340 (recognizing that a “declaration of ‘hostilities’ by this Court . . . might create
doubts in the international community regarding the resolve of the United States to adhere to [its]
position”); Sanchez-Espinoza, 568 F. Supp. at 600 (“Congressional debate is ongoing . . . .
Judicial resolution of the Congressional plaintiffs’ claims unnecessarily might provide yet a third
view on U.S. activities in Central America.”). In light of the widespread international

21

consequences that would flow from such a pronouncement, that is not a request that this Court
should, or can, entertain. 7
C.

Plaintiffs’ Third and Fourth Claims Fail to Present a Case or Controversy
Under Article III

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. Plaintiffs are not arguing that either of these international instruments is
the source of their injury, or that their injuries would be redressed by any particular judicial relief
with respect to these treaties. Rather, plaintiffs’ “claims” are predicated on injury purportedly
occurring as a result of the President’s alleged decision not to consult with Congress prior to
engaging in 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” ). It is the purported failure to obtain authorization from
Congress that is therefore the cause of, and the source of their requested remedy for, the injuries
that they allege.
As such, these “claims” are, in reality, plaintiffs’ premature attempt to rebut what they
perceive as “defenses” to their war powers claims. As such, they do not operate as independent
claims for relief. At most, these claims are requests for an advisory opinion from the Court as to
the operation and scope of two international instruments in the absence of a case or controversy
created by the instruments themselves, a fact demonstrated by plaintiffs’ acknowledgement that
7

Moreover, at least one court in this Circuit has recognized that, even if war powers claims were
justiciable, it would still not consider immediate United States withdrawal as a proper remedy for
a war powers violation. See Crockett, 558 F. Supp. at 899.
22

the opinion they seek would extend beyond the present factual context to any country “like”
Libya, see Compl. at 36. This court lacks jurisdiction to engage in such an academic exercise
over a “policy” with which plaintiffs purportedly disagree, as the “policy” would be unnecessary
to resolve until and unless it is advanced as a defense to plaintiffs’ war powers claims (at which
point it would be litigated as part of plaintiffs’ claims, not as a separate cause of action). See
Calderon v. Ashmus, 523 U.S. 740, 748, 118 S. Ct. 1694, 1699 (1998) (“If the class members file
habeas petitions, and the State asserts Chapter 154, the members obviously can litigate
California’s compliance with Chapter 154 at that time.”) (emphasis added); Coffman v. Breeze
Corp., 323 U.S. 316, 324, 65 S. Ct. 298, 302 (1945) (“In the circumstances disclosed by the
record and for purposes of the present suit, the constitutionality of the Act is without legal
significance and can involve no justiciable question unless and until appellant seeks recovery of
the royalties, and then only if appellee relies on the Act as a defense.”).
II.

EVEN ASSUMING THAT THIS CASE WERE JUSTICIABLE UNDER ARTICLE
III, PRUDENTIAL CONSIDERATIONS COUNSEL AGAINST THE EXERCISE
OF JURISDICTION OVER PLAINTIFFS’ CLAIMS
Even if plaintiffs’ Complaint were justiciable under Article III, courts routinely have

refused to grant relief to legislative plaintiffs raising similar political challenges due to the
prudential considerations counseling against such a remedy. These decisions have been based on
varying rationales, including the need to wait for a ripe dispute between the executive and
legislative branches, Goldwater, 444 U.S. at 996, 100 S. Ct. at 534 (Powell, J., concurring); Doe
v. Bush, 323 F.3d 133, 137 (1st Cir. 2003); Dellums, 752 F. Supp. 1141, as well as the doctrine

23

of remedial discretion, 8 Chenoweth, 181 F.3d at 116; Ange, 752 F. Supp. at 513; Lowry, 676 F.
Supp. 333; Conyers v. Reagan, 578 F. Supp. 324, 326 (D.D.C. 1984).
These doctrines recognize that plaintiff legislators “who have collegial or in-house
remedies available to them,” should not be permitted to come to court to “assert[] their
constitutional or legislative claims.” Conyers, 578 F. Supp. at 326. Here, as in prior cases,
“plaintiffs’ dispute is ‘primarily with [their] fellow legislators,’” as these are the individuals who
have refused to vote in favor of certain legislative measures introduced in Congress with regard
to Libya. Lowry, 676 F. Supp. at 339 (quoting Riegle, 656 F.2d at 881); Conyers, 578 F. Supp. at
327 (“It must be noted that two of the plaintiff legislators attempted to initiate congressional
action condemning the President’s decision . . . . Those efforts were for naught . . . .”); see also
157 Cong. Rec. H4769 (daily ed. July 8, 2011) (defeating Kucinich amendment to H.R. Res.
2219); 157 Cong. Rec. H4563 (daily ed. June 24, 2011) (defeating H.R. Res. 2278); 157 Cong.
Rec. H4021 (daily ed. June 3, 2011) (defeating H.R. Con. Res. 51). It must be remembered that
the ten plaintiffs before the Court represent less than three percent of the House, let alone the

8

Prior to the Supreme Court’s decision in Raines, the courts of this Circuit frequently relied on
the doctrine of remedial, or equitable, discretion as a means of disposing of lawsuits such as the
present one. See, e.g., Chenoweth, 181 F.3d at 114. In an attempt to reconcile D.C. Circuit case
law on legislative standing, courts would often grant standing to legislators but then refuse to
provide the relief sought. See, e.g., id. Following the Court’s decision in Raines, and the clear
lesson of that decision for the standing of legislators, this Circuit has questioned whether the
doctrine of remedial discretion retains independent vitality apart from the legislative standing
analysis. See id. at 116 (“Raines, therefore, may not overrule Moore so much as require us to
merge our separation of powers and standing analyses.”); Walker, 230 F. Supp. 2d at 62 n.8
(“Although in theory the ‘equitable discretion’ doctrine offers a compelling basis for a court to
stay its hand in the face of serious separation of powers concerns, the scope of the doctrine
remains unsettled in the aftermath of Raines.”). Defendants believe that the Raines analysis
clearly demonstrates that this Court lacks jurisdiction over this matter and that the prudential
analysis is therefore unnecessary. However, should the Court reach the prudential analysis, it
would similarly command dismissal of this action. Cf. Chenoweth, 181 F.3d at 116 (“Whatever
Moore gives the Representatives under the rubric of standing, it takes away as a matter of
equitable discretion.”).
24

entire Congress, and thus their request for extraordinary relief asks this Court to substitute the
views of these ten legislators for the position of Congress as a whole. See Dellums, 752 F. Supp.
at 1150-51 (“It would hardly do to have the Court, in effect, force a choice upon the Congress by
a blunt injunctive decision, called for by only about ten percent of its membership, to the effect
that, unless the rest of the Congress votes in favor of a declaration of war, the President, and the
several hundred thousand troops he has dispatched to the Saudi Arabian desert, must be
immobilized.”). Accordingly, even putting the obvious jurisdictional flaws in plaintiffs’
Complaint to the side, there is no necessity for this Court to entertain the extraordinary relief that
plaintiffs now request.
CONCLUSION
For the foregoing reasons, defendants respectfully request that this action be dismissed.

25

Dated: August 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

26