Thank You For Submiting Feedback!
A dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority.
After Iraq invaded Kuwait, President George Bush raised the troop level in the area, stating that the objective was to provide an adequate offensive military option. Plaintiffs, members of Congress, requested a preliminary injunction directed to the President to prevent him from initiating an offensive attack against Iraq without first securing a declaration of war or other explicit congressional authorization for such action. According to Congress, the offensive United States military action would be unlawful in the absence of a declaration of war by Congress and would rob the Congress members of their powers under U.S. Const. art. I, § 8, cl. 11. The Department of Justice, acting on behalf of the President, opposed the motion for preliminary injunction, and it also moved to dismiss.
Should the court grant the plaintiffs’ motion for preliminary injunction?
The court held that the President did not have the sole power under U.S. Const. art. II, § 1, cl. 1 and § 2 to determine that the military operation did not constitute war-making because such power would undermine the congressional power to declare war. The court held that offensive entry into Iraq could be described as war within the meaning of U.S. Const. art. I, § 8, cl. 11. The court held that the Congress members had standing to assert their right to vote for or against a declaration of war, and the threat of injury was sufficiently immediate. However, the dispute was not ripe because only 54 members, rather than a majority of Congress, sought relief from an infringement of its war-declaration power and the President had not yet shown a commitment to a definitive course of action. Accordingly, the court denied the motion for preliminary injunction by the members of Congress members.