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Law School Case Brief

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


The lack of a fully developed dispute between the two elected branches of the federal government, and the consequent lack of a clearly defined issue, is exactly the type of concern which causes courts to find a case unripe. Courts should decline, on ripeness grounds, to decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. A number of courts have adopted this view of ripeness in cases involving military powers.


Members of the U.S. military, parents of military personnel, and members of the U.S. House of Representatives filed an action against the President and Secretary of Defense, seeking a preliminary injunction preventing the President and Secretary from initiating a war against Iraq. According to the plaintiffs, declaration of war by the President and the Secretary of Defense would violate the Constitution. Plaintiffs asserted that judicial intervention was necessary to preserve the principle of separation of powers. Only the judiciary, they argued, has the constitutionally assigned role and the institutional competence to police the boundaries of the constitutional mandates given to the other branches. The trial court dismissed the complaint, and the plaintiffs appealed.


Can the courts take cognizance of the issue of the President’s and Secretary of Defense’s exercise of military power?




The Court held that the plaintiffs' argument that the President and the Congress were in collusion because the President was about to act in violation of the Authorization for Use of Military Force Against Iraq Resolution of 2002, Pub L. No. 107-243, 116 Stat. 1498, was not ripe for review. Moreover, the Court held that there was insufficient evidence to support the plaintiffs' argument that the President and Congress were in collusion because Congress handed over its exclusive power to declare war to the President; and under the circumstances, judicial intervention was not warranted.

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