A law suit challenging the legality of the war in Iraq was filed today (May 13) in the Federal District Court in Newark, New Jersey on behalf of New Jersey Peace Action and two leaders of the New Jersey chapter of military Families Speak Out (MFSO).
The suit was brought by the Rutgers Law School/Newark Constitutional Litigation Clinic, and seeks a Declaratory Judgment that the launching of a preemptive war against a sovereign nation by President Bush in 2003 violated Article I, Section 8 of the United States Constitution, which assigns to Congress the power to Declare War.
Half a dozen law students have been working with me and another of my colleagues for much of the past academic year studying the issues and preparing the law suit.
The unusual 20-page Complaint relies very heavily on the annals of the 1787
Constitutional Convention, at which the Founders deliberately denied to the president the power to wage war except in response to a sudden attack when Congress did not have time to act. Our study showed that the Founders were unanimous that only Congress could make that awesome decision. And Congress was not permitted to delegate that power to the president and thus be able later to disclaim responsibility for a decision gone bad. It was that momentous decision that allowed Thomas Jefferson to proclaim that the Convention had ‘chained the dog of war.’"
The complaint also cites 19th Century Supreme Court rulings holding that an all-out, or "perfect," war could only be declared by Congress, whereas Congress could authorize the president to wage a quasi, or "imperfect," war under strict limits as to scope and duration without a full-scale Declaration, as they did during the quasi-war with France from 1798 to 1800.
The Complaint candidly acknowledges that a number of law suits challenging U.S. military actions without a Congressional Declaration since the end of World War II have failed in the lower federal courts, mostly on procedural grounds. The Supreme Court has never held that the president may wage an all-out war against a sovereign nation in the absence of such a Declaration. In any event, the Complaint says, the Constitution may not be amended by persistent violation.
The suit does not seek coercive relief. It does point to continuous threats by the Bush Administration of military action against Iran, and seeks a Declaration that such unilateral actions by the President violate Article I, Section 8, asserting that this is an issue "capable of repetition yet persistently evading review."