[LST] Can Obama be Sued for Ordering Military Action in Syria?

http://blogs.wsj.com/law/2013/08/30/can-obama-be-sued-for-ordering-military-action-in-syria/

 

 

 

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• August 30, 2013, 12:35 PM ET

Can Obama be Sued for Ordering Military Action in Syria?

ByJacob Gershman

Associated Press

People have sued to stop the government from doing all sorts of things, from condemning a property, to enforcing a soda ban, to collecting domestic phone data. But can you sue the president to stop a war?

As President Barack Obama weighs a military strike in Syria, some prominent legal experts have said the use of force against Bashar al-Assad’s regime would be a “constitutional stretch.” And more than 100 U.S. lawmakers have signed on to a letter warning the president that “engaging our military in Syria . . . without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution.”

But if Mr. Obama pulls the trigger, there’s very little that anyone can do about it — at least in the courtroom. Here’s why.

Since the enactment in 1973 of the War Powers Resolution, members of Congress have sued presidents eight times to force them to comply with the law and got nowhere, according to a 2012 report by the Congressional Research Service.

The resolution requires the president to notify lawmakers within 48 hours of sending armed forces into “hostilities,” absent a declaration of war, and to “terminate” such operations within 90 days unless Congress specifically authorizes continued involvement. Article I, Section 8 of the Constitution gives Congress the power to “declare War.”

“In each instance where a ruling was delivered, the reviewing court refused to render a decision on the merits,” states the Congressional Research Service report.

The biggest hurdle for U.S. lawmakers is that they lack standing to sue. Plaintiffs are required to show that they’ve suffered a concrete, particular injury, one that’s distinct from that incurred by the average guy on the street. Dennis Kucinich and nine other members of Congress lacked standing 2011 when they sued the Obama administration in federal court over the U.S. military intervention in Libya.

“The Court concludes that the plaintiffs have failed to demonstrate that they have standing—either in their capacity as Members of the House of Representatives or because of their status as taxpayers—to maintain this action,” wrote U.S. District Judge Reggie B. Walton, dismissing the suit.

Members of Congress also have run into another brick wall called the “political question” doctrine, which involves deference to the president’s discretionary authority.

“Courts will not decide cases that risk embarrassment to an equal branch of government or involve courts in policy decisions that aren’t appropriate for judicial resolution,” Michael J. Glennon, a professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University, told Law Blog.

Judges have also dismissed lawsuits on the grounds of “mootness.” Once the military operation has wound down, the case becomes moot. As Mr. Glennon notes, “courts don’t decide abstract questions.”

Could anyone else sue — beyond members of Congress?

“It’s conceivable that a member of the armed forces who is ordered into combat might disobey the order, complaining that the order is unlawful,” said Mr. Glennon. But he said “it’s highly improbable that any such person could ever be located and identified.” And a soldier would face the same “mootness” and “political question” obstacles.

That doesn’t mean the president doesn’t have an obligation to act within his constitutional authority, as George Mason University law professor Ilya Somin observes.

“The president must stay within constitutional bounds regardless of whether a court rules on the issue or not. He has an independent duty of his own to uphold the Constitution, as his oath of office states,” Mr. Somin told Law Blog by email. “If he is widely perceived as acting unconstitutionally, that will undermine public and elite support for any intervention and make it harder for him to achieve success in the resulting conflict.”

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Saurav Datta

 

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