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LOWRY v. REAGAN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


December 18, 1987

Michael E. Lowry, a Representative from Washington, et al.,
v.
Ronald W. Reagan, President of the United States

The opinion of the court was delivered by: REVERCOMB

MEMORANDUM OPINION AND ORDER

 George H. Revercomb, Judge.

 This matter came before the Court on plaintiffs' Motion for Summary Judgment, defendant's Opposition, defendant's Motion to Dismiss, plaintiffs' Opposition and Reply, and defendant's Reply. A brief in support of defendant's Motion to Dismiss was submitted by amicus curiae Representative Howard L. Berman. Both parties filed Replies. Oral argument was heard on November 10, 1987.

 Plaintiffs, 110 members of the House of Representatives, *fn1" contend that the reporting requirement of section 4(a)(1) of the War Powers Resolution, 50 U.S.C. sec. 1543(a)(1) (1982), was triggered by the July 22, 1987 initiation of United States escort operations in the Persian Gulf and by the September 21, 1987 attack on an Iranian Navy ship laying mines in the Persian Gulf. Specifically, plaintiffs contend that United States Armed Forces have been introduced, without a declaration of war, "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." 50 U.S.C. sec. 1543(a)(1). Plaintiffs petition this Court to declare that the President was required to file reports concerning both the July and September incidents and to order the President to submit a report concerning continued use of United States Armed Forces in the Persian Gulf within forty-eight hours of the order in this case. For the reasons stated below, the Court declines to accept jurisdiction and DISMISSES this action.

 I. THE WAR POWERS RESOLUTION

 The War Powers Resolution, *fn2" enacted over a presidential veto on November 7, 1973, sets forth procedures intended to guarantee Congress, in the absence of a declaration of war, an active role in all decisions concerning the deployment of United States Armed Forces into hostilities abroad. *fn3" The procedures set forth in the War Powers Resolution include the requirement that the President consult with Congress "in every possible instance" before introducing United States Armed Forces into hostilities *fn4" and, in any event, that the President submit a written report *fn5" to the Speaker of the House of Representatives and the President pro tempore of the Senate within forty-eight hours of introducing "United States Armed Forces . . . into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." *fn6" Although the War Powers Resolution provides for two other circumstances in which presidential reports must be filed, *fn7" it is only when a report is filed to reflect the introduction of troops "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances" that the Resolution's automatic withdrawal requirement is activated. *fn8" Under this withdrawal provision, the President must terminate the use of United States Armed Forces sixty days after a report is filed, or is required to be filed, *fn9" unless Congress declares war, enacts a specific authorization, extends the sixty-day period or is unable to meet due to an armed attack. *fn10" As drafted, the War Powers Resolution enabled Congress to require the President to withdraw United States Armed Forces prior to the expiration of sixty days by enacting a concurrent resolution to that effect. *fn11" In the aftermath of the Supreme Court's decision in Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983), however, it is conceded that this provision does not have the force and effect of law. *fn12"

  II. FACTS

 The current case concerns the application of the War Powers Resolution to recent activities of United States Armed Forces in the Persian Gulf. The Persian Gulf, a body of water partly bounded by Iran and Iraq, has become the site of numerous military incidents in the ongoing war between these two belligerents. *fn13" In response to an increase in attacks on commercial shipping during 1986, *fn14" Kuwait requested the United States to provide protection for Kuwaiti petroleum tankers passing through the Persian Gulf. *fn15" The United States responded affirmatively on March 7, 1987, *fn16" and the first reflagged tankers, escorted by United States Navy warships, entered the Persian Gulf by way of the Strait of Hormuz on July 22, 1987. *fn17" Two days later a reflagged tanker, the S.S. Bridgeton, was seriously damaged when it struck a mine. *fn18" On September 21, 1987, United States naval forces fired at an Iranian Navy ship that was laying mines in the Persian Gulf. *fn19"

 The executive and legislative branches gave prompt consideration to the applicability of the War Powers Resolution to these events. In the first of several official communications to Congress on the Persian Gulf situation, the President described the September 21, 1987 incident and stated his belief that the War Powers Resolution was unconstitutional. *fn20" Moreover, the Administration has stated that the War Powers Resolution does not apply to the escort operation in the Persian Gulf. *fn21" Legislative debate on this topic is reflected in the introduction of several bills to invoke the War Powers Resolution with regard to the situation in the Persian Gulf. *fn22" Recently, the Senate rejected Senator Brock Adams' bill to authorize the escort operations under the War Powers Resolution but moved to set new rules for handling future war powers disputes. *fn23" Congress also debated the question of whether the War Powers Resolution should be amended or even repealed. *fn24" Last summer, 110 Members of the House of Representatives and 3 Senators *fn25" filed the initial complaint in this action. An amended complaint was filed on September 29, 1987. In the amended complaint, plaintiffs dropped their claims against the Secretary of Defense and the Secretary of Transportation regarding the legality of the reflagging operation and retained only their claim against the President under the War Powers Resolution.

 III. ANALYSIS

 Plaintiffs' Motion for Summary Judgment and defendant's Motion to Dismiss are now before the Court. Plaintiffs seek to enforce the War Powers Resolution and, in their Motion, argue that that summary judgment is appropriate because the facts in this case are drawn entirely from official government sources and therefore cannot be disputed. Plaintiffs contend that they should prevail as a matter of law because these facts indicate the existence of "hostilities" and, therefore, trigger the section 4(a)(1) reporting requirement. Defendant, in contrast, maintains that this case should be dismissed because it does not present a justiciable controversy. Defendant argues that the doctrines of standing, political question and equitable discretion all preclude judicial review. Defendant also maintains that plaintiffs fail to state a claim for which relief may be granted because a private right of action cannot be implied under the War Powers Resolution. The parties do not present the constitutionality of the War Powers Resolution to this Court.

 This Court declines to exercise jurisdiction over this case in light of prudential considerations associated with the exercise of equity jurisdiction and the constraints of the political question doctrine. *fn26" If the Court were to decide whether the President is required to submit a report to Congress under section 4(a)(1) of the War Powers Resolution, the Court also would have to decide whether United States Armed Forces in the Persian Gulf either are engaged in "hostilities" or in "situations where imminent involvement in hostilities is clearly indicated by the circumstances." 50 U.S.C. sec. 1543 (a). Because the Court concludes that the exercise of federal jurisdiction in these circumstances would be both inappropriate and imprudent, the Court GRANTS defendant's Motion and DISMISSES this case.

 A. Remedial Discretion

 Courts in this Circuit have developed a doctrine of remedial discretion *fn27" under which the separation of powers issues inherent in all congressional plaintiff cases can be analyzed as part of a Court's threshold evaluation of the propriety of equity jurisdiction. *fn28" Relevant to the current case because the congressional plaintiffs herein seek declaratory and injunctive relief, this doctrine initially was set forth for this Circuit in Riegle v. Federal Open Market Committee.29 In Riegle, a United States Senator alleged that the procedures under the Federal Reserve Act, 12 U.S.C. sec. 221 et seq. (1982), pursuant to which reserve bank members were appointed to the Federal Open Market Committee were unconstitutional and therefore a mandatory injunction to prevent reserve bank members from voting on the Committee should issue. *fn30" Although the Court concluded in Riegle that the Senator had standing to sue, it nonetheless dismissed his case for want of equity. *fn31"

 In setting forth the facts of the case, the Riegle court noted that legislation which would have accomplished the Senator's objective had been introduced in the House of Representatives the previous year. *fn32" Although the legislation was not enacted, the Court stated that the plaintiff remained free to persuade his fellow legislators to amend the allegedly offensive statute. *fn33" In such circumstances, the Court reasoned, injunctive relief would "thwart[] Congress's [sic] will by allowing a plaintiff to circumvent the processes of democratic decisionmaking." *fn34" The Riegle Court concluded by stating that equitable discretion counsels judicial restraint with regard to "challenges concerning congressional action or inaction regarding legislation." *fn35"

 Although styled as a dispute between the legislative and executive branches of government, this lawsuit evidences and indeed is a by-product of political disputes within Congress regarding the applicability of the War Powers Resolution to the Persian Gulf situation. Before the filing of this lawsuit, several bills to compel the President to invoke section 4(a)(1) of the War Powers Resolution were introduced in Congress. *fn36" Bills also were introduced to alternately repeal and to strengthen the War Powers Resolution. *fn37" When this lawsuit was filed, Senator Brock Adams stated that he had joined as a plaintiff both to advance his substantive position and to resolve a question that Congress seemed unwilling to decide. *fn38" In light of this history, this Court concludes that plaintiffs' dispute is "primarily with [their] fellow legislators." *fn39"

 This Court declines to accept jurisdiction to render a decision that, regardless of its substance, would impose a consensus on Congress. Congress is free to adopt a variety of positions on the War Powers Resolution, depending on its ability to achieve a political consensus. If the Court were to intervene in this political process, it would be acting "beyond the limits inherent in the constitutional scheme." *fn40" Moreover, in view of a sponsor's statements that the determination of "hostilities" under the War Powers Resolution is a question for the executive and legislative branches, *fn41" federal jurisdiction would be especially inappropriate in this case. *fn42"

 Judicial review of the constitutionality of the War Powers Resolution is not, however, precluded by this decision. A true confrontation between the Executive and a unified Congress, as evidenced by its passage of legislation to enforce the Resolution, would pose a question ripe for judicial review. *fn43" Even if such a lawsuit were brought by congressional plaintiffs, judicial review would not be precluded on equitable grounds because the Court would not be interjecting itself into legislative debate. Indeed, the availability of constitutional review indicates that the apparent absence of a private right of action is not fatal to this Court's equitable disposition of this case under Riegle.44

 B. The Political Question Doctrine

 The profusion of relevant congressional activity also indicates that this case must be dismissed as a prudential matter under the political question doctrine. In a now-classic catalogue of conditions to which the political question doctrine applies, Mr. Justice Brennan stated in Baker v. Carr that:

 

prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non-judicial discretion; or the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question. *fn45"

 Mr. Justice Brennan also stated, with regard to cases concerning foreign relations, that these matters often "lie beyond judicial cognizance" due the need for a "single-voiced statement of the Government's views." *fn46" Mr. Justice Brennan noted, however, that it would be error to presume that all such cases are nonjusticiable absent "a discriminating analysis of the question posed." *fn47"

 Having analyzed the question in this case, the Court concludes that plaintiffs' request for declaratory relief presents a nonjusticiable political question. If the Court were to grant or deny declaratory relief, and decide whether United States Armed Forces stationed in the Persian Gulf are engaged in "hostilities or . . . [in] situations where imminent involvement in hostilities is clearly indicated by the circumstances," *fn48" the Court would risk "the potentiality of embarrassment [that would result] from multifarious pronouncements by various departments on one question." *fn49" Indeed, such a declaration necessarily would contradict legislative pronouncements on one side or the other of this issue. *fn50" Moreover, a declaration of "hostilities" by this Court could impact on statements by the Executive that the United States is neutral in the Iran-Iraq war and, moreover, might create doubts in the international community regarding the resolve of the United States to adhere to this position. *fn51" Because this Court concludes that the volatile situation in the Persian Gulf demands, in the words of Baker v. Carr, a "single-voiced statement of the Government's views," *fn52" the Court refrains from joining the debate on the question of whether "hostilities" exist in that region. *fn53"

 The Court nonetheless notes that, had the constitutionality of the War Powers Resolution been squarely presented, "these prudential considerations would [not have been relevant.]" *fn54" Indeed, if Congress had enacted a joint resolution stating that "hostilities" existed in the Persian Gulf for purposes of section 4(a)(1) of the War Powers Resolution, but if the President still refused to file a section 4(a) report, this Court would have been presented with an issue ripe for judicial review. *fn55" The Court's task then would have been to analyze the constitutional division of powers rather than to evaluate the seriousness of military activities. The former is within the purview of the judiciary. *fn56"

 IV. CONCLUSION

 This Court will not take jurisdiction of this suit to enforce the War Powers Resolution because of the constraints of the equitable discretion and political question doctrines. The constitutionality of the War Powers Resolution is not before the Court. Although adjudication of constitutional questions should not be encouraged, the courts nonetheless would have the responsibility of resolving the constitutionality of this provision if it were properly presented.

 Therefore, defendant's Motion to Dismiss is GRANTED and this case is DISMISSED.

 JUDGMENT ORDER

 In accordance with the Memorandum Opinion and Order entered in this case today, judgment is entered for defendant.


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