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LOWRY v. REAGAN

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

 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"

 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. ...


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