statute specifying composition of the Federal Open Market Committee); Riegle, supra (same). In the former situation, the congressional plaintiff has available to him the remedy of changing or enforcing internal rules of Congress, and in the latter, that of repealing or amending the allegedly unconstitutional statute.
The plaintiffs in this case do not have a remedy available from their fellow legislators. While action remains open to them which would make the issues involved more concrete, and hence make the matter ripe for review by the Court,
these actions would not remedy the threatened harm plaintiffs assert. A joint resolution counselling the President to refrain from attacking Iraq without a congressional declaration of war would not be likely to stop the President from initiating such military action if he is persuaded that the Constitution affirmatively gives him the power to act otherwise.
Plaintiffs in the instant case, therefore, cannot gain "substantial relief" by persuasion of their colleagues alone. The "remedies" of cutting off funding to the military or impeaching the President are not available to these plaintiffs either politically or practically. Additionally, these "remedies" would not afford the relief sought by the plaintiffs -- which is the guarantee that they will have the opportunity to debate and vote on the wisdom of initiating a military attack against Iraq before the United States military becomes embroiled in belligerency with that nation.
Although, as discussed above, the Court rejects several of defendant's objections to the maintenance of this lawsuit, and concludes that, in principle, an injunction may issue at the request of Members of Congress to prevent the conduct of a war which is about to be carried on without congressional authorization, it does not follow that these plaintiffs are entitled to relief at this juncture. For the plaintiffs are met with a significant obstacle to such relief: the doctrine of ripeness.
It has long been held that, as a matter of the deference that is due to the other branches of government, the Judiciary will undertake to render decisions that compel action by the President or the Congress only if the dispute before the Court is truly ripe, in that all the factors necessary for a decision are present then and there. The need for ripeness as a prerequisite to judicial action has particular weight in a case such as this. The principle that the courts shall be prudent in the exercise of their authority is never more compelling than when they are called upon to adjudicate on such sensitive issues as those trenching upon military and foreign affairs. Judicial restraint must, of course, be even further enhanced when the issue is one -- as here -- on which the other two branches may be deeply divided. Hence the necessity for determining at the outset whether the controversy is truly "ripe" for decision or whether, on the other hand, the Judiciary should abstain from rendering a decision on ripeness grounds.
In the context of this case, there are two aspects to ripeness, which the Court will now explore.
A. Actions By the Congress
No one knows the position of the Legislative Branch on the issue of war or peace
with Iraq; certainly no one, including this Court, is able to ascertain the congressional position on that issue on the basis of this lawsuit brought by fifty-three members of the House of Representatives and one member of the U.S. Senate. It would be both premature and presumptuous for the Court to render a decision on the issue of whether a declaration of war is required at this time or in the near future
when the Congress itself has provided no indication whether it deems such a declaration either necessary, on the one hand, or imprudent, on the other.
For these reasons, this Court has elected to follow the course described by Justice Powell in his concurrence in Goldwater v. Carter, 444 U.S. 996, 62 L. Ed. 2d 428, 100 S. Ct. 533 (1979). In that opinion, Justice Powell provided a test for ripeness in cases involving a confrontation between the legislative and executive branches that is helpful here.
In Goldwater, President Carter had informed Taiwan that the United States would terminate the mutual defense treaty between the two countries within one year. The President made this announcement without the ratification of the Congress, and members of Congress
brought suit claiming that, just as the Constitution required the Senate's ratification of the President's decision to enter into a treaty, so too, congressional ratification was necessary to terminate a treaty.
Justice Powell proposed that "a dispute between Congress and the President is not ready for judicial review unless and until each branch has taken action asserting its constitutional authority." Id. at 997. He further explained that in Goldwater there had been no such confrontation because there had as yet been no vote in the Senate as to what to do in the face of the President's action to terminate the treaty with Taiwan, and he went on to say that the
Judicial Branch should not decide issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse. Otherwise we would encourage small groups or even individual Members of Congress to seek judicial resolution of issues before the normal political process has the opportunity to resolve the conflict. . . It cannot be said that either the Senate or the House has rejected the President's claim. If the Congress chooses not to confront the President, it is not our task to do so.
444 U.S. at 997-98.
Justice Powell's reasoning commends itself to this Court. The consequences of judicial action in the instant case with the facts in their present posture may be drastic, but unnecessarily so. What if the Court issued the injunction requested by the plaintiffs, but it subsequently turned out that a majority of the members of the Legislative Branch were of the view (a) that the President is free as a legal or constitutional matter to proceed with his plans toward Iraq without a congressional declaration of war,
or (b) more broadly, that the majority of the members of this Branch, for whatever reason, are content to leave this diplomatically and politically delicate decision to the President?
It would hardly do to have the Court, in effect, force a choice upon the Congress
by a blunt injunctive decision, called for by only about ten percent of its membership, to the effect that, unless the rest of the Congress votes in favor of a declaration of war, the President, and the several hundred thousand troops he has dispatched to the Saudi Arabian desert, must be immobilized. Similarly, the President is entitled to be protected from an injunctive order respecting a declaration of war when there is no evidence that this is what the Legislative Branch as such -- as distinguished from a fraction thereof -- regards as a necessary prerequisite to military moves in the Arabian desert.
All these difficulties are avoided by a requirement that the plaintiffs in an action of this kind be or represent a majority of the Members of the Congress: the majority of the body that under the Constitution is the only one competent to declare war, and therefore also the one with the ability to seek an order from the courts to prevent anyone else, i.e., the Executive, from in effect declaring war. In short, unless the Congress as a whole, or by a majority, is heard from, the controversy here cannot be deemed ripe; it is only if the majority of the Congress seeks relief from an infringement on its constitutional war-declaration power that it may be entitled to receive it.
B. Actions Taken By the Executive
The second half of the ripeness issue involves the question whether the Executive Branch of government is so clearly committed to immediate military operations that may be equated with a "war" within the meaning of Article I, Section 8, Clause 11, of the Constitution that a judicial decision may properly be rendered regarding the application of that constitutional provision to the current situation.
Plaintiffs assert that the matter is currently ripe for judicial action because the President himself has stated that the present troop build-up is to provide an adequate offensive military option in the area. His successful effort to secure passage of United Nations Resolution 678, which authorizes the use of "all available means" to oust Iraqi forces remaining in Kuwait after January 15, 1991, is said to be an additional fact pointing toward the Executive's intention to initiate military hostilities against Iraq in the near future.
The Department of Justice, on the other hand, points to statements of the President that the troops already in Saudi Arabia are a peacekeeping force to prove that the President might not initiate more offensive military actions.
In addition, and more realistically, it is possible that the meetings set for later this month and next between President Bush and the Foreign Minister of Iraq, Tariq Aziz, in Washington, and Secretary of State James Baker and Saddam Hussein in Baghdad, may result in a diplomatic solution to the present situation,
and in any event under the U.N. Security Council resolution there will not be resort to force before January 15, 1991.
Given the facts currently available to this Court, it would seem that as of now the Executive Branch has not shown a commitment to a definitive course of action sufficient to support ripeness.
In any event, however, a final decision on that issue is not necessary at this time.
Should the congressional ripeness issue discussed in Part V-A above be resolved in favor of a finding of ripeness as a consequence of actions taken by the Congress as a whole, there will still be time enough to determine whether, in view of the conditions as they are found to exist at that time, the Executive is so clearly committed to early military operations amounting to "war" in the constitutional sense that the Court would be justified in concluding that the remainder of the test of ripeness has been met. And of course an injunction will be issued only if, on both of the aspects of the doctrine discussed above, the Court could find that the controversy is ripe for judicial decision. That situation does not, or at least not yet, prevail, and plaintiffs' request for a preliminary injunction will therefore not be granted.
For the reasons stated, it is this 13th day of December, 1990
ORDERED that plaintiffs' motion for preliminary injunction be and it is hereby denied.