called "joint" and the Senate resolution "concurrent," the two were never reconciled and exhibit differences. Id. at Exhibits 21 & 22. President Bush and Secretary of State Baker have suggested that the Executive Branch and Congress differ as to what they view as the President's constitutional obligation in exercising the war powers. Id. at Exhibits 18 & 25. On November 19, 1990, the United Nations Security Council passed Resolution 678 sanctioning the use of "all necessary means" to force Iraq out of Kuwait unless Iraq withdraws its troops from Kuwait by January 15, 1991.
II. Plaintiff's War Powers Challenges Are Political Questions Over Which This Court Declines to Exercise Jurisdiction.
Ange's lawsuit challenging the President's authority implicates the War Powers Resolution and various provisions of the Constitution. The War Powers Resolution, passed over President Nixon's veto in 1973, requires the President to report in writing to specified members of the House of Representatives and the Senate when, absent a declaration of war, the President introduces armed forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." 50 U.S.C. § 1543(a)(1). The War Powers Resolution provides that any use of U.S. armed forces must be terminated within sixty days after a report is submitted or is required to be submitted, unless Congress has declared war, enacted specific authorization for such use of the armed forces, extended by law the sixty day period, or is physically unable to meet as a result of an armed attack. 50 U.S.C. § 1544(b).
The various constitutional provisions cited by both parties to support their positions regarding the respective war powers of the executive and legislative branches, are set forth below. To support his position that the President's deployment orders are unconstitutional, Ange cites the provisions of the Constitution which state that "Congress shall have the power . . . to declare war . . ." and that Congress has the power to make such other laws as "shall be necessary and proper for carrying into Execution its enumerated powers." U.S. Const. art. I, § 8, cls. 11 & 18. The President, on the other hand, cites different provisions of the Constitution to establish the constitutionality of the deployment orders and the continued deployment of U.S. forces in the Persian Gulf: "the executive powers shall be vested in a President of the United States of America," and the "President shall be Commander in Chief of the Army and Navy . . . ." U.S. Const. art. II, § 2, cl. 1. The President also cites the provision requiring the President to "take care that the laws be faithfully executed." U.S. Const. art. II, § 3.
Ange's challenge to the President's deployment order is threefold. Ange claims first that the deployment to date violates the Constitution's War Powers Clause; second, that Ange faces a realistic threat that the President may initiate an offensive war against Iraq in further violation of the War Powers Clause; and third, that the President's deployment order violates the War Powers Resolution. Ange asks the court to issue an injunction requiring that he be returned to the United States on the grounds that his deployment violates the War Powers Clause of the Constitution and the War Powers Resolution.
While Ange takes pains to draft three different challenges to the President's deployment of U.S. military forces in the Persian Gulf, all three claims share one common denominator: the Constitution's allocation of war powers among the executive and legislative branches. If the court were to determine whether the President's deployment to date violates the War Powers Clause, or whether Ange might be ordered into an allegedly unconstitutional "offensive" war, or whether the President's deployment order violates the War Powers Resolution, the court would have to determine precisely what allocation of war power the text of the Constitution makes to the executive and legislative branches.
In Ange's own words, the War Powers Resolution "embodies Congress' search for a legal mechanism to enforce the congressional war-making power." Plaintiff's Supporting Memorandum at 21. The scope of the respective war powers of the executive and legislative branches is implicated by application of the War Powers Resolution in the present case. In order to determine whether the President has violated the War Powers Resolution, this court would necessarily have to determine whether the President, under the Constitution, was or is constitutionally required to comply with the provisions of the War Powers Resolution.
The determination sought by Ange in each of his three challenges to the President's actions in the Persian Gulf is one which the judicial branch cannot make pursuant to the separation of powers principles embodied in the court's equitable discretion and in the political question doctrine. The conditions triggering unreviewability under the political question doctrine were spelled out by the Supreme Court:
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.
Baker v. Carr, 369 U.S. 186, 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). Most, if not all, of the conditions voiced in Baker v. Carr exist in the present case.
Primary among the conditions is the "textually demonstrable constitutional commitment" of the war powers to both political branches and the "respect due" the political branches in allowing them to resolve this long-standing dispute over the war powers by exercising their constitutionally conferred powers. In Harisiades v. Shaughnessy, 342 U.S. 580, 589, 96 L. Ed. 586, 72 S. Ct. 512, reh'g denied, 343 U.S. 936, 96 L. Ed. 1344, 72 S. Ct. 767 (1952), the Supreme Court stated that "policies in regard to the conduct of foreign relations [and] the war power . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." Resolution of the present conflict in the Gulf, and the proper role of the legislative and executive branches in that resolution, brings the foreign relations and war powers of both political branches into play.
While the Constitution appears to grant the executive and legislative branches certain powers which either directly or indirectly affect the conduct of foreign affairs, the scope of power wielded by either branch is not clearly spelled out in the text of the Constitution.
The numerous lawsuits in this circuit which have questioned the allocation of war powers as between the two political branches supports the conclusion that the allocation provided by the framers of the Constitution in the text of that document is far from clear. See e.g., Mitchell v. Laird, 159 U.S. App. D.C. 344, 488 F.2d 611 (D.C. Cir. 1973) (U.S. military involvement in Indochina); Dellums v. Bush, No. 90-2866 (D.D.C. filed Nov. 20, 1990) (Saudi Arabia/Persian Gulf deployment); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (U.S. reflagging and military escort operation in Persian Gulf); Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982), aff'd, 720 F.2d 1355, 232 U.S. App. D.C. 128 (1983), cert. denied, 467 U.S. 1251, 82 L. Ed. 2d 839, 104 S. Ct. 3533 (1984) (U.S. military aid to El Salvador).
The judicial branch, on the other hand, is neither equipped nor empowered to intrude into the realm of foreign affairs where the Constitution grants operational powers only to the two political branches and where decisions are made based on political and policy considerations. The far-reaching ramifications of those decisions should fall upon the shoulders of those elected by the people to make those decisions. Certainly, "nothing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require [the judicial branch] to equate [its] political judgment with that of Congress," Harisiades v. Shaughnessy, 342 U.S. at 590, or of the President. As the Supreme Court stated:
even if courts could require full disclosure, the very nature of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither the aptitude, facilities nor responsibility and which has long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.