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Dennis Kucinich, et al v. Barack Obama

October 20, 2011


The opinion of the court was delivered by: Reggie B. Walton United States District Judge


This case in which the plaintiffs, ten members of the United States House of Representatives, filed a five-claim complaint against the defendants alleging, among other things, violations of the War Powers Clause of the United States Constitution, U.S. Const. art. I, § 8, cl. 2, and the War Powers Resolution, 50 U.S.C. §§ 1541-1548 (2006), is before the Court on the defendants' motion to dismiss. For the reasons explained below, the defendants' motion will be granted.*fn1


Viewed in the light most favorable to the plaintiffs, the facts currently before the Court are as follows. On March 19, 2011, President Barack Obama ordered United States military forces to attack the "armed government forces of Libya." Compl. ¶ 31. "Before attacking the government of Libya, President Obama did not seek or receive [the] approval of Congress in any form." Id. ¶ 33. "In a March, 21, 2011 report to Congress, President Obama claimed authority for U.S. military action in Libya pursuant to his 'constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.'" Id. ¶ 108 (quoting Mar. 21, 2011 Letter from President Barack Obama to Speaker of the House and President Pro Tempore of the Senate). On March 31, 2011, the North Atlantic Treaty Organization ("NATO") officially assumed command of the military operations in Libya, including the command of U.S. forces, id.

¶ 40, although the President and the Secretary of Defense still "hold ultimate command authority over U.S. troops operating under NATO command," id. ¶ 49. The Obama Administration "never received the approval of Congress for committing U.S. military forces to the NATO operation in Libya." Id. ¶ 48.

Prior to this initiation of military force, "Libya did not attack the United States or any NATO member," id. ¶ 44, nor has Libya been "cited as a threat to the United States or any NATO member," id. ¶ 45. Further, President Obama has explained that the U.S. military actions in Libya are "not a response to a direct threat to the United States or even an effort to combat terrorism." Id. ¶ 57. "The Obama Administration has denied that the Libyan operations are a war and, on March 24, 2011, White House Spokesman Jay Carney stated that the Administration had defined these combat operations as a 'time-limited, scope-limited military action.'" Id. ¶ 75. "On May 20, 2011, President Obama sent a letter to congressional leadership informing it that th[e] Administration [had] concluded that the War Powers Resolution [did] not apply to the U.S. involvement in Libya because of the limited nature of that involvement." Id. ¶ 139. Then, on June 3, 2011, the House of Representatives passed a resolution "declaring that the President shall not deploy, establish, or maintain the presence of units and member of the [U.S.] Armed Forces on the ground in Libya. Id. ¶ 143. "On June 14, 2011, Speaker [of the House John] Boehner sent a letter to President Obama informing him that the ninety-day period under the War Powers Resolution would pass on June 17th and that the President ha[d] failed to comply with the statute."*fn3 Id. ¶ 142.

As of June 15, 2011, the date on which the complaint commencing this litigation was filed, "the Obama Administration had yet to ask Congress for specific funding for the" military action in Libya, id. ¶ 84, nor had the Administration sought "a declaration of war from Congress or even congressional approval for the" military action, id. ¶ 85. The military actions undertaken by the United States in Libya appear to have been funded "in large part through [the] use of general funds appropriated by Congress." Id. ¶ 86. The plaintiffs point to information from the Department of Defense, estimating that the Administration had, within the first ten days of U.S. military action in Libya, expended approximately $550 million in the Libyan rebellion. Id. ¶ 87. "These funds have been made available through 'cash flowing,' by which the Department of Defense reallocates funds originally dedicated for other purposes. While these funds may allow for broad discretionary spending, [the plaintiff contends that] the Administration has asserted the right to use these funds for an unauthorized war." Id. ¶¶ 90-91. Congress has apparently "set aside funds for Overseas Contingency Operations," id. ¶ 92, which "can be used only for 'contingency operations directly related to the global war on terrorism,'" id. ¶ 93 (source of internal quotation not attributed in original), but President Obama "has never claimed that the Libyan War commenced as an anti-terrorism operation," id. ¶ 94. According to the plaintiffs, "[t]he Administration appears to have expended over $750 million for the Libyan War from discretionary funds without any authorization to use these funds to prosecute a war in Libya." Id. ¶ 96. And the plaintiffs represent that the President's use of these funds has "circumvented the need to seek authorization of funding from Congress until the war has been prosecuted for months." Id. ¶ 100.

The plaintiffs are ten members of Congress. Id. ¶¶ 9-18. Their complaint seeks and Order from this Court: (1) declaring that the military operations in Libya constitute a war for the purposes of Article I of the United States Constitution and are therefore unconstitutional absent a declaration of war from Congress; (2) declaring unconstitutional the policy that the President may unilaterally extend the North Atlantic Treaty to cover military operations against a country that had not attacked a NATO country; (3) declaring unconstitutional the policy that the President may unilaterally extend the North Atlantic Treaty to cover combat operations without satisfying the constitutional process of the United States; (4) declaring unconstitutional the policy of the Administration that a United Nations resolution can negate the obligation of the President to seek approval of a war or military operations from Congress; (5) declaring unconstitutional the policy of the Administration that the President may use previously appropriated funds to support "an undeclared war"; (6) providing injunctive relief suspending all U.S. military operations in Libya absent a declaration of war from Congress; and (7) awarding attorneys' fees and costs to the plaintiffs. Id. at 35-36 ¶¶ a-i.

On August 19, 2011, the defendants responded to the plaintiffs' complaint by filing the motion to dismiss that is the subject of this Memorandum Opinion. The defendants assert that the complaint must be dismissed because the claims alleged in the complaint are non-justiciable. Defs.' Mem. at 3. Essentially, the defendants maintain that the plaintiffs have not satisfied the elements of legislative or taxpayer standing, id. at 1-2, and that the plaintiffs' claims raise political questions that are "inappropriate for judicial resolution," id. at 2. The plaintiffs, not surprisingly, contest the defendants' challenges, maintaining that they have demonstrated both legislative, Pls.' Mem. at 13, and taxpayer standing, id. at 22, and that their challenges to U.S. military action in Libya do not present political questions, id. at 30. The Court will evaluate each argument in turn.


The defendants seek dismissal under Federal Rule of Civil Procedure 12(b)(1). Rule 12(b)(1) provides for the dismissal of claims for which the factual allegations in the complaint do not sufficiently establish the court's subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). In deciding a motion to dismiss challenging the Court's subject-matter jurisdiction under this Rule, a court "must accept as true all of the factual allegations contained in the complaint" and draw all reasonable inferences in favor of the plaintiff, Brown v. District of Columbia, 514 F.3d 1279, 1283 (D.C. Cir. 2008), but courts are "not required . . . to accept inferences unsupported by the facts or legal conclusions that are cast as factual allegations," Rann v. Chao, 154 F. Supp. 2d 61, 64 (D.D.C. 2001). Additionally, the "court may consider such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction in the case." Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000). Ultimately, however, the plaintiff bears the burden of establishing the Court's jurisdiction, Rasul v. Bush, 215 F. Supp. 2d 55, 61 (D.D.C. 2002), and where subject-matter jurisdiction does not exist, "the court cannot proceed at all in any cause," Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998).


"Federal courts are courts of limited jurisdiction[, possessing] only that power authorized by Constitution and statute," Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and it is a "fundamental axiom" that Article III of the Constitution bestows upon federal courts "the power of judicial review extending only to 'Cases' and 'Controversies,'" Mahorner v. Bush, 224 F. Supp. 2d 48, 49 (D.D.C. 2002) (quoting U.S. Const. art. III, § 2). "In an attempt to give meaning to Article III's case-or-controversy requirement, the courts have developed a series of principles termed 'justiciability doctrines,' among which are standing[,] ripeness, mootness, and the political question doctrine." Nat'l Treasury Employees Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)); see also Kucinich v. Bush, 236 F. Supp. 2d 1, 3 (D.D.C. 2002) (observing that the justiciability doctrines "all arise out of the 'bedrock requirement' that courts hear only 'cases and controversies'" (quoting Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982))). Because the Supreme Court has explained that "[t]he federal courts are under an independent ...

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