WASHINGTON, D.C. - Congressman Jesse L. Jackson, Jr., recently said "U.S. soldiers, parents of U.S. soldiers, and other congressional colleagues filed a lawsuit in a Boston Federal Court arguing that, according to the U.S. Constitution, President George W. Bush only has the authority to go to war in Iraq if Congress passes an official declaration of war - and Congress has not passed such a declaration.  Congress cannot willingly or voluntarily relinquish its constitutional authority and responsibility in this critical area."

Jackson further stated, "An invasion of Iraq would violate Article I, Section 8 of the United States Constitution, which states that `Congress shall have Power . . . to declare War.'  The Iraq Resolution passed by Congress on October 3, 2002, did not declare war and unlawfully ceded to the President that decision.  Historical records show that the framers of the Constitution sought to ensure that U.S. presidents did not have the power of European monarchs to single-handedly declare and wage war."

Charles Richardson, a plaintiff in the case, whose son is a U.S. Marine stationed in the Persian Gulf, said, "The President is not a king.  If he wants to launch a military invasion against Iraq, he must first seek a declaration of war from the United States Congress.  Our Constitution demands nothing less."  Richardson, along with Nancy Lessin and Jeffrey McKenzie - who are also plaintiffs in the case - is a co-founder of Military Families Speak Out, an organization who opposes a war against Iraq without a formal declaration, and who have family members in the military.  Lessin added: "A full and complete Congressional discussion of the issues and all options must precede any move towards war, because of the irreparable harm that would result."
 
John Bonifaz, the plaintiffs' lead attorney, said, "A war against Iraq without a congressional declaration of war will be illegal and unconstitutional.  It is time for the courts to intervene."

The plaintiffs filed a motion for a preliminary injunction, along with their complaint.  The motion seeks an immediate hearing on the request that the President be barred from launching a military invasion against Iraq without a congressional declaration of war.

(See following pages for a fuller explanation of the challenge)

A FULLER EXPLANATION OF THE LEGAL BASIS FOR CHALLENGING PRESIDENTIAL AUTHORITY TO WAGE WAR UNILATERALLY AGAINST IRAQ WITHOUT A FORMAL CONGRESSIONAL DECLARATION OF WAR

The Mandate of Article I, Section 8 of the U.S. Constitution

Article I, Section 8 of the United States Constitution states: "The Congress shall have Power To declare War_"  This simple and clear language requires that the decision of whether or not we, as a nation, go to war must be made by the elected body of the United States Congress.  By definition, it specifically prohibits the President of the United States from making that decision, as the authors of the Constitution deemed the power to wage war to be too great to place in the hands of one individual.  Under Article I, Section 8, U.S. presidents are denied the power held by monarchs of the past who, single handedly, could order their nation and their subjects to war.

In October 2002, the U.S. Congress passed a resolution that unconstitutionally delegated the power to declare war to the President.  The resolution, itself, does not declare war against any nation.  Rather, it states that the President "has authority under the Constitution to take action in order to deter and prevent acts of international terrorism against the United States_"  The resolution does not and cannot alter the express language of Article I, Section 8 of the Constitution.  Only a constitutional amendment could effect such change. 

U.S. Senator Robert C. Byrd grounded his opposition to that resolution in Article I, Section 8.  In his October 3, 2002 remarks on the Senate floor, he spoke of the Framers of the Constitution who foresaw "the frailty of human nature and the inherent danger of concentrating too much power in one individual.  That is why the Framers bestowed on Congress, not the President, the power to declare war."  He cited James Madison, who wrote in 1793:

Thus, the President cannot rely on an unconstitutional delegation of power to him in order to wage war on Iraq or on any other nation.  He must seek a formal declaration of war from the U.S. Congress, as required by Article I, Section 8.  If the President chooses to send the United States into war without such a congressional declaration, he and his subordinates in the Executive Branch will be in direct violation of the U.S. Constitution.  A war with Iraq, without a congressional declaration of war, will be illegal and unconstitutional. 

A Constitutional Challenge

President Bush's continued march toward war without a congressional declaration demands judicial intervention. 

To initiate that judicial intervention, a group of plaintiffs and members of Congress today filed a lawsuit in federal court against the President and Secretary of Defense Donald Rumsfeld, seeking to enjoin them from waging war without a congressional declaration.

During the Vietnam War, the U.S. Court of Appeals for the Second Circuit heard a series of cases challenging the authority of the executive branch to wage war.  In Orlando v. Laird, 443 F 2d 1039 (2nd Cir. 1971), the federal appeals court reiterated an earlier holding that "the constitutional delegation of the war-declaring power to the Congress contains a discoverable and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war."  Id. at 1042.  It further stated: "Judicial scrutiny of that duty, therefore, is not foreclosed by the political question doctrine."  Id.  The Second Circuit held that "the test is whether there is any action by the Congress sufficient to authorize or ratify the military activity in question."  Id.

The court in Orlando found that "[t]he Congress and the Executive have taken mutual and joint action in the prosecution and support of military operations in Southeast Asia from the beginning of those operations."  Id.  The court cited the following evidence to support this holding: 1) the Gulf of Tonkin Resolution passed by Congress in 1964; 2) congressional action "appropriating billions of dollars to carry out military operations in Southeast Asia;" and 3) congressional action "extending the Military Selective Service Act with full knowledge that persons conscripted under that Act had been, and would continue to be sent to Vietnam."  Id.

In a subsequent opinion, the Second Circuit found that the congressional repeal of the Gulf of Tonkin Resolution in 1970 did not remove congressional authorization for the war.  DaCosta v. Laird, 448 F. 2d 1368 (2nd Cir. 1971).  The court held: "[T]here was sufficient legislative action in extending the Selective Service Act and in appropriating billions of dollars to carry on military and naval operations in Vietnam to ratify and approve the measures taken by the Executive, even in the absence of the Gulf of Tonkin Resolution."  Id. at 1369.

Our constitutional challenge to President Bush's authority to wage war against Iraq is clearly distinguishable from the Second Circuit's holdings in the Vietnam War cases.  The Vietnam War cases were brought in the late 1960s and early 1970s, long after the war had begun.  This case is being brought prior to the start of a war.  Congress has yet to pass any military appropriation acts for this war and has yet to initiate a military draft.  The only action Congress has taken is the passage of the congressional resolution last October which, far from declaring war, cedes unconstitutionally to the President the power to declare war.

Further, the legislative history demonstrates that Members of Congress who voted for the Iraq resolution were not voting to declare war.  Statements on the floors of the House and the Senate by resolution proponents during the debate support this fact.  In addition, on January 24, 2003, 123 Members of Congress sent a letter to the President stating that "the U.S. should make every attempt to achieve Iraq's disarmament through diplomatic means and with the full support of our allies."  The congressional signers included 22 who had voted for the resolution.  See "Members of House petition for caution," The Boston Globe, January 25, 2003, A1.

Assembling the plaintiffs

The Vietnam War cases indicate that members of the armed forces have standing to bring this kind of constitutional challenge.  This standing should also extend to relatives of those potentially being sent to war.

The Law Offices of Cristobal Bonifaz, a law firm based in Amherst and Boston, Massachusetts, identified a member of the armed forces and family members who were willing to participate in the lawsuit.

Finally, Members of Congress have standing on the grounds that they are being stripped of their power, provided to them by Article I, Section 8, to vote on whether or not to declare war.

Conclusion

A reporter recently stated to President Bush that it appeared inevitable that the nation was headed toward war with Iraq.  The president responded:  "That's not for you to decide.  That's for me to decide."

Actually, it is for neither of them to decide.  Congress is the governmental body under the U.S. Constitution which retains the sole power to decide whether or not this nation goes to war.

George W. Bush is not a king.  If he wants to go to war against Iraq, he must seek and receive a declaration of war from the United States Congress.  Our Constitution requires nothing less.