Not-so-stupid question about ending the war
Earl Maltz
emaltz at camden.rutgers.edu
Mon Apr 2 05:36:02 PDT 2007
Marty's response points up an important point about the political question
doctrine--that the conclusion that a case presents a political question is,
in practical terms, tantamount to a decision on the merits. Nonetheless, a
holding based on PQ is analytically different, reflecting a conclusion that
this is simply not something the courts should mess with.
I will defer to others who know more about federal jurisdiction than
I. But my sense is that a declaratory judgment is appropriate only in a
case where the judiciary might eventually intervene in a more coercive
manner if one of the parties acts in a manner inconsistent with the legal
principles on which it is based. Otherwise, the declaratory judgment would
seem to be nothing more than an advisory opinion.
Against this background, I stand by my argument. I believe the Court has
NEVER intervened in a troop deployment decision (as opposed to a decision
on whether a person can be forced to join the military). For good reason.
At 11:41 PM 4/1/2007 -0500, Marty Lederman wrote:
>Must concede I don't quite understand these responses. The provisions in
>question are not restrictions on expenditures, so neither the
>Anti-Deficiency Act nor the Appropriations Clause would be
>relevant. (P.S. For what it's worth, I disagree that a funding
>restriction is "surely the most constitutionally defensible vehicle to
>restrict presidential authority in this area.")
>
>Congress enacts a statute. The President violates it. The violation
>harms private parties, who sue for injunctive relief -- they seek an
>injunction from the Court compelling the Executive to comply with the
>statute. (There are several such cases in every Term of the Supreme
>Court.) The President defends on the ground that the statute violates the
>Commander-in-Chief Clause. To say "textually demonstrable commitment"
>doesn't really get you anywhere. The question is whether the President's
>CINC authority trumps Congress's article I powers. The answer to that
>question is not "committed" to one political branch or the other. The
>Court can decide it the same way it decides any other question of the
>constitutionality of a statute, going all the way back to Marbury and
>M'Culloch.
>
>"Lack of judicially manageable standards"? How so? Was there a lack of
>such manageable standards in Little v. Barreme? In Milligan? In
>Rasul? In Hamdan? In Duncan? In Endo? In Youngstown? In Chadha? In
>Myers? In Humphrey's Executor? In Morrison v. Olson? In Bowsher? In
>Plaut? In U.S. v. Nixon? In Nixon v. Administratror? In Clinton v.
>Jones? In dozens of other separation-of-powers cases the Court has decided?
>
>The "judiciary deciding where and when troops should be deployed in a
>theater"? Hardly. It would be the judiciary deciding whether it was
>constitutional for Congress to decide when armed conflict in a particular
>nation should effectively end.
>
>
>----- Original Message -----
>From: "Rosenthal, Lawrence"
><<mailto:rosentha at chapman.edu>rosentha at chapman.edu>
>To: "Earl Maltz"
><<mailto:emaltz at camden.rutgers.edu>emaltz at camden.rutgers.edu>; "Marty
>Lederman" <<mailto:marty.lederman at comcast.net>marty.lederman at comcast.net>;
><<mailto:CONLAWPROF at lists.ucla.edu>CONLAWPROF at lists.ucla.edu>;
><<mailto:jfnbl at earthlink.com>jfnbl at earthlink.com>
>Sent: Sunday, April 01, 2007 10:15 PM
>Subject: RE: Not-so-stupid question about ending the war
>
>To elaborate further: If Congress required redeployment or withdrawal of
>troops through a funding restriction or a refusal to appropriate
>additional funds -- surely the most constitutionally defensible vehicle to
>restrict presidential authority in this area -- then the President, if he
>chose to continue to expend funds to support troops in the field, would
>violate the Anti-Deficiency Act, which enforces the Appropriations Clause
>of the Constitution. The Anti-Deficiency Act, however, provides for
>criminal and administrative penalties, not injunctive relief. See
><http://www.gao.gov/ada/antideficiency.htm>http://www.gao.gov/ada/antideficiency.htm.
>The Constitution's text suggests, moreover, that the remedy for a crime
>committed by the President is impeachment, and not an action for an
>injunction. This is consistent with the longstanding rule of equity
>jurisprudence that a court of equity will not enjoin a crime. Given the
>remedy that Congress has itself chosen for a violation of the
>Anti-Deficiency Act, the constitutional directive for impeachment as the
>sole remedy for "high crimes and misdemeanors," and the many prudential
>reasons for the courts to stay out of the business of controlling troop
>deployments, the arguments for nonjusticiability are powerful.
>
>Larry Rosenthal
>Chapman University School of Law
>
>
>________________________________
>
>From:
><mailto:conlawprof-bounces at lists.ucla.edu>conlawprof-bounces at lists.ucla.edu
> on behalf of Earl Maltz
>Sent: Sun 4/1/2007 7:44 PM
>To: Marty Lederman;
><mailto:CONLAWPROF at lists.ucla.edu>CONLAWPROF at lists.ucla.edu;
><mailto:jfnbl at earthlink.com>jfnbl at earthlink.com
>Subject: Re: Not-so-stupid question about ending the war
>
>
>
>To elaborate on the previous suggestion that the case would present a
>political question.
>
>1. Textually demonstrable commitment--the president is commander in chief.
>
>2. Lack of judicially manageable standards/ embarrassment from
>multifarious pronouncements--the judiciary deciding where and when troops
>should be deployed in a theater where (under any circumstances) at least
>some American troops will be in harm's way for at least the intermediate
>term. Sounds like a GREAT idea to me. Or are all American troops going to
>be ordered home by some judge. How fast? In what order? etc.
>
>I hate this catastrophic war as much as anybody; I only wish that Bush's
>daughters were in harm's way. Then things might have been different. But
>to have the judiciary intervene will create insuperable problems and set a
>terrible precedent.
>
>
>At 04:27 PM 4/1/2007 -0500, Marty Lederman wrote:
> >Of course it would be justiciable. Simply find as a plaintiff a member of
> >the Armed Forces who is asked to serve in Iraq after August 28, 2008, but
> >who wishes to decline to do so because, inter alia, it would be
> >unlawful. Perhaps the injunction could only run in favor of a class of
> >persons in the armed forces who do not wish to be deployed to Iraq (i.e.,
> >perhaps the injunction could not extend to persons who are willing to
> >serve notwithstanding the statutory restriction); still, a judicial
> >declaration, upheld by the Supreme Court, that it's unlawful for Bush to
> >deploy troops to Iraq and that those troops who do not wish to go may not
> >be penalized for declining, would in effect bring the war to an end. Or
> >bring the constitutional crisis to a head, anyway.
> >----- Original Message -----
> >From:
> <<mailto:jfnbl at earthlink.com>jfnbl at earthlink.com>mailto:jfnbl at earthlink.com>jfnbl at earthlink.com
> >To:
> <<mailto:CONLAWPROF at lists.ucla.edu>CONLAWPROF at lists.ucla.edu>mailto:CONLAWPROF at lists.ucla.edu>CONLAWPROF at lists.ucla.edu
> >Sent: Sunday, April 01, 2007 1:45 PM
> >Subject: Re: Here's a Stupid Question!
> >
> >At 11:35 AM -0500 1/4/07, Marty Lederman wrote:
> >>Of course, at the point in August 2008 when Bush fails to comply,
> >>Congress and the courts could step in to try to force compliance.
> >>
> >
> >Emphasis added. Is it even arguably justiciable/remediable? Is there any
> >meaningful recourse other than impeachment?
> >
> >John Noble
> >
> >
> >----------
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