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Even if the plaintiffs had standing, the defendants argued, "equitable considerations" should lead the court to dismiss the action. First, they noted again that both the War Powers Resolution and section 502B of the Foreign Assistance Act provided legislative mechanisms for the enforcement of their provisions to which the plaintiffs could turn. Moreover, they pointed out, since Congress had the power of the purse, and the relevant legislative committees exercised oversight responsibility over foreign assistance, the plaintiffs had other options available if the court declined to intervene.
Finally, the defendants contended that the plaintiffs had failed to establish any private right of action which would entitle them to the relief they sought. Neither of the statutes at issue—the War Powers Resolution and section 502B of the Foreign Assistance Act-expressly created such a private right of action they said, and Congress, in the legislative history, indicated no intent to create an implied right of action under either statute.
Also on July 31, 1981, the day the defendants filed their motion to dismiss, the plaintiffs filed an amended complaint. The only differences between the original complaint and the amended version were the addition of a number of plaintiffs; 3 the removal of two paragraphs (44 and 45), and several typographical corrections.
On August 7, 1981, the defendants filed a second motion to dismiss in response to the amended complaint. Since the causes of action had not been changed in the new complaint, the defendants simply referred the court to their earlier memorandum in support of the motion to dismiss.
On August 24, 1981, the plaintiffs filed a reply to the prospective intervenors' response to the oppositions for leave to intervene. The brief reply reiterated many of their previous arguments regarding the character of the lawsuit and the text of the War Powers Resolution.
On October 14, 1981, the plaintiffs filed a memorandum in opposition to the defendants' motion to dismiss the complaint which responded to their arguments on justiciability, standing, equitable discretion, and right of action. Terming the defendants' contentions "horses of the same color and their name is ‘leave war-making to the President'," the plaintiffs asserted that:
the legislative enactments central to this suit, the War Powers Resolution (WPR) and Section 2304(a) of the Foreign Assistance Act, were adopted precisely with a view to the kind of facts which have given rise to this dispute, and ... judicial failure to take cognizance thereof would do violence to the fundamental principle of ubi jus ibi remedium (where there is a law there must be a remedy), and thereby sanction executive lawlessness. [Statement of Points and Authorities in Opposition to Defendants' Motion to Dismiss, October 14, 1981, at 1]
* The additional plaintiffs were Representatives Anthony C. Beilenson, Phillip Burton, William Clay, Robert W. Edgar, Walter Fauntroy, Thomas Foglietta, Robert Garcia, William H. Gray III, Michael E. Lowry, George Miller III, Parren J. Mitchell, James L. Oberstar, Frederick W. Richmond, Gus Savage, Patricia Schroeder, James M. Shannon, Louis Stokes, and Harold Washington.
The plaintiffs first addressed the defendants' argument that the case presented a non-justiciable political question, and responded that: (1) in previous litigation, involving the Vietnam War, four circuit courts had held that a claim of conflict between the Legislative and Executive branches under the War Powers Clause was justiciable; (2) courts do decide disputes between the Executive and Congress regarding their respective constitutional powers; (3) the issues in the case were not "textually committed” to the President by the Constitution or statute; and (4) the case was not inextricably intertwined with any other criteria that would counsel dismissal on political question grounds, particularly since “no 'policy' determination whatsoever" was required by the court. (Id. at 28] Focusing next on the standing question, the plaintiffs maintained that they had suffered injury-in-fact under the War Powers Resolution, the Constitution, and the Foreign Assistance Act. They explained:
(1) The first injury flowing from the defendants' unilateral and continuing commitment of U.S. forces to El Salvador is injury to the Congressional power to declare war and the concomitant obligation to keep the country out of a “Presidential War". This power, given exclusively to Congress by the Constitution and implemented by the War Powers Resolution is being invaded and usurped by the President and other defendants. A specific, critical piece of legislation, passed to protect this power and to establish procedures for dealing with undeclared wars, is being ignored by the defendants. Such a usurpation of power belonging to Congress causes a diminution in the powers of Congress as an institution. Kennedy [v. Sampson), 511 F.2d at 435.
(2) A second injury flowing from the President's violation of the Constitution and the War Powers Resolution is the withdrawal from Congress of the opportunity to vote to commit U.S. forces in El Salvador. The War Powers Resolution requires the President to come to Congress for an affirmative vote within a sixty-day period if he wants the troops to remain more than sixty days. By failing to request such a vote from Congress, as required by the War Powers Resolution, the President has deprived Congress of the opportunity to vote on whether such a commitment of forces ought to be continued.
(3) A third injury to Congress is the Congressional interest protected by the War Powers Resolution's requirement that President formally report to Congress within fortyeight hours of introducing troops into hostile situations. Such reports must include detailed information regarding the circumstances necessitating the introduction of U.S. armed forces, the constitutional and legislative authority for such introduction and the scope and duration of the involvement. 50 U.S.C. § 1543. This mandatory reporting requirement guarantees to Congress that it will have all of the relevant information regarding U.S. troop commitments. Without such information, Congress is unable to
fulfill its constitutional role in the war making process. No
(4) A fourth injury to Congress is the diminution of its
international law. (Id. at 30-31 (footnote omitted)] Moreover, according to the plaintiffs, the injuries were specific to Congress as an institution (since the War Powers Resolution was enacted to protect Congress' constitutional right to declare war as well as it role in the legislative process), and the harm to this institutional interest had resulted in “distinct and palpable” derivative injury to the individual plaintiffs.
Turning to the "equitable considerations” cited by the defendants as requiring dismissal, the plaintiffs distinguished their case from Riegle v. Federal Open Market Committee, 656 F.2d 873 (D.C. Cir. 1981), which outlined the doctrine of "circumscribed equitable discretion.” (See page 157 of this report for a discussion of that case.) According to the plaintiffs, the Riegle approach was inapposite to situations where the Executive was accused of acting in violation of a statute:
In Riegle the congressional plaintiff challenged defendants who were acting consistently with a federal statute. Plaintiff's claim was that the statute violated his rights under the Constitution. There was no claim that defendants were attempting to nullify or act contrary to a statute. Thus, a Court could conclude that plaintiff's dispute was really with his fellow legislators.
No such conclusion can be drawn here. Plaintiffs have a genuine dispute with defendants, not with their congressional colleagues. They seek to protect the institutional interests of Congress by enforcing laws passed by Congress to protect its war-making and appropriations powers. If the court were to refuse to entertain jurisdiction here, it would be refusing to give effect to the will of Congress, not providing aid to some members of Congress in a dispute
with others. (Id. at 38-39] Furthermore, the plaintiffs argued, they had no adequate "inhouse" remedy under either the War Powers Resolution or the Foreign Assistance Act, or through the power over the purse. Particularly with respect to the War Powers Resolution, the plaintiffs noted that it was intended to operate automatically in order to place the burden on the President to seek approval from Congress within sixty days of the introduction of U.S. armed forces. "The
WPR does not require Congress to pass another law or resolution mandating the removal of troops," insisted the plaintiffs. (Id. at 10)
Finally, the plaintiffs contended that they did, in fact, have a right of action which entitled them to the relief they sought. In their view, the right of action was based on a violation of the War Powers Clause (the Congressional power to declare war having been usurped by the defendants), and was reinforced by the War Powers Resolution:
The clear and undisputed language of the WPR establishes that the statute expressly identifies Congress as the class Congress intended to benefit.
Section 1541 is intended to assure that Congress will execute collective judgment with the President on the introduction of United States armed forces into hostilities. Section 1542 provides Congress with the right to Presidential consultation on the commitment of United States troops. Section 1543 provides Congress with the right to receive a report from the President within forty-eight hours of the commitment of troops, and periodic reports thereafter. Sections 1544, 1545 and 1546 create special Congressional procedures for dealing with the involvement of United States troops in war-like situations.
The WPR thus evinces an "unmistakable focus" on the rights of Congress and explicitly provides the institution and it members with designated rights. Cf. Cannon v. University of Chicago, 441 U.Š. at 690-693. (Id. at 47 (emphasis
in original)] Additionally, the plaintiffs claimed to have a cause of action under the Foreign Assistance Act.
On November 20, 1981, the defendants filed a reply to the plaintiffs' opposition to their motion to dismiss. The reply essentially restated the defendants' earlier arguments on the political question doctrine, standing, and right of action, and asserted that the plaintiffs' legal analysis was faulty insofar as applicable precedents were concerned. The defendants claimed as well that "recent congressional initiative" demonstrated that no constitutional impasse existed requiring adjudication:
Two weeks before plaintiffs filed their opposition, the Senate passed a provision to the proposed International Security and Development Cooperation Act of 1981, to provide for the continuation of the very assistance that plaintiffs request this Court to enjoin. The House Foreign Affairs Committee has also recommended the authorization of such assistance which the full House will consider shortly.
The recent congressional action underscores the fact that any “injury” to the plaintiffs comes from their fellow members of the Legislative Branch who are unpersuaded by plaintiffs' claims. This Circuit has found similar allegations of injury insufficient to establish jurisdiction and has rejected attempts by legislators seeking to vindicate their personal views through the court process. Reuss u. Balles,
supra, Harrington v. Bush, supra, Metcalf v. National Pe-
Dismiss, November 20, 1981, at 8-9 (footnotes omitted)] On January 4, 1982, the plaintiffs filed a brief rejoinder to the defendants' reply memorandum reiterating their previous contentions.
On February 5, 1982, District Judge Joyce Hens Green issued an order denying the June 18, 1981 motion of sixteen Senators and thirteen Congressmen to intervene in the case as party defendants. Judge Green held that the prospective intervenors had failed to demonstrate that their interests would be inadequately represented by the Executive branch defendants. She did note, however, that their interests might diverge from those of the Executive defendants if and when the merits of the suit were reached; therefore Judge Green's denial of the motion to intervene was without prejudice to its later renewal if it became appropriate. The court did order the prospective intervenors to be designated as amici curiae and allowed them to file a brief on the pending motion to dismiss.
On February 9, 1982, the defendants filed a supplemental memorandum in support of their motion to dismiss. The memorandum specifically referred to recent Congressional action, signed into law by President Reagan, which purportedly authorized the provision of security assistance to El Salvador. (International Security and Development Cooperation Act of 1981, Pub. L. No. 97-113, 95 Stat. 1519 (1981)) According to the defendants, passage of the act further demonstrated that the action had to be dismissed:
Congress, however, has now specifically approved the continuation of the very foreign assistance which plaintiffs seek to have this Court terminate. Rather than suffering from any diminution in its power, Congress has vigorously asserted itself in a manner wholly at odds with plaintiffs' position. The passage of the Act, in itself, proves that there has been no injury to the legislative branch upon which plaintiffs can base a claim of derivative injury. Even if there had been an injury sufficient to create standing, moreover, plaintiffs' claims have been mooted by the decision of Congress to provide economic and military assistance.
Enactment of the International Security and Development Cooperation Act of 1981 also demonstrates that this action involves a nonjusticiable political question. As previously discussed by the defendants, the Court must dismiss an action where a judicial declaration presents the potentiality of embarrassment from multifarious pronouncements by various departments on one question, where there is a need for unquestioning adherence to a political decision already made, or where the case requires the court to make an initial "nonjudicial” policy determination. Baker v. Carr, 369 U.S. 186, 217 (1962). Here, the political branches of government, to whom the conduct of