A press release issued by Rutgers University announced the filing today (May 13) of a law suit, New Jersey Peace Action v. George W. Bush, in the Federal District Court in Newark, NJ challenging the legality of the war in Iraq. The plaintiffs include a group called New Jersey Peace Action and two leaders of the New Jersey chapter of Military Families Speak Out (MFSO), an anti-war organization of people with relatives or loved ones currently serving in the military in Iraq. The Rutgers Law School/Newark Constitutional Litigation Clinic filed the suit seeking a Declaratory Judgment that the preemptive war against Iraq by President Bush in 2003 violated Article I, Section 8 of the US Constitution, which assigns to Congress the power to Declare War. Half a dozen Rutgers Law School students have been working with Prof. Frank Askin and his colleagues in the past academic year studying the issues and preparing the law suit.
According to Askin, the Complaint relies on the annals of the 1787 Constitutional Convention, where the Founders deliberately denied to the president the power to wage war except in response to a sudden attack when Congress did not have time to act. The complaint cites a 19th Century Supreme Court ruling in Bas v. Tingy, 4 U.S. 37, (1800) holding that an all-out, or “perfect,” war could only be declared by Congress, but Congress could authorize the president to wage a quasi, or “imperfect,” war under strict limits as to scope and duration without a full-scale Declaration, as they did during the quasi-war with France from 1798 to 1800. Bas v. Tingy was the first major US Supreme Court test of the meaning of the power to wage war. It arose during President John Adams’ administration when the nation found itself in an undeclared sea war with France in the course of which one of our merchant ships had been captured by the French and then retaken by an American public armed ship. The case involved a suit by the owner of the merchant ship who challenged a 1799 law authorizing an award of half the value of his ship and cargo to a public armed ship that had retaken it from an enemy. The plaintiff argued that there was no declaration of war between the United States and France and that France could not be an enemy. The owner of the public armed ship of course took the opposite view.
The Supreme Court agreed with the owner of the public armed ship dismissing the contention that America and France were not at war because of the absence of a declaration. In Bas v. Tingy, the Supreme Court expanded the concept of constitutionally permissible war to include imperfect war. The next major test of the war powers cam in The Prize Cases, 67 U.S. 635 (1862) where the court shrank the concept of war to include blockades that occurred before the Civil War. The effect of this case was to restrict even further Congress’ exclusive franchise to declare or authorize it (as in Bas v. Tingy).
The Complaint acknowledges that earlier law suits challenging U.S. military actions without a Congressional Declaration since the end of World War II have failed in the lower federal courts. The Supreme Court has never held that the president may wage an all-out war against a sovereign nation in the absence of such a Declaration. The plaintiffs in this case face an uphill battle given the history concerning constitutional war powers. The federal courts will likely choose not to intervene, claiming that the disagreement between the president and Congress is a political question. Nonetheless, this will be litigation worth following.