Doe v. Bush

323 F.3d 133 (1st Cir. 2003)

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Nature of the Case

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Facts

Ps filed a complaint in district court seeking a preliminary injunction to prevent the Ds from initiating a war against Iraq. Ps claim that such an action would violate the Constitution. In October 2002, Congress passed the Authorization for Use of Military Force Against Iraq Resolution of 2002. Ps argue that the October Resolution is constitutionally inadequate to authorize the military offensive that Ds are now planning against Iraq. Ps argue that D is about to act in violation of the October Resolution and that Congress has handed over to the President its exclusive power to declare war. Ps posit that judicial intervention is necessary to preserve the principle of separation of powers. Ps argue that important and increasingly vital interests are served by the requirement that it be Congress which decides whether to declare war. Ps claim that absent an attack on this country or our allies, congressional involvement must come prior to war, because once war has started, Congress is in an uncomfortable default position where the use of its appropriations powers to cut short any war is an inadequate remedy. Ds claim that the 'extraordinarily delicate foreign affairs and military calculus, could be fatally upset by judicial interference' Such intervention would be all the worse here because Congress and the President are in accord as to the threat to the nation and the legitimacy of a military response to that threat. The court dismissed Ps’ claim and Ps appealed.