Dellums v. Bush
752 F.Supp. 1141 (1990)
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Rule of Law:
A dispute between Congress and the President over the authority to commit the nation to war is not ripe for judicial review unless Congress as an institution has acted to assert its constitutional authority and the executive branch is clearly committed to a definitive course of military action.
Facts:
- On August 2, 1990, Iraq invaded the neighboring country of Kuwait.
- In response, President George Bush sent United States military forces to the Persian Gulf area to deter Iraqi aggression.
- On November 8, 1990, President Bush announced a substantial increase in the military deployment, raising the troop level to nearly 400,000.
- The President stated that the objective of the increased deployment was to provide an 'adequate offensive military option' against Iraq.
- The United Nations Security Council passed a resolution authorizing the use of force against Iraq if it did not withdraw from Kuwait by January 15, 1991.
- President Bush did not seek or obtain a declaration of war or other explicit authorization from Congress for a potential offensive attack against Iraq.
Procedural Posture:
- Fifty-four members of Congress (plaintiffs) filed a lawsuit against the President of the United States in the U.S. District Court for the District of Columbia, a federal trial court.
- The plaintiffs sought a preliminary injunction to prevent the President from initiating an offensive military attack against Iraq without prior congressional authorization.
- The defendant, represented by the Department of Justice, filed a motion to dismiss the lawsuit.
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Issue:
Is a lawsuit brought by a minority of Congress members seeking to enjoin the President from initiating a large-scale military offensive without a congressional declaration of war ripe for judicial review when Congress as a whole has not taken a formal position and the President has not yet committed to a definitive course of action?
Opinions:
Majority - Judge Harold H. Greene
No. The lawsuit is not ripe for judicial review. Although the case does not present a non-justiciable political question and the congressional plaintiffs have standing, the court must abstain from deciding the issue under the ripeness doctrine. Following the reasoning in Justice Powell's concurrence in Goldwater v. Carter, a dispute between the political branches is not ready for judicial review until they have reached a 'constitutional impasse.' This requires two conditions: first, that Congress as a whole, not just a minority of its members, has taken action to assert its constitutional authority; and second, that the Executive has shown a clear commitment to a definitive course of action. Neither condition is met here. Congress has not taken a collective stand on the issue, and the President's actions, while suggestive of war, have not foreclosed the possibility of a diplomatic solution. Therefore, the controversy is not yet ripe for judicial intervention.
Analysis:
This case establishes a significant barrier to judicial intervention in disputes over war powers between the legislative and executive branches. By adopting the 'constitutional impasse' standard from Goldwater v. Carter, the court solidified the ripeness doctrine as a major tool of judicial restraint in this area. The decision effectively requires Congress to act decisively as an institution to challenge presidential war-making before the judiciary will consider the merits of the dispute. This places the primary responsibility for checking presidential power squarely on Congress itself, rather than the courts, and makes it difficult for minority factions within Congress to use litigation as a tool to block military action.
