Ange v. Bush, Civ. A. No. 90-2792 (RCL).
| Decision Date | 13 December 1990 |
| Docket Number | Civ. A. No. 90-2792 (RCL). |
| Citation | 752 F. Supp. 509 |
| Court | U.S. District Court — District of Columbia |
| Parties | Michael Ray ANGE, Plaintiff, v. George BUSH, et al., Defendants. |
Beth Stephens, Jose Morin, Michael Ratner, Jules Lobel, Peter Weiss, Mahlon Perkins, David Cole, James Klimaski, New York City, for plaintiff.
Stuart M. Gerson, Asst. Atty. Gen., Jay B. Stephens, U.S. Atty., Leslie H. Southwick, David J. Anderson, Vincent M. Garvey, John R. Tyler, U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendants.
This case comes before the court on plaintiff's motion for a preliminary injunction, defendants' motion to dismiss, and the parties' cross-motions for summary judgment. Plaintiff, Sergeant Michael Ray Ange, claims that the President's order deploying him to the Persian Gulf exceeds the President's authority under the Constitution's War Powers Clause, U.S. Const. art. I, § 8, cl. 11, and under the War Powers Resolution. 50 U.S.C. § 1541, et seq., (1973). Ange also claims a Fifth Amendment due process violation in the procedure the Army used to determine and review his medical suitability for deployment in the Persian Gulf. Upon consideration of the filings submitted by both parties and by amicus curiae, the entire record in this case, and the arguments of counsel at the December 10, 1990, hearing on this matter, the court will dismiss those parts of this case challenging the President's deployment order as presenting non-justiciable political questions, which are, in any event not ripe for judicial review. The court will grant summary judgment for defendants on plaintiff's Fifth Amendment due process claim.
On August 2, 1990, Iraqi military forces invaded Kuwait. Plaintiff's Memorandum In Support Of Plaintiff's Motion For Summary Judgment, In Opposition To Defendants' Motion To Dismiss Or For Summary Judgment, And In Reply To Plaintiff's Motion For Preliminary Injunction at Exhibits 2 and 3 ("Plaintiff's Supporting Memorandum"). In response to the Iraqi invasion, President Bush imposed an economic embargo against Iraq and sent U.S. military forces to Saudi Arabia. Id. at Exhibits 2 & 3. Shortly after the invasion, President Bush condemned Iraq's aggression and demanded Iraq's withdrawal from Kuwait. Id. at Exhibit 3. On August 6, 1990, Iraq's troops began to round up American citizens to be used as human shields. The U.S. military force in the Gulf includes some National Guard and reserve units called up to active duty. Sgt. Ange is a member of one of the National Guard units deployed in the Gulf. Military forces from other nations have since joined the U.S. forces in the Gulf.
On August 9, 1990, and again on November 16, 1990, President Bush sent a letter to the Speaker of the House and the President Pro Tempore of the Senate regarding the deployment of U.S. armed forces in Saudi Arabia and the Persian Gulf region. By August 11, 1990, the United States had imposed a military blockade on Iraq, which included using force to intercept, stop, divert, and board ships in order to enforce the ban on Iraqi imports and exports and bar all items except medical supplies. Id. at Exhibit 11. As of November 15, 1990, the U.S. Defense Department had reported 3,680 intercepts by the allied forces, including 420 boardings and sixteen ship diversions; 286 of the boardings were conducted by U.S. forces. Id. at Exhibit 7.
Iraq responded to the U.S. military actions by declaring that it considered itself to be engaged in a "holy war" with the United States. Id. at Exhibit 10 & 11. The Defense Department reported that Iraq had 430,000 troops in and around Kuwait. Id. at Exhibit 7. On October 29, Secretary of State James Baker warned that the United States would not shrink from using force if Iraq continued to occupy Kuwait. Id. at Exhibit 15. On November 8, 1990, President Bush announced a significant increase in the number of U.S. troops in the Gulf and stated that his goal was to provide "an adequate offensive military option should that be necessary to achieve our common goals" which he described as "the immediate, complete and unconditional withdrawal of Iraqi forces from Kuwait." Id. at Exhibit 14. Defense Secretary Richard Cheney stated that "the additional military capability that's now being added clearly will give the ability to conduct offensive military operations...." Id. at Exhibit 16.
On October 1 and 2, 1990, the House and Senate each passed separate and differing resolutions regarding the President's actions. While the House resolution was called "joint" and the Senate resolution "concurrent," the two were never reconciled and exhibit differences. Id. at Exhibits 21 & 22. President Bush and Secretary of State Baker have suggested that the Executive Branch and Congress differ as to what they view as the President's constitutional obligation in exercising the war powers. Id. at Exhibits 18 & 25. On November 19, 1990, the United Nations Security Council passed Resolution 678 sanctioning the use of "all necessary means" to force Iraq out of Kuwait unless Iraq withdraws its troops from Kuwait by January 15, 1991.
Ange's lawsuit challenging the President's authority implicates the War Powers Resolution and various provisions of the Constitution. The War Powers Resolution, passed over President Nixon's veto in 1973, requires the President to report in writing to specified members of the House of Representatives and the Senate when, absent a declaration of war, the President introduces armed forces "into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances." 50 U.S.C. § 1543(a)(1). The War Powers Resolution provides that any use of U.S. armed forces must be terminated within sixty days after a report is submitted or is required to be submitted, unless Congress has declared war, enacted specific authorization for such use of the armed forces, extended by law the sixty day period, or is physically unable to meet as a result of an armed attack. 50 U.S.C. § 1544(b).
The various constitutional provisions cited by both parties to support their positions regarding the respective war powers of the executive and legislative branches, are set forth below. To support his position that the President's deployment orders are unconstitutional, Ange cites the provisions of the Constitution which state that "Congress shall have the power ... to declare war ..." and that Congress has the power to make such other laws as "shall be necessary and proper for carrying into Execution its enumerated powers." U.S. Const. art. I, § 8, cls. 11 & 18. The President, on the other hand, cites different provisions of the Constitution to establish the constitutionality of the deployment orders and the continued deployment of U.S. forces in the Persian Gulf: "the executive powers shall be vested in a President of the United States of America," and the "President shall be Commander in Chief of the Army and Navy...." U.S. Const. art. II, § 2, cl. 1. The President also cites the provision requiring the President to "take care that the laws be faithfully executed." U.S. Const. art. II, § 3.
Ange's challenge to the President's deployment order is threefold. Ange claims first that the deployment to date violates the Constitution's War Powers Clause; second, that Ange faces a realistic threat that the President may initiate an offensive war against Iraq in further violation of the War Powers Clause; and third, that the President's deployment order violates the War Powers Resolution. Ange asks the court to issue an injunction requiring that he be returned to the United States on the grounds that his deployment violates the War Powers Clause of the Constitution and the War Powers Resolution.1
While Ange takes pains to draft three different challenges to the President's deployment of U.S. military forces in the Persian Gulf, all three claims share one common denominator: the Constitution's allocation of war powers among the executive and legislative branches. If the court were to determine whether the President's deployment to date violates the War Powers Clause, or whether Ange might be ordered into an allegedly unconstitutional "offensive" war, or whether the President's deployment order violates the War Powers Resolution, the court would have to determine precisely what allocation of war power the text of the Constitution makes to the executive and legislative branches.
In Ange's own words, the War Powers Resolution "embodies Congress' search for a legal mechanism to enforce the congressional war-making power." Plaintiff's Supporting Memorandum at 21. The scope of the respective war powers of the executive and legislative branches is implicated by application of the War Powers Resolution in the present case. In order to determine whether the President has violated the War Powers Resolution, this court would necessarily have to determine whether the President, under the Constitution, was or is constitutionally required to comply with the provisions of the War Powers Resolution.
The determination sought by Ange in each of his three challenges to the President's actions in the Persian Gulf is one which the judicial branch cannot make pursuant to the separation of powers principles embodied in the court's equitable discretion and in the political question doctrine. The conditions triggering unreviewability under the political question doctrine were spelled out by the Supreme Court:
Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an...
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