Kucinich v. Bush

• Decision Date: 30 December 2002
• Docket Number: No. CIV.A. 02-1137(JDB)ECF.,CIV.A. 02-1137(JDB)ECF.
• Citation: 236 F.Supp.2d 1
• Parties: Dennis KUCINICH, Representative to Congress from Ohio, et al., Plaintiffs, v. George W. BUSH, President of the United States, Colin Powell, Secretary of State, Donald H. Rumsfeld, Secretary of Defense, Defendants.
• Court: U.S. District Court — District of Columbia

Page 1

236 F.Supp.2d 1

Dennis KUCINICH, Representative to Congress from Ohio, et al., Plaintiffs, v. George W. BUSH, President of the United States, Colin Powell, Secretary of State, Donald H. Rumsfeld, Secretary of Defense, Defendants.

No. CIV.A. 02-1137(JDB)ECF.

United States District Court, District of Columbia.

December 30, 2002.

James Klimaski, Klimaski & Grill, P.C., Washington, DC, Peter Weiss, John Burroughs, Lawyers' Committee on Nuclear Policy, New York, NY, Bruce Ackerman, New Haven, CT, Jeremy Manning, New York, NY, Jules Lobel, Michael Ratner, Center for Constitutional Rights, New York, NY, Edward A. Aguilar, Philadelphia Lawyers Alliance for World Security, Philadelphia, PA, Michael Veiluva, Western States Legal Foundation, Oakland, CA, for Plaintiffs.

Carol Federighi, U.S. Dept. of Justice, Civ. Div., Federal Programs Branch, Washington, DC, Shannen Coffin, Dept. of

Justice, Civ. Div., Washington, DC, Joseph Hunt, Vincent Garvey, Dept. of Justice, Civ. Div., Federal Programs Branch, Washington, DC, for Defendants.

MEMORANDUM OPINION

BATES, District Judge.

Thirty-two members of the House of Representatives (hereinafter "plaintiffs" or "the congressmen") bring this action against President George W. Bush, Secretary of State Colin Powell, and Secretary of Defense Donald H. Rumsfeld ("defendants") challenging President Bush's unilateral withdrawal from the 1972 Anti-Ballistic Missile Treaty ("ABM Treaty") without the approval of Congress. The congressmen contend that because the Supremacy Clause of the Constitution classifies treaties, like Acts of Congress, as the "supreme law of the land," the President cannot terminate a treaty without congressional consent, any more than he could repeal a statute. Defendants counter that the congressmen lack standing to bring this action, that their complaint raises a nonjusticiable political question, and that their claim is not ripe. Defendants further contend that given the President's plenary power over foreign relations under the Constitution and the fact that the treaty authority is in Article II of the Constitution delineating the Executive Branch's powers, and in light of historical practice over the past 200 years, the President's withdrawal from the ABM Treaty without seeking congressional approval was constitutional.

Before the Court are cross-motions for summary judgment, and several amicus briefs. The Court does not reach the merits of plaintiffs' claim in the face of two prongs of the justiciability doctrine, each founded on separation of powers concerns. Under the ruling in Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997), the Court finds that these thirty-two congressmen have not alleged the requisite injury to establish standing to pursue their claim. And pursuant to Goldwater v. Carter, 444 U.S. 996, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979), the Court concludes that the treaty termination issue is a nonjusticiable "political question" that cannot be resolved by the courts. Accordingly, this action will be dismissed.

BACKGROUND

The United States and the Soviet Union entered into the bilateral ABM Treaty on October 3, 1972.¹ The ABM Treaty strictly limited the number and location of anti-ballistic missile systems that each side could deploy for defense against nuclear missile attacks. Both nations agreed not to develop ABM technology, and not to test or deploy such technology on land, at sea, or in space. A critical component of an interlocking framework of arms control agreements, the ABM Treaty was a cornerstone of the Cold War policy of "mutually assured destruction," an understanding that without ABM defenses neither side would risk starting a nuclear war because it knew the other side would massively retaliate, thus ensuring the widespread destruction of both nations.

President Bush, however, concluded that the world order and international security had drastically changed since the inception of the ABM Treaty three decades ago. Accordingly, on December 13, 2001, he gave Russia the requisite six-months notice of the intention of the United States to withdraw from the ABM Treaty, pursuant to the Treaty's termination clause:

Each Party shall, in exercising its national sovereignty, have the right to withdraw from this Treaty if it decides that extraordinary events related to the subject matter of this Treaty have jeopardized its supreme interests. It shall give notice of its decision to the other Party six months prior to withdrawal from the Treaty.

ABM Treaty, art. XV, cl. 2. The White House explained that "[t]he Soviet Union no longer exists [and] Russia is not an enemy, but in fact is increasingly allied with us on a growing number of critically important issues."² The State Department cited the development of "a new strategic relationship with Russia that is cooperative rather than adversarial," including "strong relationships with most states of the former Soviet Union." See United States Department of State, Text of Diplomatic Notes Sent to Russia, Belarus, Kazakhstan, and Ukraine (Dec. 14, 2002).

President Bush also explained that a number of foreign regimes "have acquired or are actively seeking to acquire weapons of mass destruction ... [that] pose a direct threat to the territory and security of the United States." Id. "The attacks against the U.S. homeland on September 11 vividly demonstrate that the threats we face today are far different from those of the Cold War." Def. Motion, Ex. 2, supra note 2. Compliance with the Treaty, President Bush noted, "hinders our government's ability to develop ways to protect our people from future terrorist or rogue state missile attacks."³

Before he withdrew from the Treaty, however, President Bush did not submit the question of treaty termination to the Senate or the House. Nor did the President otherwise seek congressional consent for the withdrawal. Nearly six months after President Bush announced his intention to terminate the treaty, these congressmen brought suit on June 11, 2002, just two days before the termination of the ABM Treaty became effective.⁴

ANALYSIS

Defendants raise a number of distinct bases for dismissing plaintiffs' complaint on jurisdictional grounds, including standing, political question, and ripeness. These doctrines all arise out of the "bedrock requirement" that courts hear only "cases and controversies." See Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). As the Supreme Court has explained, "[t]he federal courts are under an independent obligation to examine their own jurisdiction, and standing `is perhaps the most important of the jurisdictional doctrines.'" FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984)).⁵ The Court will therefore begin its analysis with standing, and then proceed to the related issue of whether a nonjusticiable political question is presented. In light of the resolution of these threshold jurisdictional issues, the Court does not reach the merits of plaintiffs' claims.

I. Standing

Article III of the Constitution restricts the jurisdiction of the federal courts to "Cases" and "Controversies." U.S. Const. art. III, § 2; Flast v. Cohen, 392 U.S. 83, 94, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Allen, 468 U.S. at 750, 104 S.Ct. 3315. This requirement has given rise to "several doctrines ... `founded in concern about the proper — and properly limited — role of the courts in a democratic society.'" Allen, 468 U.S. at 750, 104 S.Ct. 3315 (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)); Valley Forge, 454 U.S. at 471, 102 S.Ct. 752. One aspect of this "case-or-controversy" requirement is that plaintiffs must have standing to sue, an inquiry that focuses on whether the plaintiff is the proper party to bring suit. FW/PBS, Inc., 493 U.S. at 231, 110 S.Ct. 596. Hence, "`the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Allen, 468 U.S. at 750-51, 104 S.Ct. 3315 (quoting Warth, 422 U.S. at 498, 95 S.Ct. 2197).

Standing focuses on the particular injury allegedly suffered by the plaintiff:

First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of — the injury has to be fairly ... trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal citations and quotation marks omitted). "These requirements together constitute the `irreducible constitutional minimum' of standing, which is an `essential and unchanging part' of Article III's case-or-controversy requirement, and a key factor in dividing the power of government between the courts and the two political branches." Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (internal citations omitted) (quoting Lujan, 504 U.S. at 559-60, 112 S.Ct. 2130).

A. Raines v. Byrd

The question whether members of Congress have standing to sue Executive Branch officials is neither novel nor unsettled. Indeed, this case is squarely within the holding of Raines v. Byrd. The Supreme Court in Raines emphasized that in cases of inter-branch disputes between the Executive and Legislative Branches of government, courts must conduct a more exacting...