Tuesday, July 31, 2007

No Constitutional Showdown Over Iraq in Near Future

There have been some whispers about a constitutional showdown between the President and Congress over the Iraq war. There are those in Congress who are against the war and against Bush's plans to continue the war until--as of yet--some undefined deadline. The constitutional question would be whether Bush's power as commander in chief, the sole organ of foreign policy, and the executive overrules the wishes of a Congress which has the power to declare war and raise and support an army.

Yet, the whispers about this constitutional showdown are unfounded. While the majority of Americans do not favor our continued presence in Iraq--since according to a
Washington Post-ABC News poll only 31% of Americans approve of Bush's handling of the war--the American people's views do not necessarily correlate with the views of those in political office. Congress is much more divided on the war than the American people. Recently, Senate Democrats tried to filibuster a bill which would give Bush more time in Iraq, preventing the troops from coming home. To maintain the filibuster against the bill, Democrats needed 60 votes, but fell short of these votes coming in at 52-47 in favor of the filibuster. While a majority clearly did not want the bill, the divide in the Senate is not as big as the divided in the American population over the war in Iraq.

If courts ever receive a lawsuit over the Iraq war, most likely they will reject the case not on the merits, but rather on the
justiciability of the case alone. The justiciability doctrine comprises four basic areas: standing, political question, mootness, and ripeness. Most likely judges and justices alike will refuse to enter into such a sticky legal and political case as one between the President and the Congress over one of the most contentious wars in our Nation's history. Courts may claim that in order for a Senator or a Representative to bring the case to court, they need a majority of Congress to sue the President and fulfill the requirement of standing. Not only a majority of the Senate, but Congress as a whole needs to be harmed in some way to have standing. If that criterion is fulfilled then Courts can dodge the question another way: the political question doctrine. It is elucidated quite well by Justice Brennan in the Goldwater v. Carter case.

"As set forth in the seminal case of Baker v. Carr,
369 U.S. 186, 217 (1962), the doctrine incorporates three inquiries: (i) Does the issue involve resolution of questions committed by the text of the Constitution to a coordinate branch of Government? (ii) Would resolution of the question demand that a court move beyond areas of judicial expertise? (iii) Do prudential considerations counsel against judicial intervention?"

Perhaps judges would say that in the charged political atmosphere prudential considerations counsel against judicial intervention over the Iraq war. Terminating hostilities during war time have been decided by the
USSC as powers given to both the President and the Congress. The answer is not a definitive one by any means. The U.S. Constitution itself is rather vague on who holds that power. But, it would be a rather contentious and difficult issue for courts to deal with and one that would likely not end up creating a happy resolution for either side. Courts may possibly use this reason as an excuse for stepping aside and letting Bush and Congress duke out the war on their own terms.

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