WAR POWERS : Courts Reluctant to Restrict President in Starting Conflicts

The Constitution, though vague on many points, is quite clear on one: “Congress shall have the power . . . to declare war.”

Yet the White House says President Bush can begin a war against Iraq on his own authority. Bush has promised only to “consult” with congressional leaders but not to seek a formal vote of approval by Congress.

If the President is violating the Constitution, why doesn’t someone go to court and force him to stop?

In fact, many have paraded into court over the last 25 years, urging that the President’s war powers be curtailed. So far, however, no one has succeeded in stopping a war in court.

BACKGROUND: “The courts have developed all sorts of technical ways to say: ‘We don’t want to get into this,’ ” said Hofstra University law professor Leon Friedman, who spent much of the Vietnam era trying to get a court to halt that undeclared war.

Sometimes, judges have said that those challenging the President do not have “standing” in court because they have not suffered a true “injury.”

On other occasions, judges have said the challenge is “premature” or “not ripe” because the injury had not yet occurred. Other judges have said simply that these issues are “political,” not legal, and cannot be resolved by a court.

But the many admonitions to “go away” have not stopped lawyers from trying. Today, attorneys representing 54 members of Congress will go before a federal judge here, asking him to block Bush from undertaking “an offensive military attack” in the Persian Gulf.

Michael Ratner, an attorney with the Center for Constitutional Rights in New York, said: “We are in the best position we could be in.” That is so, he said, because the White House admits that an outbreak of fighting in the Persian Gulf will be a “war,” not a “police action” such as in Grenada.

Rep. Ronald V. Dellums (D-Berkeley) and the other congressmen say they are protecting their constitutional right to vote on whether the nation should go to war. Judge Harold Greene, a notably independent jurist, will hear the case.

If that lawsuit fails, Ratner has a second waiting. Sgt. Michael Ange, 26, a reservist, is challenging Bush’s authority to send him to the gulf for duty in an undeclared war. His suit will be heard on Dec. 10 by Judge Royce Lamberth. Ange says Bush has violated the Constitution and the War Powers Resolution of 1973.

Justice Department attorneys do not have to persuade the courts that Bush has the power he claims. That might be difficult, considering the Constitution’s clear language and “original intent.”

“In no part of the Constitution is more wisdom to be found,” said James Madison, its prime author, “than in the clause which confides the question of war or peace to the legislature, not to the executive department.”

Instead, the government says the lawsuits should be thrown out of court without a ruling on their merits. “The plaintiffs do not have proper standing, the issues are political and not judicial, and the (suit) is premature,” the Justice Department said.

OUTLOOK: The precedents are all on the government’s side. In 1987, for example, a court dismissed a suit by 110 members of Congress contending that President Ronald Reagan violated the War Powers Resolution by putting U.S. flags on Kuwaiti oil tankers in the war-torn Persian Gulf. The court said the congressmen had no “standing” to challenge Reagan, and their suit raised a “political” issue.

The Supreme Court has rarely had to rule on these war-powers cases because they have been dismissed in the lower courts. But, in 1980, the justices suggested that no congressional representative, or bloc of representatives, can speak for Congress. To have legal power, a majority of Congress must act in concert, the court said.

The Justice Department takes the same view. The proper way to handle a dispute over the war powers is through a “give and take between the two political branches” of government, the Justice Department said.