Sandra Lynch

“ The question of fitness does not pivot solely on whether a court is capable of resolving a claim intelligently, but also involves an assessment of whether it is appropriate for the court to undertake the task. ”

“ Plaintiffs argue that the October Resolution is constitutionally inadequate to authorize the military offensive that defendants are now planning against Iraq. See U.S.C.onst. art. I, § 8, cl. 11 (granting Congress the power "to declare war") . They base this argument on two theories. They argue that Congress and the President are in collision -- that the President is about to act in violation of the October Resolution. They also argue that Congress and the President are in collusion -- that Congress has handed over to the President its exclusive power to declare war. ”

“ United Nations weapons inspectors continue their investigations inside Iraq. Other countries ranging from Canada to Cameroon have reportedly pursued their own proposals to broker a compromise. As events unfold, it may become clear that diplomacy has either succeeded or failed decisively. The Security Council, now divided on the issue, may reach a consensus. To evaluate this claim now, the court would need to pile one hypothesis on top of another. We would need to assume that the Security Council will not authorize war, and that the President will proceed nonetheless. ”

“ The lack of a fully developed dispute between the two elected branches, and the consequent lack of a clearly defined issue, is exactly the type of concern which causes courts to find a case unripe. In his concurring opinion in Goldwater v. Carter, 444 U.S. 996, 62 L. Ed. 2d 428, 100 S.C.t. 533 (1979) , Justice Powell stated that courts should decline, on ripeness grounds, to decide "issues affecting the allocation of power between the President and Congress until the political branches reach a constitutional impasse." ”

“ In plaintiffs' view, the Resolution's authorization is so narrow that, even with Security Council approval of military force, Congress would need to pass a new resolution before United States participation in an attack on Iraq would be constitutional. At a minimum, according to plaintiffs, the October Resolution authorizes no military action "outside of a United Nations coalition."
For various reasons, this issue is not fit now for judicial review. For example, should there be an attack, Congress may take some action immediately. ”

“ The ripeness of a dispute is determined de novo. Stern v. U.S. Dist. Court, 214 F.3d 4, 10 (1st Cir. 2000) . Ripeness is dependent on the circumstances of a particular case. See Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995) ("The various integers that enter into the ripeness equation play out quite differently from case to case . . . .") . Two factors are used to evaluate ripeness: "the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." ”

“ They also argue that, absent an attack on this country or our allies, congressional involvement must come prior to war, because once war has started, Congress is in an uncomfortable default position where the use of its appropriations powers to cut short any war is an inadequate remedy. ”

“ They support their reading by reference to the October Resolution's preamble and to legislative history.↑ While the Supreme Court has not considered a modern war powers case, lower courts have, and they have reached differing conclusions about the applicability of the political question doctrine. ”

“ It has also accepted continued American participation in military activities in and around Iraq, including flight patrols and missile strikes. Finally, the text of the October Resolution itself spells out justifications for a war and frames itself as an "authorization" of such a war.
It is true that "courts possess power to review either legislative or executive action that transgresses identifiable textual limits" on constitutional power. Nixon, 506 U.S. at 238. Questions about the structure of congressional power can be justiciable under the proper circumstances. ”

“ A third is the recognition that, by waiting until a case is fully developed before deciding it, courts benefit from a focus sharpened by particular facts. See Ohio Forestry Ass'n v. Sierra Club, 523 U.S. 726, 736, 140 L. Ed. ”

“ Pub. L. No. 105-235, 112 Stat. 1538, 1541 (1998) . Later that year, Congress also passed the Iraq Liberation Act of 1998, Pub. L. No. 105-338, 112 Stat. 3178. This statute authorized assistance, including military equipment and training, for "Iraqi democratic opposition organizations," and declared that it should be United States policy to remove Iraqi leader Saddam Hussein from power. Id. §§ 3, 4, 112 Stat. at 3179. [3]
The United Nations has also remained engaged in the dispute ever since the Persian Gulf War. ”