In May, 2008, a lawsuit was brought against the President of the United States for ordering the military into Iraq without a prior Declaration of War from Congress. January, 2011, Cert was denied by the U.S. Supreme Court. None of the judges who looked at this case - of the District Court, the Circuit Court of Appeals, or the Supreme Court - wrote an opinion considering the two votes on June 1, 1787, at the Constitutional Convention. These issues are still open for decision, in a future case. For lawyers, plaintiffs, and anyone else interested in studying this matter, all of the documents filed in this lawsuit are provided below in chronological order. My notations about the progress of the case, as it went along, are provided below the documents and are in reverse-chronological order.
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NEW JERSEY PEACE ACTION, PAULA ROGOVIN, ANNA BERLINRUT and WILLIAM JOSEPH WHEELER v. [THE PRESIDENT OF THE UNITED STATES OF AMERICA] (please note, that is the way I style this case, as the Courts will automatically change the name of the President each time there is a new one, while this case is being litigated).
May 13, 2008: New Jersey Peace Action v. George W. Bush, Case Number 08-2315
(Now known as "New Jersey Peace Action, et al, v. Barack H. Obama." Defendant's name substituted automatically by the Court, pursuant to FRCP 25(d)(1).)
May 13, 2008: Press Release
May 13, 2008: Memorandum: Theory of Case
May 15, 2008: Summons Issued
July 21, 2008: Defendant's Motion to Dismiss
September 8, 2008: Plaintiffs Amended Complaint, stamped filed by the Court
September 8, 2008: Press Release
November 7, 2008: Defendant's Second Motion to Dismiss
December 1, 2008: Plaintiff's Response - Second Motion to Dismiss
December 8, 2008: Defendant's Reply - Second Motion to Dismiss
April 21, 2009: Transcript - Oral Argument - Standing and Political Question Doctrine
(Removed pending finalization by the parties and the Court.)
May 15, 2009: Opinion
May 15, 2009: Order of Dismissal
May 20, 2009: Transcript - Oral Argument - Standing and Political Question Doctrine
June 16, 2009: Notice of Appeal
November 12, 2009: Plaintiff's Brief and Appendix Vol. I - Third Circuit
November 12, 2009: Plaintiff's Appendix Vol. II - Third Circuit
(Including a more complete list of docket entries than on this webpage. See Vol. II, A24-A26.)
December 9, 2009: Defendant's Brief - Third Circuit
April 5, 2010: 28j Letter from Plaintiffs to Third Circuit
May 10, 2010: Decision of the Third Circuit panel
June 24, 2010: Plaintiffs Petition For Rehearing en Banc
July 7, 2010: Decision of the Third Circuit en Banc
September 21, 2010: Plaintiffs' Application to Extend Time submitted to Justice Alito.
September 24, 2010: Plaintiffs' Application granted by Justice Alito extending time to file until November 4, 2010.
November 3, 2010: Plaintiffs' Petition to the United States Supreme Court for Writ of Certiorari
November 5, 2010: Case Docketed
November 11, 2010: ALERT TO POTENTIAL AMICUS CURIAE
December 6, 2010: Defendant President files waiver of right to respond
December 8, 2010: Case distributed for Conference of January 7, 2011
January 10, 2011: Petition denied.
What happens next?
[Each document was added to the list above in chronological order. A note was made immediately below about what will happen next. As a result, the log below is in reverse-chronological order.]
January 10, 2011: The Supreme Court denied Plaintiffs' Petition for Writ of Certiorari.
The proceedings in the Supreme Court will not go further. Since the Supreme Court is the highest court of the land, there is no where else to appeal. This matter stops here.
This is not uncommon. Each year, the Supreme Court receives many more petitions than it chooses to hear. Although the cause was just, the plaintiffs were injured, the remedy sought was measured, and the Constitutional claim was clear, this was one of many cases which were not appealable to the Supreme Court as a matter of right.
The Supreme Court gave no indication of how it was leaning, when it made its ultimate decision in this case. It did not have to.
During the Vietnam era, several justices felt so strongly about cases concerning the war that they choose to write opinions that dissented from denials of Plaintiffs' Petitions. They gave reasons, which then helped other plaintiffs figure out ways to approach the Court. Also, while it did not happen in this case, it is not uncommon for some courts to explain their decisions, even when not required, so the parties and the public will have an easier time understanding and accepting the Court's judgment.
What's next? I understand that there used to be a law professor in the Rutgers Constitutional Litigation Clinic who had an answer to this everpresent question: "TO THE LIBRARY!"
while this case is over, the issue lives on. As long as the office of the President is the prize of competition rather than inheritance, it will attact people of ambition. The issue that Charles Pinckney recognized on June 1, 1787, and the solution that was developed in the Constitutional Convention, will remain relevant. Since the Constitution is not self-enforcing, it will remain effective only so long as potential plaintiffs remain vigilent - and their lawyers keep informed.
November 11, 2010: Plaintiffs provide an "alert" for potential Amici with information to consider in making the determination on whether to file an Amicus Brief.
November 4, 2010: Plaintiffs filed their Petition for Writ of Certiorari asking the US Supreme Court to consider the justiciablility of their case.
Hardly anyone has the right to appeal to the Supreme Court. However, anyone having lost in a Federal appellate Court or the highest court of a State has the right to ask the Supreme Court to consider their appeal. Such consideration is sought through the filing of a Petition asking the Court to issue a Writ of Certiorari, which directs the lower courts to provide their records to the Supreme Court. About 8000 petitions were filed for the 2008 term. About 6,100 were from prisoners filing “in forma pauperis” or “IFP” cases, exempt from filing fees and printing costs. About 1,600 were "paid" cases. The Court granted about 80 petitions that year. See: Getting Your Foot in the Door: The Petition for Certiorari by Scott L. Nelson of the Public Citizen Litigation Group at citizen.org/documents/GettingYourFootintheDoor.pdf (cached).
July 7, 2010: To the Supreme Court.
While filing a Petition for Writ of Certiorari is a courageous and expensive action, with statistically little chance of success, Plaintiffs and Plaintiffs' counsel felt it worthwhile. First, their claims are significant. They affect the entire nation and are based on an alleged improper application of, or inappropriate Presidential failure of restraint under, the Constitution. Second, previous opinions by the justices indicate that at least 4 might vote for granting the Petition (which is the minimum required to grant a petition) and at least 5 may vote in Plaintiffs' favor when the substance of the procedural questions are considered. Third, Plaintiffs continue to suffer their injuries which a Declaratory judgment could help alleviate.
I am sure that the Court would benefit from the assistance of briefs filed by others who agree with Plaintiffs. Such filings are called "Amicus Briefs" because they are filed by "friends" of the Court, rather than by the parties to the lawsuit. See: www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf | cached). Possible "Amici" include: soldiers (especially veterans of the Iraq War), mothers (and other family members) of soldiers, anyone with some medical training (likely to be the first called up if there is ever another Presidential War), organizations with standing issues like NJPA's, and voters (because a citizen's right to vote, and thereby influence congressional representatives on their determination for or against war usually by roll-call vote, is denied when a President, using the subordinate title of "Commander in Chief," orders American military men and women into harm's way without a prior Congressional Declaration of War.
Please note that this voters' rights claim may seem valid given the purpose of the Constitutional procedure for declaring war, as made extremely clear on June 1, 1787, and the Constitutional framework of separation of powers with both houses of Congress now accountable to the voters and the President accountable for a second term only to those who select the Electoral College. This is complicated even more by the fact that the President also holds the subordinate title of "Titular Head of the Party" and, therefore, is also involved with the policies and tactics - including fundraising, advertising, and liason with supportive groups - that result in the success or failure of party candidates during both the first term in office and, if nominated for re-election, the following term. As complicated as this may seem, one of the anchors holding this republican system of government in place is the ultimate oversight of representatives by those who elected to put them in office, the voters. However, as crucial to this governmental structure as voters are, generalized "citizen suits" have been frowned upon by the Judicial branch. Amici could be very helpful to the Court in trying to simplify and comprehend the interweaving complexities of this situation.
An Amicus might pose this FAQ (or perhaps this is a question that is not so frequently asked) to the Court:
The original intent of electoral representation was to empower voters with the ability to influence the people they have elected to represent them. Representatives who traveled to the nation's capital would be more likely to remember and vote the interests of their constituents when they had to focus on the job security and promotion of themselves and their allies in government. The original intent of creating the House of Representatives was to give a body elected directly by the voters the power to veto decisions made by those selected by other means - such as the Electoral College or appointment by state leaders. History since 1787 shows movement toward universal suffrage: Senators were originally appointed by "leadership" in each state and are now elected directly by the voters and, thus, nomination procedures that require the consent of the Senate have also been brought within this process that is ultimately accountable to citizens who vote. Despite this greater responsibility to citizen voters, Presidents remain accountable only to those who select the Electoral College and now, though not written into the Constitution, also to those who support the party. Thus, when the President makes the determination for war and orders the military into harm's way without a prior declaration of war from Congress, there is no one directly elected by the voters who has veto power over that presidential decision. Do voters have standing to bring a case before this Court alleging that they have been deprived of their power to exert influence over the representatives they have elected to hold the veto power in the House and, now, in the Senate on the determination to go to war?
To paraphrase Hillel: If not them, then who? If not now, then when?
There is no better time than now to sit down as a court, and as a nation, and work through these complex ideas, before a president once again makes the determination for war and then issues an order that sends military men and women into action, without the possibility of a veto by one house of Congress or litigation through the courts.
An Amicus who wants to ask and answer this or any other question should act quickly. Unlike most documents that need to be filed with a court, there is no extension of time to file an Amicus Brief. I have not fully computed the last day for filing, but it may be that an Amicus would have only until November 26, 2010 to give notice if their intent to file.
Plaintiffs' Petition for Rehearing en banc was denied because, of the 15 judges who considered it, "no judge who concurred in the (initial 3rd Circuit) decision ... asked for rehearing, and a majority of the circuit judges of the circuit in regular active service (did) not (vote) for rehearing...."
June 24, 2010: On the 45th day after the 3 judge panel handed down their decision, Plaintiffs filed for a rehearing "en banc" - which means that they asked the full circuit to consider the matter. While such rehearings are unusual, they are granted both for the benefit of the parties and the circuit court. This would give the parties another opportunity to clarify the statements of their positions. It would also give the court a chance to review a decision made my a small number of judges, before the matter is exposed to a higher court. Better, the circuit believes, to find and fix any problems "in-house" rather than having the Supreme Court tell them that they were wrong. So, what happpens now? We wait. (Please note: This is not a copy of the filed document.)
May 10, 2010: The three judge panel (composed of one retiring judge, a district court judge, and a still-sitting appeals court judge) of the Third Circuit renders the decision. As some of my friends have affectionately pointed out, we lost.
Hence, Plaintiffs' counsel - attorneys, students, and volunteers - are heading back to the library, this time to prepare a "Petition for Writ of Certiorari," which is the title of the document that asks the Supreme Court to consider this case out of the many that the Highest Court in the Land will receive this year. I suspect the support of "friends" will be very helpful. Absent extensions, Plaintiffs have 90 days to file the Writ, according to Rule 13 of the Rules of the Supreme Court of the United States. See: www.supremecourt.gov/ctrules/2010RulesoftheCourt.pdf (cached).
[Plaintiffs were kind enough to identify me as a volunteer with them, in their brief to the Court of Appeals. Please note that the views expressed on this website have been, and remain, my own.]
April 5, 2010: Plaintiffs file letter to Court of Appeals supplementing their brief in order to inform judges of a matter that occured after the brief was filed. In this situation, that "matter" was the publication of a book by Gary Wills called Bomb Power.
February 20, 2010 (Approx.): Plaintiffs receive notice that the Court will take some action on April 20, 2010. What that action will be is unclear to Plaintiffs, so - we wait.
January 13, 2010: Plaintiffs receive copy of government's appellate brief filed in the Third Circuit on December 9, 2009. Since both sides have now filed their briefs with the Court of Appeals, we wait.
November 12, 2009: Plaintiffs file their Brief with Appendices. According to Plaintiffs' Attorney Zurofsky, "Unless an extension of time is sought and granted (a not unlikely event), the President's responding brief will be due on December 14, 2009 and our Reply Brief will be due on December 28, 2009. There is, therefore, a good chance that we will be arguing the case before the Third Circuit sometime before July 4, 2010."
June 16, 2009: Plaintiffs file Notice of Appeal in the United States District Court for the District of New Jersey to start their appeal to the United States Court of Appeals for the Third Circuit
May 20, 2009: Parties receive final corrected version of the transcript from the oral argument held on April 21, 2009.
May 15, 2009: United States District Judge Jose L. Linares signs Order of Dismissal. Concurrently, the Court issued an Opinion explaining the Order. Both documents received in the mail by Plaintiffs' Counsel, May 19.
April 27, 2009: Transcript initially produced by court reporter on or about April 21 is in the amendment and finalization stage by the parties and the Court. The parties received the transcript very quickly and sent their corrections to the Judge, asking that the transcript be amended.
April 21, 2009: We wait for the Judge to make a decision and issue an order. Oral Argument was held today.
What now? Well, plaintiffs have a choice. One - Appeal! This would involve filing a petition for writ of certiorari with the Supreme Court, requesting that they consider our appeal. Two - accept that we lost and ask the court to reconsider. Three - accept that we lost, and give up.
After coming all this way, with plaintiffs who believe strongly in their case and the need to address the wrongs they have suffered, will they be willing to cover the expenses of continuing this litigation? Will we have the heart and the energy to push on with this? After all, we are not getting paid and life is short; the legacy of June 1, 1787 is clear and the only Supreme Court cases are in our favor; but, those cases are pretty old (from the start of the 1800's) and recent lower court cases (since the start of the Vietnam era) are voluminous. Maybe in the interests of - what? - tiredeness (to mix metaphors: "you can't fight city hall," "why make a federal case out of it")? governmental efficiency? national security? social harmony? - we should just give up. Hmmmmm. Let me ponder this a moment. What would you do?
By the way, in thinking about this, I am reminded that some founders and framers thought: that some purposes of government are paramount to the goal of efficiency; that the nation is more secure when the President is able to use the Army and Militia to defend it and, yet, must wait for Congress before ordering the military to take action against another country; and, that "harmony" comes when a unifying goal is achieved through free and robust debate that is then reflected in recorded roll-call votes by individual members of the House and Senate.
Right after oral argument - after all rose and the Judge left the Courtroom - the Court Reporter asked Plaintiffs' counsel if they would be ordering a transcription of the record. She explained that the Judge liked being able to have a print-out of the oral argument in front of him as he prepared his Order. After some discussion with Plaintiffs, counsel informed the Court Reporter that, yes, they would order a copy of the transcript.
December 8, 2008: We do not know.
The issues argued to the Court concerned the procedural questions of "standing" and "political question." In a nutshell,
- "Standing" is whether the plaintiffs have a right to be in this court, and
- "Political Question" is whether the issues brought by the plaintiffs are ones that a Court can decide or are questions better decided by - or given by the Constitution to - elected officials.
At the moment, to me, the reason for this distinction - which probably goes back at least to John Marshall's time - is hazy. I certainly understand the desirability of community input into some decisions. That is why we have a political process. Yet, we have a jury system. Juries are supposed to bring the community into the courtroom. So, it would seem that rather than taking a pass on "hot" issues on which "The People" should have a say, the judicial system could provide jury trials for such issues.
Plaintiffs filed their Response to Defendant President's second Motion to Dismiss. Defendant filed his Reply to Plaintffs' Response today, Monday, December 8, 2008. The Court could have scheduled oral argument as soon as Monday, December 15, 2008. However, the Court has informed the parties that there will be no oral argument, and no decision, in December.
November 7, 2008: Defendant, the President of the United States, filed a Motion to Dismiss. Next, Plaintiff's will prepare their response to Defendant's Motion.
September 8, 2008: An Amended Complaint was filed, adding a new plaintiff. Defendant agreed to dismiss "The President of the United States' Motion to Dismiss" reserving right to refile after reviewing the Amended Complaint. Defendant may file an Answer.
July 21: 2008: Rather than filing an Answer, Defendant filed a Motion to Dismiss. Next, Plaintiff's will prepare their response to Defendant's Motion.
May 13, 2008: The Court will assign a judge. According to the Clerk of Court's FAQ (http://www.njd.uscourts.gov/FAQS.html#judgesassigned):
The Court does not have to schedule oral argument at all. The judge may decide that there is enough information in the pleadings to make a decision on Defendant's request. On the other hand, the Court may decide that having the lawyers in the courtroom, to judge their demeanor and possibly cross-examine them, could be useful in the Court's decision-making process. Therefore, at this time, we do not know what will happen next, or when it will happen, and must wait for the Court to let us know.
"Judges are randomly chosen by a computer database, similar to a deck of cards. When one judge is assigned, the cards are shuffled again for the next selection. The Clerk's Office has no discretion in the assignment of cases."
The Defendant, the President of the United States, has at least until June 4 to file an Answer.
A Defendant has the right to file an Answer. If an Answer is to be filed, it must be timely filed. According to the Federal Rules of Civil Procedure, Rule 12(a)(1)(A)(1)(i)(http://www.law.cornell.edu/rules/frcp/Rule12.htm) a Defendant must file an Answer "within 20 days after being served with the summons and complaint," unless granted more time. Thus, the President's Answer should be due on Wednesday, June 4. However, there are more exceptions.
According to Rule 6, http://www.law.cornell.edu/rules/frcp/Rule6.htm, for a period like this of 11 days or more, the day of the event that begins the period, the filing of the Complaint in this situation, is not counted while the last day is counted "unless it is a Saturday, Sunday, legal holiday, or if the act to be done is filing a paper in court a day on which weather or other conditions make the clerk's office inaccessible." [Emphasis added.]
Thus, it will be June 4, unless the creeks rise, or there is some other good reason for the Clerk's office to be inaccessible, or some other exception applies.
Will the President file an Answer? I don't know - my crystal ball broke some time ago. It is most probable that he will.
Presidents have fought hard against limits on their discretion to use our military force. Recently, that has been especially true in regards to the War Powers Resolution, which was originally vetoed by a President and has never been recognized by a President as binding on the Commander-in-Chief, though Presidents have fairly consistently followed the WPR as a guideline about when and how to report to the Congress on their Presidential use of our military.
However, this case does not ask the Judiciary to require the President to do anything. So, maybe he won't bother.
If a Defendant does not to file an Answer, then the Plaintiff wins by default.
That sounds pretty good for the Plaintiff, but there are some procedures to follow. As you might expect, they are specified in the Federal Rules of Civil Procedure (FRCP). Rule 55 to be exact, which may be found at http://www.law.cornell.edu/rules/frcp/Rule55.htm.
Since the Plaintiffs are not asking for money, other than the fees and costs of bringing this lawsuit, sub-part (b)(2) most likely applies:
The court may conduct hearings or make referrals - preserving any federal statutory right to a jury trial - when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
Thus, in a case which does not call solely for money damages, and relies heavily on history, with little judicial "gloss" on the Constitution, a Defendant would probably get a hearing, even if no Answer is filed.
This is especially true in this case, as sub-part (d) of Rule 55 provides:
"A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court."
Thus, without doing more, the President would likely get his day in Court, would be able to inform the Judge of his arguments, and have a chance to persuade the Judge of the righteousness of those arguments.
Is there any more reason why the President would do this? Perhaps. After all, by doing so, he can take the Plaintiffs completely by surprise. As this hearing would be merely to determine the contours of a judgment, there might be little or no discovery. The Plaintiffs would have no benefit of mountains of defense briefs on which to hone their arguments.
There was no deluge June 4, but no answer either. The government got more time.
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