The 45 House Democrats who filed suit to force the Bush administration to get congressional approval before any U.S. attack against Iraqi forces have no legal standing to raise the issue, the Justice Department argues.
The lawmakers don't represent a majority of the House and are raising a political question about the definition of war that the courts are not equipped to deal with, department officials said in the written arguments they were preparing to file in U.S. District Court here.
The department made the brief available last night.
"The Court of Appeals has been reluctant to grant standing to members of Congress alleging generalized, amorphous injuries due to either the actions of their colleagues in Congress or the conduct of the executive," the department said, quoting a 1984 case in the U.S. Circuit Court of Appeals for the District of Columbia.
The department said Congress must allege a concrete injury to its powers in order to invoke the jurisdiction of a court. The 45 House Democrats "have failed to do so here," it said.
The House Democrats, headed by Rep. Ronald V. Dellums (D-Calif.), asked a federal judge last Tuesday to prohibit President Bush from ordering an attack on Iraqi forces unless he first obtains permission from Congress.
War is not imminent so it is premature to consider the issue brought up in the lawsuit, the department argued. The House members "have not alleged that such an attack is imminent, or even probable, but merely that there is a 'realistic threat' of one. The fact that a threat may be 'realistic,' however, does not mean that it is likely to be carried out," the department's brief said.
Congress exercises its prerogatives over military action through the power of the purse, and can deny funds for activities it opposes, the department said.
Earlier yesterday, 11 law professors supported the lawmakers' suit. They argued the Constitution requires that "the president meaningfully consult with Congress and receive its affirmative authorization -- not merely present it with faits accomplis -- before engaging in war."
The professors include Erwin Griswold, who was U.S. solicitor general during the Johnson and Nixon administrations.