## Facts

- A group of active-duty military members, parents of service members, and several members of the U.S. House of Representatives sued the President and the Secretary of Defense to prevent initiation of military action against Iraq.
- Plaintiffs sought a preliminary injunction barring an Iraq war, alleging the President lacked constitutional authority because Congress had not declared war and had not validly authorized the planned offensive.
- In October 2002, Congress enacted the Authorization for Use of Military Force Against Iraq Resolution of 2002, authorizing the President to use the Armed Forces as he determined necessary and appropriate to address the threat from Iraq and to enforce relevant U.N. Security Council resolutions.
- Plaintiffs advanced two separation-of-powers theories: (1) “collision,” that the President was about to act contrary to statutory limits in the 2002 authorization; and (2) “collusion,” that Congress unconstitutionally delegated or abdicated its Article I power to declare war by granting the President excessive discretion.
- The district court dismissed the case, reasoning that the dispute raised a non-justiciable political question in the absence of a clear, resolute conflict between the political branches.

## Issues

1. Whether a pre-enforcement challenge seeking to enjoin anticipated military action against Iraq presented a ripe, justiciable case or instead implicated non-justiciable political question and prudential concerns.
2. Whether the 2002 authorization failed to authorize the contemplated hostilities (“collision”) or unconstitutionally delegated/abdicated Congress’s Article I war-declaring authority (“collusion”).

## Decision

- The First Circuit affirmed dismissal and denial of preliminary injunctive relief.
- The court held the dispute was not ripe for judicial resolution because plaintiffs did not present a sufficiently clear constitutional issue or a concrete, resolute impasse between Congress and the President.
- On the “collision” theory, the court found plaintiffs’ claim speculative and unsupported by a developed factual record showing the President would act beyond the authorization’s terms.
- On the “collusion” theory, the court stated that an extreme case (e.g., Congress granting the President absolute discretion to start a war at will) might be justiciable, but concluded the 2002 authorization and broader congressional involvement did not amount to such an abdication.

## Legal Principles

- Federal courts generally will not intervene in war-powers disputes absent a sufficiently concrete and clearly framed constitutional conflict between the political branches.
- Pre-enforcement efforts to enjoin contemplated military operations are likely unripe when it is unclear that the Executive will act contrary to statutory limits or against congressional opposition.
- A claim that Congress unconstitutionally abdicated its Article I responsibilities requires an extreme showing; sustained legislative involvement through authorizations, findings, and related actions weighs against an abdication theory.
- Separation-of-powers and institutional-competence concerns counsel judicial restraint in foreign affairs and military matters unless the constitutional boundary violation is clear.

## Conclusion

The First Circuit declined to block anticipated military action against Iraq, concluding that the challenge was premature and lacked a clear constitutional impasse: Congress had enacted a specific use-of-force authorization and remained actively engaged, and plaintiffs had not shown either an imminent statutory violation by the Executive or an extreme congressional abdication of war-declaring authority.


Doe v. Bush, 323 F.3d 133 (1st Cir. 2003)