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Furthermore, the plaintiffs argued, they had no adequate "inhouse” remedy under either the War Powers Resolution or the Foreign Assistance Act, or through the power over the purse. Particularly with respect to the War Powers Resolution, the plaintiffs noted that it was intended to operate automatically in order to place the burden on the President to seek approval from Congress within sixty days of the introduction of U.S. armed forces. “The WPR does not require Congress to pass another law or resolution mandating the removal of troops," insisted the plaintiffs. [Id. at 10]
Finally, the plaintiffs contended that they did, in fact, have a right of action which entitled them to the relief they sought. In their view, the right of action was based on a violation of the War Powers Clause (the Congressional power to declare war having been usurped by the defendants), and was reinforced by the War Powers Resolution:
The clear and undisputed language of the WPR establishes
Section 1541 is intended to assure that Congress will ex-
The WPR thus evinces an "unmistakable focus" on the rights of Congress and explicitly provides the institution and it members with designated rights. Cf. Cannon v. University of Chicago, 441 U.S. at 690-693. (Id. at 47 (emphasis
in original)] Additionally, the plaintiffs claimed to have a cause of action under the Foreign Assistance Act, although they conceded that they had no independent cause of action under international law.
On November 20, 1981, the defendants filed a reply to the plaintiffs' opposition to their motion to dismiss. The reply essentially restated the defendants' earlier arguments on the political question doctrine, standing, and right of action, and asserted that the plaintiffs' legal analysis was faulty insofar as applicable precedents were concerned. The defendants claimed as well that a “recent congressional initiative” demonstrated that no constitutional impasse existed requiring adjudication:
Two weeks before plaintiffs filed their opposition, the Senate passed a provision to the proposed International Security and Development Cooperation Act of 1981, to provide for the continuation of the very assistance that plaintiffs request this Court to enjoin. The House Foreign Affairs Committee has also recommended the authorization
of such assistance which the full House will consider short-
The recent congressional action underscores the fact
Dismiss, November 20, 1981, at 8-9 (footnotes omitted)] On January 4, 1982, the plaintiffs filed a brief rejoinder to the defendants' reply memorandum reiterating their previous contentions.
On February 5, 1982, District Judge Joyce Hens Green issued an order denying the June 18, 1981 motion of sixteen Senators and thirteen Congressmen to intervene in the case as party defendants. Judge Green held that the prospective intervenors had failed to demonstrate that their interests would be inadequately represented by the Executive branch defendants. She did note, however, that their interests might diverge from those of the Executive defendants if and when the merits of the suit were reached; therefore Judge Green's denial of the motion to intervene was without prejudice to its later renewal if it became appropriate. The court did order the prospective intervenors to be designated as amici curiae and allowed them to file a brief on the pending motion to dismiss.
On February 9, 1982, the defendants filed a supplemental memorandum in support of their motion to dismiss. The memorandum specifically referred to recent Congressional action, signed into law by President Reagan, which purportedly authorized the provision of security assistance to El Salvador. (International Security and Development Cooperation Act of 1981, Pub. L. No. 97-113, 95 Stat. 1519 (1981)) According to the defendants, passage of the act further demonstrated that the action had to be dismissed:
Congress, however, has now specifically approved the continuation of the very foreign assistance which plaintiffs seek to have this Court terminate. Rather than suffering from any diminution in its power, Congress has vigorously asserted itself in a manner wholly at odds with plaintiffs’ position. The passage of the Act, in itself, proves that there has been no injury to the legislative branch upon which plaintiffs can base a claim of derivative injury. Even if there had been an injury sufficient to create standing, moreover, plaintiffs' claims have been mooted by the decision of Congress to provide economic and military assistance.
Enactment of the International Security and Development Cooperation Act of 1981 also demonstrates that this action involves a nonjusticiable political question. As pre
viously discussed by the defendants, the Court must dis-
9, 1982, at 4-5 (footnotes omitted)] On February 10, 1982, the Congressional amici filed a brief in support of the defendants' motion to dismiss. Their arguments roughly paralleled those of the defendants and were based on the contention that the court lacked subject matter jurisdiction over the action since the “case or controversy" requirement of Article III of the Constitution had not been met. The amici maintained that: (1) the case presented a nonjusticiable political question, particularly since every "subcommittee, committee, or full house of Congress which considered plaintiffs' arguments for terminating aid to El Salvador rejected them,” and if the court intervened it would be “substitut[ing] its judgment for the policy judgment of the political branches of our government" without any expertise or judicially manageable standards [Brief of Amici Curiae, February 10, 1982, at 21]; (2) the plaintiffs lacked standing because they had not suffered injury-in-fact since “no objective injury to their vote has been alleged . . . , nor do they even seek any remedy that would give them any opportunity to vote” [Id. at 31-32]; (3) prudential considerations counseled dismissal of the complaint under the holding of the Riegle case, supra, since legislative redress was “not only available, but contemplated under the War Powers Resolution" at 34); and (4) the plaintiffs' claims were not ripe for judicial review since the Executive and Legislative branches had not reached a constitutional impasse.
Also on February 10, 1982, the amici filed a request to participate in oral argument on the motion to dismiss. This request was denied in an order filed the same day by Judge Green.
On February 12, 1982, the defendants' motion to dismiss was argued and taken under advisement.
On February 18, 1982, the plaintiffs filed two posthearing memoranda: a reply to the amici's brief and a reply to the defendants' supplemental memorandum. The former basically set forth argu
[id. ments already made by the plaintiffs in prior submissions to the court. The latter disputed the defendants' contention that passage of the International Security and Development Cooperation Act of 1981 rendered the issues in the case moot or nonjusticiable. According to the plaintiffs, the 1981 legislation in no way affected their claim that U.S. troops were in El Salvador in violation of the War Powers Resolution since the act did not purport to authorize the assignment to El Salvador of members of the armed forces equipped for combat and accompanying Salvadoran forces engaged in hostilities.
On February 23, 1982, the defendants filed a response to the plaintiffs' post-hearing memoranda, once again arguing that the plaintiffs lacked standing and that the case was barred by the political question doctrine.
On July 19, 1982, the plaintiffs filed a supplement to their opposition to the defendants' motion to dismiss the complaint. The supplement consisted of three news articles which purportedly demonstrated that U.S. troops had been introduced into hostilities in El Salvador and indicated as well that additional U.S. forces might be sent to that country, again without Congressional approval.
On August 11, 1982, the defendants filed a response to the plaintiffs' supplement, insisting that the articles only confirmed that the issues in the case could be resolved by the political branches of government. The response noted that there had been several Congressional actions involving El Salvador over the past months, including work on the International Security and Development Act of 1982, passage of a resolution to amend the requirements of Presidential certification for continued aid to El Salvador, and additional hearings. The response concluded:
Throughout this time, Congress presumably has been aware of the same newspaper articles which plaintiffs have presented to this Court. Congress, however, has not chosen to adopt any of the resolutions which would either require filing of a report under the War Powers Resolution or alter our relationship with El Salvador by terminating the foreign assistance provided by the President and the Congress. Nonetheless, plaintiffs have had and will continue to have abundant and effective opportunities within the Congressional process to persuade their colleagues that assistance to El Salvador should be terminated. Accordingly, plaintiffs' attempts to have this Court step in as Congress' trustee should be rejected and the motion to dismiss should be granted. (Defendants' Response to First Supple
., August 11, 1982, at 2-3 (footnote omitted)) On August 13, 1982, the plaintiffs filed a second supplement to their opposition to the defendants' motion to dismiss. This supplement consisted of another newspaper article, describing a General Accounting Office report supposedly confirming that U.S. forces in El Salvador were subject to hostilities and therefore covered by the War Powers Resolution.
On August 20, 1982, the defendants filed a response to the plaintiffs' second supplement, arguing that the newspaper articles were inadmissable to prove the truth of the matter and therefore could
not be considered by the court. Further, the defendants argued, only the threshold questions of standing, right of action, jurisdiction (i.e., with respect to the political question doctrine), and equitable discretion were properly before the court on the motion to dismiss, the well-pleaded factual allegations being assumed to be true for purposes of the motion. The actual truth of the plaintiffs' factual allegations, the defendants maintained, was not before the court and the articles were therefore irrelevant.
On October 4, 1982, Judge Green handed down a memorandum opinion and order granting the defendants' motion to dismiss the complaint. (Crockett v. Reagan, 558 F. Supp. 893 (D.D.C. 1982)] First addressing the War Powers Resolution, Judge Green ruled that the "cause of action under the WPR in its present posture is non-justiciable because of the nature of the factfinding that would be required," and that "the 60-day automatic termination provision is not operative unless a report has been submitted or required to be submitted by Congress or a court." [558 F. Supp. at 896]
Judge Green emphasized that the parties had presented “significantly different" pictures of what was occurring in El Salvador and the relationship of U.S. military personnel to events there. In fact, said the judge, “the most striking feature of the pleadings at this stage of the case is the discrepancy as to the facts." [Id. at 897] While Judge Green characterized the plaintiffs' allegations as “at a minimum, disturbing," she ruled that "[t]his nonetheless does not mean that judicial resolution is appropriate to vindicate, allay or obviate plaintiffs' concerns." [Id. at 898] In fact, Judge Green held, Congressional, rather than judicial, factfinding was required, and the case was therefore nonjusticiable:
The Court concludes that the factfinding that would be necessary to determine whether U.S. forces have been introduced into hostilities or imminent hostilities in El Salvador renders this case in its current posture non-justiciable. The questions as to the nature and extent of the United States' presence in El Salvador and whether a report under the WPR is mandated because our forces have been subject to hostile fire or are taking part in the war effort are appropriate for congressional, not judicial, investigation and determination. Further, in order to determine the application of the 60-day provision, the Court would be required to decide at exactly what point in time U.S. forces had been introduced into hostilities or imminent hostilities, and whether that situation continues to exist. This inquiry would be even more inappropriate for
the judiciary. (Id.] It followed, the judge found, that the case involved a political question to the extent that there were no judicially discoverable and manageable standards to guide its resolution, and because it required judicial inquiry into sensitive military matters with which Congress, but not the court, was familiar. Nonetheless, Judge Green specifically rejected the defendants' contention that the case presented a political question because it involved potential judicial interference with Executive branch discretion in the foreign affairs