The Justice Department is asking a federal judge to throw out a lawsuit 10 members of Congress filed in June, demanding that U.S. military support for the NATO operation in Libya be shut down because President Barack Obama's orders violate the Constitution and the War Powers Resolution.
In a brief filed Friday afternoon, Justice Department lawyers say lead plaintiff Rep. Dennis Kucinich (D-Ohio) and the other lawmakers are free to push anti-war measures in Congress but they have no right to relief in the courts.
"Plaintiffs are fully able, in their legislative capacities, to seek their desired goal. A decade of binding precedent, however, squarely forecloses their standing to seek this goal through the judicial system when their legislative efforts have failed in Congress," said the brief filed under the name of Assistant Attorney General Tony West and other DOJ officials.
The DOJ brief argues, in essence, that the dispute about authorization for use of military force against Libya is a political one and not readily susceptible to resolution by the courts. The brief (posted here) relies primarily on Campbell v. Clinton, a D.C. Circuit ruling from 2000 that rejected a challenge to the involvement of U.S. troops in Bosnia and Kosovo.
One interesting and potentially awkward aspect of the Justice Department's opposition to the suit: the acting head of the Justice Department's Office of Legal Counsel reportedly concluded that the continued involvement of U.S. forces in Libya after 90 days passed violated the War Powers Resolution. That's essentially the position taken by the House members in their lawsuit. Of course, there's always the possibility that even if the Libya action violates the WPR, the WPR is unconstitutional, but that's an argument the Obama administration would likely prefer not to make if it can avoid it.