FIRST CIRCUIT REJECTS CHALLENGE TO WAR

The First Circuit did not bring any surprises to the table in its ruling today rejecting claims by some members of the military, their families, and some members of Congress, that the courts will not intervene to answer the question of whether Bush's push for war absent an explicit congressional declaration of war is constitutional. Read the opinion here (link via How Appealing). The First Circuit based its ruling 1) on the contention that the issue was not "ripe," meaning, at least, that there is no war yet, and 2) on the contention that the October joint resolution doesn't clearly delegate warmaking powers to the president (and the nature of war powers -- that they're shared -- is arguably reflected, rather than ignored, in the resolution and all the joint Congressional and executive dealings on Iraq).

One minor detail that is of some interest is the First Circuit's appropriation of Bush v. Gore as an example of a case where the Supreme Court could have applied the political questions doctrine, but didn't even address it and instead went straight "to the merits." The First Circuit focuses here on Rehnquist's concurrence and its discussion of the division of power between state legislatures and state judiciaries. In the context of a case in which the First Circuit is explicitly disavowing any power to decide the present case, the reference to BvG seems like a subtle dig at the Supreme Court. But maybe not.

I discussed Doe v Bush earlier, if you're interested, here.