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Constitutional Law

Exam 4
30 minutes

Fact Pattern

Six months ago, the U.S. Congress declared war on Country A, in response to Country A’s state sponsorship of terrorist activities. U.S. military operations in Country A since the declaration of war yielded no progress but cost thousands of lives. 

As a result, Congress passes the following resolution: “All armed forces of the United States are hereby directed to be removed from Country A no later than two months from the date of this resolution.” The president vetoes the resolution, but Congress overrides the veto by re-enacting the resolution with the required two-thirds majority in both houses. The president then declares that he will ignore the resolution, because he believes the resolution unconstitutionally infringes on his powers as commander-in-chief.

In response to the president’s announcement, the plaintiff, an American military officer, files a lawsuit against the U.S. Secretary of Defense in federal district court. (Assume that the Secretary of Defense is the proper official for the plaintiff to sue in this case.) The complaint alleges that the plaintiff has received orders to deploy to Country A three months from now for a twelve-month tour of duty. The plaintiff seeks an injunction prohibiting his deployment, in light of the congressional resolution directing all American forces to be removed from Country A. The plaintiff further alleges that his deployment would be unlawful, because Congress, not the president, has the constitutional power to declare both the beginning and the end of a war.

The Secretary of Defense files a motion to dismiss, on the basis that the plaintiff’s case presents a non-justiciable political question.


Questions

  1. Should the court grant the motion to dismiss? Explain, focusing only on whether the case presents a non-justiciable political question, but do not consider any other justiciability issue (including standing) and do not consider the merits of the case.

Question 1

Should the court grant the motion to dismiss? Explain, focusing only on whether the case presents a non-justiciable political question, but do not consider any other justiciability issue (including standing) and do not consider the merits of the case.

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