Bush’s Day in Court

With thousands having taken to the streets the world over to oppose the Bush administration’s headlong rush to war against Iraq, a Harvard Law School (HLS) alum is pursuing a less conventional form of opposition. John C. Bonifaz is suing the President.

Bonifaz, who graduated from HLS in 1992, will appear in Massachusetts District Court on Monday to argue that Bush must wait for a formal declaration of war from Congress before sending troops into combat in Iraq. It is refreshing to see such a bold action taken by a private individual who is concerned about the executive branch abusing the constitutional limits on its powers.

Bonifaz is taking a stand against a very disturbing erosion of the constitutional separation of powers. The President has already mobilized hundreds of thousands of troops to the Persian Gulf and has said that war will arrive in a matter of weeks. Under these conditions, Congress must demand that the President ask them for a formal declaration of war if he is going to invade Iraq. Although Congress passed a resolution authorizing such action last fall, it was vaguely worded—and, according to Bonifaz, illegally ceded war-making powers to the President. Indeed, Congress has not formally declared war since World War II—undermining the system of checks and balances by leaving the power to make war in the President’s hands.

Bonifaz’s methods are admittedly a bit unusual, and clearly the suit is partially intended to garner publicity. But attracting public attention to this issue is a constructive goal in itself. His suit will likely raise interesting legal questions about war powers and create welcome debate about the shift of war-making power from Congress to the President. In particular, it could stimulate much-needed debate about the unconstitutional way in which President Bush has tried to impel the country toward war in Iraq.

Bonifaz is confident about his chances for garnering an injunction against the President. And now that Bush has openly declared that he will not be swayed by the substantial protests that have taken place in New York and elsewhere in the country, citizens clearly have few options left for keeping the government accountable. Bonifaz has made use of one of the few remaining avenues of enfranchisement.

The constitutional framework of separated powers is under threat from Bush’s zealous pursuit of war in Iraq. It is quite fitting that an alum of the Harvard Law School should challenge the executive branch’s disregard for that legal framework. The Constitution’s framers deliberately vested the power to make war in the legislative branch to prevent the President from wielding the tyrannical power of a king. Congress has a duty to defend its prerogatives from executive abuses—but since it has lapsed in this duty, it is admirable and heartening that a concerned citizen is taking a stand to defend the Constitution.