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Mandy Simon, (202) 675-2312; media@dcaclu.org
WASHINGTON - In a letter sent to the House of Representatives today, the American Civil Liberties Union asked representatives to cosponsor and vote for H.R. 1212, a bill that would reaffirm Congress' constitutional authority to decide whether President Obama may use military force in Libya. The Restoring Essential Constitutional Constraints for Libyan Action Involving the Military Act (RECLAIM Act) was introduced by Reps. Justin Amash (R-MI) and Timothy Johnson (R-IL).
Today's letter requesting support of the RECLAIM Act is a follow-up to one sent by the ACLU to Congress last week asking both chambers to debate and vote on the issue of whether the president could continue to use military force in Libya. While the ACLU does not take a position on whether military force should be used, the organization has consistently insisted, from the war in Vietnam through both wars in Iraq, that Congress give advance authorization for the use of such force.
Today's letter, signed by Washington Legislative Office Director Laura W. Murphy and Senior Legislative Counsel Christopher E. Anders, states, "Delay in taking up this fundamental question of whether the President may continue to use military force in Libya would mark an abdication by Congress of the war powers reserved for the Congress under Article I of the Constitution. The failure of Congress to act would strike at the very heart of the fundamental principle of separation of powers that is at the core of the Constitution and is the undergirding of our democratic form of government."
The letter concludes, "We urge you to cosponsor the RECLAIM Act, H.R. 1212, and urge prompt committee and floor consideration of the bill, in order for Congress to reassert the most important power that the Constitution assigns to it."
The full text of the letter can be found at www.aclu.org/national-security/aclu-letter-house-urging-cosponsorship-and-support-hr-1212-restoring-essential-con and below:
April 1, 2011
RE: Cosponsor and Support H.R. 1212, the RECLAIM Act, Which Will Reassert the Sole Constitutional Authority of Congress to Decide Whether the President May Use Military Force in Libya
Dear Representative:
The American Civil Liberties Union strongly urges you to cosponsor--and urge prompt committee and floor consideration of--H.R. 1212, the Restoring Essential Constitutional Constraints for Libyan Action Involving the Military Act ("RECLAIM Act"), introduced by Congressmen Justin Amash (R-MI) and Timothy Johnson (R-IL), which would block further United States military action in Libya until and unless the Congress exercises its exclusive constitutional authority to authorize military action. Given the immediacy, gravity, and scope of the armed conflict that the United States entered into in Libya, Congress should no longer shirk its constitutional responsibility to decide whether and when the United States should use significant military force in Libya.
Delay in taking up this fundamental question of whether the President may continue to use military force in Libya would mark an abdication by Congress of the war powers reserved for the Congress under Article I of the Constitution. The failure of Congress to act would strike at the very heart of the fundamental principle of separation of powers that is at the core of the Constitution and is the undergirding of our democratic form of government. The RECLAIM Act would appropriately reassert the authority and responsibility assigned to the Congress by the Constitution. The ACLU does not take a position on whether military force should be used in Libya. However, we have been steadfast in insisting, from Vietnam through both wars in Iraq, that decisions on whether to use military force require Congress's specific, advance authorization. Absent a sudden attack on the United States that requires the President to take immediate action to repel the attack, the President does not have the power under the Constitution to decide to take the United States into war. Such power belongs to the Congress. Consistent with this position, the RECLAIM act prohibits further military action in Libya until and unless authorized by the Congress, but does not assert any position on whether the Congress should authorize further military action.
As Thomas Jefferson once wrote, the allocation of war power to Congress provides an "effectual check to the Dog of war" by "transferring the power of letting him loose from the Executive to the Legislative body . . . ." Letter from Jefferson to Madison (Sept. 6, 1789). Congress alone has the authority to say yes or no on whether the United States can use military force in Libya or anywhere else.
But it is now clear that President Obama has already used significant military force in Libya. On March 19, 2011, the President took the United States into an armed conflict in Libya that has, to date, included a significant commitment of American military force, with targets that have included Libyan air defenses, ground forces loyal to Muammar Qadhafi, a building in a compound regularly used by Qadhafi, and even Libyan boats. On the first day of combat alone, more than 100 Tomahawk cruise missiles were fired into Libya from offshore naval vessels. During the first several days, U.S. bombers and fighter aircraft attacked air defenses and ground forces across Libya. Although there are no reports of U.S. service members killed in action, an Air Force fighter plane and its crew of two Air Force pilots went down over Libya on March 21. According to Marine Times, the rescue of the pilots required seven Marine aircraft and the dropping of two bombs near bystanders. Numerous media outlets report significant casualties among Libyans, including civilian casualties.
During the past week, the United States dramatically ramped up its attacks in Libya. According to several media reports, the United States is now using low-flying AC-130 flying gunships and A-10 attack aircraft, which are typically used to attack ground troops and supply lines, and which also carry greater risk of casualty to aircraft crews. Also, the CIA has reportedly deployed teams of operative to Libya, who will be serving on the ground. Other media reports have even reported attacks on Libyan boats. These stepped up attacks are consistent with a broadened scope of the commitment made by the United States, which appears to extend well beyond solely protecting civilians from harm. Although the government reportedly is in the process of turning some operational command over to NATO, the United States alone decides the scope of its own commitment, and the Congress still has the sole constitutional authority to decide whether military force may be used.
The Executive Branch's assertions of unilateral authority to enter the armed conflict in Libya cannot and should not go unchallenged by the Congress. The decision whether to go to war does not lie with the President, but with Congress. Congress's power over decisions involving the use of military force derives from the Constitution. Article 1, Section 8 provides that only the Congress has the power "To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water," among other war powers.
The structure of the Constitution reflects the framers' mistrust of concentrations of power and their consequent separation of those powers into the three branches of our government. The framers well understood the danger of combining powers into the hands of a single person, even one who is elected, particularly a person given command of the armed forces. In order to prevent such an accumulation in times of war or emergency, the framers split the war powers between the Executive and Legislative branches, giving the Congress the power to declare war, i.e., make the decision whether to initiate hostilities, while putting the armed forces under the command of the President.
In giving the power of deciding whether to go to war to Congress alone, the framers made clear that the President's powers as Commander in Chief, while "nominally the same [as] that of the king of Great Britain . . . in substance [is] much inferior to it." The Federalist No. 69 (Alexander Hamilton). As Alexander Hamilton explained, the power of Commander in Chief "would amount to nothing more than the supreme command and direction of the military and naval forces; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all of which, by the Constitution under consideration, would appertain to the legislature." Id.
Chief Justice Marshall made clear, as early as 1801, that the Executive Branch did not have the power to decide whether the country will use military force. In a series of cases involving the seizure of vessels during an undeclared naval war with France, the Supreme Court made clear that Congress, not the President, was the ultimate repository of the power to authorize military force. See Little v. Barreme, 6 U.S. 170 (1804), Talbot v. Seeman, 5 U.S. 1, 28 (1801); Bas v. Tingy, 4 U.S. 37 (1800). As Marshall made clear, "The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry." Talbot, 5 U.S. at 28 (1801).
In The Prize Cases, 67 U.S. 635 (1863), the Supreme Court found that a "state of war" may exist without a declaration of war. But the peculiar context of the Civil War explains those cases. Indeed, the Court reaffirmed that, in contrast to the President's power to suppress insurrections, "By the Constitution, Congress alone has the power to declare a national or foreign war." Id. at 668.
Although some supporters of unlimited Presidential war making power argue that the President, as Commander in Chief, has the ability to use military force whenever he deems it necessary in the "national interest" and need not obtain either a declaration of war or Congressional approval,this view is based on a misreading of history. Proponents of this view make much of the fact that the drafters of the Constitution had considered giving Congress the sole power to "make War," but in the end decided its power would be to "declare War." Some supporters of Executive power claim this means the President has the power to make war regardless whether Congress has acted. However, James Madison explained that this change was made simply to leave "to the Executive the power to repel sudden attacks." Debates in the Federal Convention, Aug. 17, 1787. According to Hamilton, "anything beyond" such use of military force "must fall under the idea of reprisals and requires the sanction of that Department [i.e., the Congress] which is to declare or make war." Letter from Hamilton to Sec. of War James McHenry. May 17, 1798.
As this history makes clear, the correct view of the Constitution, and the unbroken view of Congress, has been that the President's power to engage in large-scale military operations without Congressional approval is limited to the power "to repel sudden attacks." Any other use of military force requires a declaration of war or other Congressional authorization.
Another defense of unilateral presidential decisions to take the United States into war is the claim that the War Powers Act, which was enacted in 1973 as a response to presidential overreaching in expanding and extending the Vietnam War, somehow gives a president a 90-day free pass to go to war without congressional authorization. The War Powers Act provides that, if Congress does not consent to the use of military force within 60 days of the President first reporting to Congress on a military action, then the President must withdraw American forces within 30 days. 50 U.S.C SS 1544(b). But the timetable in the War Powers Act is a statutory safeguard and not a free pass to get around the Constitution. It is a backstop for remedying presidential wrongs, and does not override the Constitution's allocation of war powers between the Executive Branch and the Congress.
Another defense of unilateral presidential decisions to join an armed conflict is a claim that a United Nations resolution provides authority to intervene, or somehow NATO operational command provides its own source of authority to intervene. While a particular United Nations resolution may or may not be sufficient to permit the use of force under international law, such resolution does not constitute congressional approval of the use of force and therefore provides no authority for the use of force under the Constitution. Similarly, the United States decides the scope of its commitment to NATO operations, not NATO. Congress reinforced this position against any international body having the power to commit the United States to war when, in Section 8(a) of the War Powers Act, it specifically rejected the idea that power to commit troops may be "inferred . . . from any treaty heretofor or hereafter ratified" without separate congressional authorization.
Finally, Executive Branch "consultations" with members of Congress, briefings of congressional staff, or testimony at hearings may be useful for congressional oversight, but are not a substitute for the Congress carrying out its obligations under Article I of the Constitution. No amount of letters, congressional testimony, or Situation Room briefings can make up for the House and Senate standing idly by while the President usurps the authority that the Constitution reserves for the Congress, to decide whether the United States should use force in Libya.
President Obama has already unleashed Jefferson's "Dog of war" in Libya, without congressional authorization. That constitutional wrong has already happened. It is now up to the Congress, as representatives of the American citizenry, to exercise its exclusive authority under the Constitution to decide whether the President may continue to use military force there. We urge you to cosponsor the RECLAIM Act, H.R. 1212, and urge prompt committee and floor consideration of the bill, in order for Congress to reassert the most important power that the Constitution assigns to it. Please do not hesitate to contact us if you have any questions regarding this matter.
Sincerely,
Laura W. Murphy
Director
Christopher E. Anders
Senior Legislative Counsel
The American Civil Liberties Union was founded in 1920 and is our nation's guardian of liberty. The ACLU works in the courts, legislatures and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by the Constitution and laws of the United States.
(212) 549-2666One legal expert called it "unquestionably a win for the Trump administration, but on remarkably narrow and modest terms."
Republican-appointed justices handed the second Trump administration its first win at the U.S. Supreme Court on Friday, allowing the Department of Education to temporarily freeze millions of dollars in grants intended to help states combat K-12 teacher shortages while a legal battle over the money plays out.
The emergency order was unsigned, but the three liberals—Justices Ketanji Brown Jackson, Elena Kagan, and Sonia Sotomayor—all dissented, and Chief Justice John Roberts noted that he "would deny the application" without offering further explanation. That means the decision came from the other five right-wingers, including three appointees of President Donald Trump.
The decision stems from a federal lawsuit filed in the District of Massachusetts by a coalition of Democratic state attorneys general last month after the U.S. Education Department "arbitrarily terminated approximately $600 million in critical grants" for two programs: the Teacher Quality Partnership (TQP) and Supporting Effective Educator Development (SEED).
The coalition's initial complaint explains that Congress authorized the funding "to address nationwide teacher shortages and improve teacher quality by educating, placing, and supporting new teachers in hard-to-staff schools, especially in rural and other underserved communities, and in hard-to-staff subjects, such as math and special education."
"The department's actions appear to encompass 'policy objectives' of ending disfavored but lawful efforts to promote diversity, equity, and inclusion—objectives that Congress expressly directed grantees to carry out in creating these programs, including by identifying that these teacher preparation programs should assist 'traditionally underserved' local education agencies... and ensure 'general education teachers receive training in providing instruction to diverse populations, including children with disabilities, limited English proficient students, and children from low-income families," the document details.
U.S. District Judge Myong Joun—an appointee of former President Joe Biden—found that the coalition was likely to succeed on the merits of its claims under the Administrative Procedure Act and issued the temporary restraining order sought by offiicals in California, Colorado, Illinois, Maryland, Massachusetts, New Jersey, New York, and Wisconsin.
However, the country's high court granted a stay on Friday, concluding that the Trump administration "is unlikely to recover the grant funds once they are disbursed," the plaintiff states "have the financial wherewithal to keep their programs running" during the legal fight, and if they "ultimately prevail, they can recover any wrongfully withheld funds through suit in an appropriate forum."
In a dissent that was under two pages, Kagan wrote that "nothing about this case demanded our immediate intervention. Rather than make new law on our emergency docket, we should have allowed the dispute to proceed in the ordinary way."
Jackson argued in her longer dissent, joined by Sotomayor, that "this court's eagerness to insert itself into this early stage of ongoing litigation over the lawfulness of the department's actions—even when doing so facilitates the infliction of significant harms on the plaintiff states, and even though the government has not bothered to press any argument that the department's harm‐causing conduct is lawful—is equal parts unprincipled and unfortunate. It is also entirely unwarranted."
In a footnote that drew attention from court watchers, Jackson accused the majority of handing the Trump administration "an early 'win'—a notch in its belt at the start of a legal battle in which the long-term prospects for its eventual success seem doubtful," and expressed concern that "permitting the emergency docket to be hijacked in this way, by parties with tangential legal questions unrelated to imminent harm, damages our institutional credibility."
I am fascinated by this fourth wall–breaking footnote from Justice Jackson criticizing the majority for handing the Trump administration "a notch in its belt at the start of a legal battle in which the long-term prospects for its eventual success seem doubtful." It's more about optics than law ...
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— Mark Joseph Stern ( @mjsdc.bsky.social) April 4, 2025 at 4:44 PM
Trump's billionaire education secretary, former wrestling executive Linda McMahon, welcomed the ruling as "an important step towards realizing the president's agenda to ensure that taxpayer funds that support education go toward meaningful learning and serving our students—not to train teachers in radical racial and gender ideologies."
Meanwhile, Steve Vladeck, CNN's Supreme Court analyst and a Georgetown University Law Center professor, said that Friday's decision "is unquestionably a win for the Trump administration, but on remarkably narrow and modest terms."
"It leaves open the possibility that the plaintiffs are going to win not just this case, but a bunch of other challenges to the government's cancellation of grants, while freezing the order in this specific case. And even that was a bridge too far for Chief Justice Roberts and the three Democratic appointees," he added. "It's a victory for the government, but a short-lived one that may soon be overtaken by far more significant losses in the other pending cases in which Trump has asked the justices to intervene."
CNN noted that the Supreme Court "has already resolved two emergency appeals from the Trump administration" and is still considering others on topics including Trump's efforts to end birthright citizenship and to invoke the Alien Enemies Act for mass deportations.
"The North Carolina Republican Party is one step closer to stealing an election in broad daylight," said one state Democrat.
Allison Riggs, a Democratic associate justice on the North Carolina Supreme Court, vowed to continue a legal battle over her narrow November victory after a state appeals panel on Friday took a major step toward invalidating more than 60,000 votes.
Riggs' GOP challenger, Judge Jefferson Griffin, lost by 734 votes—but rather than conceding, he has sought to have select ballots thrown out. In Friday's 2-1 decision, Republican Judges Fred Gore and John Tyson gave the targeted citizens 15 days to provide documentation to election workers confirming their eligibility to vote. If they don't do so, their votes could be discarded.
"We will be promptly appealing this deeply misinformed decision that threatens to disenfranchise more than 65,000 lawful voters and sets a dangerous precedent, allowing disappointed politicians to thwart the will of the people," Riggs said in a statement.
"North Carolinians elected me to keep my seat, and I swore an oath to the Constitution and the rule of law—so I will continue to stand up for the rights of voters in this state and stand in the way of those who would take power from the people," she added.
Since Riggs has recused herself from the case, only six of the North Carolina Supreme Court's justices will hear her appeal, "raising the possibility of a 3-3 deadlock," The News & Observerreported Friday.
As the Raleigh newspaper detailed:
If that were to happen, the most recent ruling of a lower court prevails, which means Friday's decision from the Court of Appeals could stand.
Riggs has said that if she loses at the state court level, she intends to return the case to federal court.
Republicans already hold a 5 to 2 majority on the state Supreme Court. If Griffin ultimately wins his case and replaces Riggs, that majority will grow to 6 to 1, further complicating Democrats' hopes to retake control of the court in coming elections.
Although the court fight is far from over, Griffin spokesperson Paul Shumaker and North Carolina GOP Chair Jason Simmons cheered Friday's decision, from which Democratic Judge Toby Hampson dissented.
Hampson's dissent begins by pointing out that Griffin "has yet to identify a single voter—among the tens of thousands petitioner challenges in this appeal—who was, in fact, ineligible to vote in the 2024 general election under the statutes, rules, and regulations in place in November 2024 governing that election."
"Changing the rules by which these lawful voters took part in our electoral process after the election to discard their otherwise valid votes in an attempt to alter the outcome of only one race among many on the ballot is directly counter to law, equity, and the Constitution," Hampson argued.
Democratic leaders in North Carolina and beyond also blasted the majority's decision. State Democratic Party Chair Anderson Clayton said that "Judge Tyson and Gore put party affiliation above the rights of North Carolina voters" when they "legitimized Jefferson Griffin's unconstitutional challenge" to tens of thousands of legally cast votes.
Reminder: From my legal and partisan sources, this ultimately gets decided based on how fed courts address military and overseas voters who didn't provide photo ID (and were expressly advised before election that they didn't need to). Why it matters: andersonalerts.substack.com/p/nc-supreme...
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— Bryan Anderson (@bryanranderson.bsky.social) April 4, 2025 at 2:23 PM
North Carolina House of Representatives Minority Leader Robert Reives (D-54) declared: "We cannot mince words at this point: The North Carolina Republican Party is one step closer to stealing an election in broad daylight. Justice Allison Riggs won her election—full stop. Our democracy continues to be tested, but we cannot allow it to break."
Democratic National Committee Chair Ken Martin warned that "this partisan decision has no legal basis and is an all-out assault on our democracy and the basic premise that voters decide who wins their elections, not the courts. If upheld, this could allow politicians across the country to overturn the will of the people."
"North Carolinians chose Allison Riggs to be their North Carolina Supreme Court justice," Martin stressed. "They won't stand for Republicans trying to take their votes away or those of active duty North Carolina military. It's six months past time for Jefferson Griffin to concede this race that he lost."
Bob Phillips, executive director of the nonpartisan voting rights organization Common Cause North Carolina, was similarly engaged, saying: "Today's ruling is a disgrace. This poorly conceived decision is an extreme overreach and sides with a sore loser candidate over the citizens of our state. If allowed to stand, the ruling would inject chaos into North Carolina's elections in ways that could disenfranchise tens of thousands of lawful voters and invite similar challenges nationwide."
Phillips continued:
Let's be clear: these North Carolina voters did absolutely nothing wrong. They followed the rules and cast ballots that should count. To say otherwise now is an affront to the rule of law and our Constitution.
If Griffin gets his way, never again will the people of North Carolina be able to have confidence in the outcome of our elections. Instead, Griffin's reckless lawsuit will open the door to an endless stream of other sore loser candidates who will attempt to throw out enough votes until they can cheat their way into office.
This fight is not over. We are confident that the courts will ultimately see Griffin's ploy for what it is: an unconstitutional attack on our freedom to vote.
"The people of North Carolina will continue to protest against Griffin's outrageous attack on our rights," he added, "as we continue our work to protect our family members, friends, and neighbors who are targeted by Griffin's disgraceful scheme."
"How the government reacts will tell us so much about how far down the road to autocracy we are," said one lawyer.
A U.S. judge on Friday ordered the return of a Maryland resident who the Trump administration mistakenly deported to a prison in El Salvador last month, according to The Associated Press.
Prior to issuing the ruling, U.S. District Judge Paula Xinis called the deportation of Kilmar Abrego Garcia "an illegal act."
The judge, an appointee of former President Barack Obama, gave the Trump administration end of the day of the day on Monday to bring him back to the United States.
Supporters outside the courtroom cheered as the judge handed down her order, according to The Washington Post.
Responding to the ruling on social media, U.S. Rep. Pramila Jayapal (D-Wash.) said: "This is a big win. Now Trump must comply with the judge's order."
Immigration lawyer Ava Benach wrote: "The right decision. How the government reacts will tell us so much about how far down the road to autocracy we are."
The right decision. How the government reacts will tell us so much about how far down the road to autocracy we are.
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— avabenach.bsky.social (@avabenach.bsky.social) April 4, 2025 at 3:27 PM
Abrego Garcia was among hundreds of people the administration expelled in mid-March to a notorious megaprison in El Salvador after targeting them for alleged gang ties.
In a court papers filed earlier this week in the U.S. District Court for the District of Maryland, an Immigration and Customs Enforcement (ICE) acting field office director admitted that the removal of Abrego Garcia on March 15 "was an error."
Abrego Garcia was deported despite the fact that in 2019, a U.S. immigration judge ruled that he could not be deported to his native El Salvador because he would likely face gang persecution there.