About the
News & EventsAlumni
& Giving
Make a Gift

News Release (Back to Menu)

U.S. Supreme Court Asked by Constitutional Litigation Clinic to Hear Case Challenging Constitutionality of War in Iraq

November 04, 2010 – 
The Rutgers School of Law–Newark Constitutional Litigation Clinic today filed a Petition for a Writ of Certiorari in the United States Supreme Court in a case challenging the invasion of Iraq by President Bush in the absence of a Declaration of War by Congress.

The Plaintiffs in the case are New Jersey Peace Action, a 50-year-old anti-war organization; William Joseph Wheeler, an Iraq war veteran; and two mothers whose sons had been deployed in Iraq – Anna Berlinrut of Nutley, New Jersey and Paula Rogovin of Teaneck, New Jersey.

The case was dismissed by both the Federal District Court in Newark and the U.S. Court of Appeals in Philadelphia on procedural grounds, without reaching the merits of the constitutional claim.

The plaintiffs are represented by Rutgers Professor Frank Askin, Director of the Constitutional Litigation Clinic, and Newark attorney Bennet Zurofsky, and students in the Rutgers Law School clinic, who have worked on the case for the past three years.

Plaintiffs’ case is based on the original intent of the Framers of the Constitution to take the power of peace and war out of the hands of a single executive and place it in the hands of Congress. Plaintiffs’ arguments rely heavily on the records of the Constitutional Convention on June 1, 1787, and the rulings of the Supreme Court in the first half of the 19th century.

The petition notes that since the end of World War II, U.S. presidents have regularly ignored the intent of the Framers and instituted foreign hostilities without obtaining a Declaration of War from Congress. However, the petition also says that in none of the prior wars did the President take the initiative to invade a sovereign nation without provocation. According to the petition, in the first half of the 19th century, the Supreme Court emphasized that the plain language of the Constitution meant that the President could not launch an all-out war in the absence of a Congressional Declaration.

The petition also notes that no federal court has ever examined the debates at the Constitutional Convention on June 1, 1787, when the decision as to the constitutional allocation of the war powers was decided, and asks the Supreme Court to at last take up the issue. Since World War II, the lower federal courts have dismissed suits challenging the President’s authority to wage war on technical procedural grounds.

The case raises fundamental issues concerning the intent of the Framers of the Constitution and the role of the Supreme Court as the ultimate interpreter of our national charter. The petition reminds the Court of the famous words of Thomas Jefferson that in Article I Section 8 of the Constitution the Framers had provided “an effectual check to the Dog of War by transferring the power of letting it loose from  Executive to Legislative body, from those are to spend to those who are to pay.”

Click here for a copy of the petition.

For more information, contact Professor Frank Askin (973-353-3239) or Bennet Zurofsky (973-642-0885).