The ruling also stated that the elder George Bush had not firmly committed the country to a course of action—and conflict that has not been initiated, cannot be preempted.

Suits surrounding the Vietnam War also failed to stop military action because courts ruled that, by appropriating funds and granting extensions to the draft, Congress had implicitly agreed to the action.

The first suits challenging Congress’ ability to tacitly declare war began around Vietnam, many of them brought by now-Dean of the Massachusetts School of Law Lawrence Velvel.

Velvel said the courts can throw out such cases based on standing—the eligibility of plaintiffs to bring suit in the first place—or the “political question” rationale used to dismiss Bonifaz’ suit.

Based on past experience, Velvel said he believes that Bonifaz’s appeal has little chance of succeeding.

“He’s going to lose,” said Velvel. “They [the courts] manipulate labels to reach the results they wish to reach. They absolutely do not wish to decide whether the president has the power to wage a war. The major question is are they willing to undertake to decide what the Constitution requires—and the answer is no.”

The Next Step

Bonifaz said that he intended to file an immediate appeal to the U.S. Court of Appeals for the First Circuit.

“This decision has no basis whatsoever in the Framers’ intent and no support whatsoever in the case law,” he said.

When asked on what specific grounds he’d appeal his case, Bonifaz responded, “All of them. We totally reject the doctrine applied today.”

“We’re appealing to Article 1, Sect. 8 of the U.S. Constitution. Courts have a duty to intervene, and this is not a political question,” he said, citing several other contentious cases, like redistricting, poll taxes and desegregation, that have been tackled by courts.

“They’re not supposed to sideline,” Bonifaz said. “Courts cannot shirk from responsibility when it looks like a political battle.”