War Powers

Analysis of Lawsuit Challenging War Against ISIL

By Jack Goldsmith
Wednesday, May 4, 2016, 1:03 PM

Charlie Savage reports that Captain Nathan Michael Smith, an army intelligence officer deployed in Kuwait, has brought a lawsuit challenging President Obama’s interpretive extension of the 2001 AUMF in response to 9/11 the Islamic State. The complaint argues that the President’s use of force against the Islamic State exceeded his authority under Article II, the 2001 AUMF, and the 2002 Iraq AUMF. It further argues that the use of force against the Islamic State violates (1) the War Powers Resolution, because the force constitutes “hostilities” for longer than 60 days without congressional authorization, and (2) Article II’s Take Care Clause, because the President did not publish a “sustained legal justification” for the use of force against the Islamic State.

The lawsuit is a big deal to the extent that it provides a possible vehicle for a court to adjudge the legality of Obama’s interpretation. One consequence of Obama’s decision not to detain captured Islamic State soldiers in GTMO is that the habeas corpus vehicle for challenging the legality of the war against the Islamic State has been shut off. This lawsuit provides another possible vehicle. (It is probably no accident that one of Captain Smith's attorneys is prominent GTMO attorney David Remes.)

However, I am skeptical that the lawsuit will succeed. Assuming that this plaintiff has standing, the political question doctrine—even after Zivotofsky I—still stands as a possible hurdle. And even if the court reaches the merits, it will almost certainly rule for the President on some combination of three grounds. The court might agree with the President’s interpretation of the 2001 AUMF. (See pages 5-6 of this speech by Stephen Preston for the administration’s full view.) It might rule (as I argued here) that the 2002 Iraq AUMF authorizes the President to use force against the Islamic State in Iraq and Syria. And it might rule (as I argued here) that Congress has authorized force against the Islamic State via appropriations for conflict.

It appears that one of the lawsuit’s aims is to spur Congress to get involved in explicitly authorizing the war against the Islamic State. “We want to get this back on the agenda,” says another of Captain Smith’s attorneys, Yale Law Professor Bruce Ackerman. Savage says that Ackerman called “the precedent Mr. Obama is setting a ‘turning point’ for whether constitutional checks and balances on a president’s ability to initiate a new war at his own discretion will survive.” Savage cites Ackerman’s earlier article inviting this type of lawsuit, where Ackerman said:

Decisive judicial intervention would not lead to a head-on confrontation with the White House. The [Supreme] Court would simply rule that Mr. Obama has misconstrued the War Powers Resolution, and that the sitting president—probably Obama’s successor—must obtain Congressional approval if he wants to continue hostilities after the 60-day deadline. This would force the issue to the top of the legislative agenda, and require all sides to hammer out the terms of battle for the next commander-in-chief—redeeming the Founders’ vision for a new century.

Perhaps. But I seriously doubt matters will turn out this way. Savage quotes me for the obvious proposition that “it would be a lot better for everyone, including the president, if Congress got more involved.” But as I have also explained, Congress is unlikely to get more involved, for two reasons. First, it cannot agree on whether to give the President more or less authority against the Islamic State than he has sought. And second, though Congress broadly supports the conflict against the Islamic State, it has little incentive to vote on an express authorization because the President has already claimed he has the legal authority for the conflict.

Perhaps Captain Smith’s lawsuit will change Congress’s incentives, but it is hard to see how it does so absent a very unlikely ruling on the merits that the President lacks the authority to use force against the Islamic State. If the judiciary does reach the merits of the lawsuit, a much more likely outcome is that it would affirm the President’s authority through some combination of the three arguments outlined above. If that happens, a lawsuit that sought to enliven Congress’s war powers role would have the opposite effect of deadening it by endorsing the President’s unilateral extension of the war to the Islamic State.