War Powers

A Response to the Government's Brief in Capt. Smith v. Obama

By Bruce Ackerman
Tuesday, July 12, 2016, 4:48 PM

The government has just filed its brief responding to Captain Smith’s challenge to the president’s unilateral war against ISIS. The government’s lengthy brief cites more than eighty judicial decisions, but fails to mention the Steel Seizure Case – where Justice Jackson explained that, even in matters of national security, presidential power is at “its lowest ebb” when the commander-in-chief violates express Congressional statutes. This view was recently reaffirmed by the Roberts Court in another case entirely ignored by the government (Zivotofsky v. Kerry), in which the Court insisted that the president “can rely [for his authority] only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

The Justice Department’s surprising disregard of these decisions opens the path for its effort to trivialize the key provisions of the War Powers Resolution – which aimed precisely to prevent future presidents from repeating Richard Nixon’s example of ignoring Congress’ authority by unilaterally escalating the use of force in Southeast Asia.

The government’s brief also fails to cite the central case establishing Captain Smith’s standing to challenge the legality of the war against ISIS. Little v. Barreme, decided by the Marshall Court, is the source of a long standing obligation on military officers to disobey illegal commands – even at the risk of a lengthy prison term and dishonorable discharge. Once again, this great Marshall Court decision has been expressly reaffirmed in modern Supreme Court decisions which the government fails to cite, much less to analyze. (See Butz v. Economou, 438 U.S. 478, 489-90, citing Little as the foundational precedent for “the general rule, which long prevailed, that a federal official may not with impunity ignore the limitations which the controlling law has placed on his powers.” Zivotofsky v. Kerry, 135 S. Ct. 2076, 2090 (2015), with both majority and dissenting opinions affirming its foundational character.)

Our brief will bring to the Court’s attention these systematic failures to acknowledge the significance of decisive Supreme Court precedents, and urge it to follow the Court’s insistence on the rule of law and its requirement that the President gain the explicit consent of Congress, and the American people, to new wars.