Last week, Army Captain Nathan Michael Smith filed a federal court suit against President Obama, seeking a declaration that the War Powers Resolution requires the President to remove troops from hostilities against ISIL in Iraq and Syria unless and until Congress authorizes such hostilities.
Over at Lawfare, Jack Goldsmith writes that Smith v. Obama is a “big deal to the extent it provides a possible vehicle for a court to adjudge the legality of [President] Obama’s interpretation” of statutes that are said to authorize the hostilities against ISIL. But he doesn’t think the courts will sustain Smith’s challenge. Jack assumes for the sake of argument that Smith has standing to sue; even so, Jack suggests that the suit might still be dismissed on “political question” grounds; and, in any event, he opines that “[i]f the judiciary does reach the merits of the lawsuit,” the “much more likely outcome is that it would affirm the President’s authority” to direct the troops to fight ISIL.
For reasons I’ll describe briefly below, I think Jack is probably correct that if the courts were to reach the merits, they would conclude that Congress has authorized Operation Inherent Resolve. Like Jack, however, I doubt the courts will reach the merits, not because the suit raises a political question — it doesn’t — but because Captain Smith lacks standing to sue for the declaration he is seeking.
The Merits
The President introduced U.S. forces into hostilities against ISIL in Iraq and in Syria in the latter half of 2014. The gist of Captain Smith’s argument is that Section 5(b) of the War Powers Resolution (WPR) required the President to withdraw those troops from hostilities 90 days later — an obligation that continues to this day — because Congress had not, and still has not, authorized those hostilities. The President, of course, insists that Congress has authorized the troops’ use of force against ISIL, which, if correct, would mean that the requirement of the WPR is satisfied.
Like Jack, I think that if the courts reached the merits, they would likely conclude that Congress has authorized the military’s actions against ISIL, even if some judges were dubious about the government’s argument that the 2001 AUMF provides such authorization. The strongest legal basis for such a conclusion might be the 2002 Iraq AUMF, although my theory of that authority, summarized in a footnote below, is slightly different from Jack’s.[1] It might also be the case, as Jack has suggested, that Congress has authorized Operation Inherent Resolve by appropriating funds that are “directly and conspicuously focused on [that] specific military action.” (I have not studied all of the possibly relevant appropriations statutes to offer any firm view on the question.)
Whatever the theory, it is probably safe to assume that Judge Koller-Kotelly, and any appellate judges considering the case, would not be especially sympathetic to Smith’s WPR argument in this particular setting. This is not a case, like the late stages of the Vietnam War, the Kosovo operation in 1999, or the war in Libya in 2011, in which there is significant opposition in one or both houses of Congress to the President’s employment of U.S. forces. As far as I know, every member of Congress supports the use of U.S. military force against ISIL (including in Syria). And even those members of Congress who have questioned the Administration’s readings of the 2001 and 2002 AUMFs have not argued that the President should withdraw the troops, which is what the law would require if there were no statutory authorization for the operation against ISIL. The only real dispute among legislators is about whether the President is being sufficiently belligerent: The principal reason Congress has not been able to reach a consensus on an ISIL-specific AUMF is because many Republican members of Congress resist imposing the statutory limits that the President has proposed or supported. Accordingly, the principal objective of the WPR — to prevent the President from getting the U.S. embroiled in a long-term military conflict without having persuaded Congress and the public of the wisdom of that endeavor — is inapposite in this case.[2]
In any event, for reasons I explain below, the courts won’t reach the merits.
The Political Question Doctrine
The case does not present a “political question” that precludes adjudication. Captain Smith’s claim turns on a standard (if perhaps difficult) question of statutory interpretation: Has Congress authorized Operation Inherent Resolve, or not? As the Chief Justice explained in Zivotofsky v. Clinton, deciding whether Smith’s or the President’s interpretation of the relevant statutes is correct “is a familiar judicial exercise.”
Article III Standing
The reason the courts will not reach the merits of the lawsuit is not that its adjudication depends upon a political question (it doesn’t), but that Captain Smith has not suffered an injury-in-fact by virtue of the President’s actions — let alone an injury that would be remedied by the declaration he seeks.
If Captain Smith had been deployed to Iraq or Syria to fight against ISIL, he might well have standing to challenge the legality of Operation Inherent Resolve — at least if there were a serious likelihood he would be harmed or required to inflict harm against his will — because an injunction requiring withdrawal of the troops could remove Smith from harm’s way. There are Vietnam-War-era cases supporting such a theory of standing.[3] That theory, however, is not available here, for two reasons. First, Smith does not want Operation Inherent Resolve to end, or to be relieved of duties relating to it: He believes that the operation “is justified both militarily and morally,” and his participation in it “is what I signed up to be part of when I joined the military.”
Second, and more importantly, Smith has not been ordered to fight ISIL, or otherwise be placed in harm’s way, in Iraq or Syria. Instead, Captain Smith has been deployed to Kuwait as an intelligence officer at Camp Arifjan, where he works in the headquarters of the commander of Combined Joint Task Force-Operation Inherent Resolve. Presumably, Captain Smith provides intelligence services that support Operation Inherent Resolve, although the complaint does not offer any specifics regarding his duties. He has not alleged any significant risk of being killed or wounded by virtue of Operation Inherent Resolve, nor that he is required to use force against others against his will.
So what is his alleged injury?
He claims that the President’s failure to comply with the WPR prevents him from “honor[ing]” the oath he took, when he became a commissioned officer in 2010, to (allegedly) “‘preserve, protect, and defend’ the Constitution of the United States.’”
In fact, that’s not the oath Smith took upon becoming an officer. The officer’s oath does not use the verbs “preserve” and “protect” — instead, it states that the officer will “support and defend” the Constitution, and it specifies the particular context for this “support and defend” obligation, namely, “against all enemies, foreign and domestic.” Obviously, nothing the President has done prevents Smith from endeavoring to defend the Constitution against foreign enemies such as ISIL, nor does Smith allege otherwise. However, the officer’s oath also commits Smith to “bear true faith and allegiance” to the Constitution — a point not mentioned in Smith’s complaint. For purposes of this post, I’ll (generously) assume that Smith’s claim is that the President has prevented him from “bear[ing] true faith and allegiance” to the Constitution.
It is an interesting question—one that I won’t wade into deeply here — whether and when an officer of the United States has Article III standing to challenge action by a superior (such as an order) that prevents the officer from honoring his oath to “bear true faith and allegiance” to the Constitution. But even if that were a viable theory of standing in other circumstances, Smith has not alleged facts remotely sufficient to support it here.
Smith’s theory of injury presumably depends (at a minimum) on the notion that, by virtue of the President’s failure to withdraw troops from Operation Inherent Resolve, as the WPR allegedly requires, Smith himself is being ordered to violate the law — which, in turn, allegedly compels him to violate his oath of office. But Smith has not alleged that he has been ordered or otherwise required to do anything unlawful. To be sure, we can infer from his complaint that Captain Smith has a duty to provide intelligence in support of Operation Inherent Resolve; but such intelligence activities would not be unlawful, even if Smith were right about the WPR question.
Moreover, even if Smith had been ordered to do something that was rendered unlawful by virtue of the President’s (alleged) violation of the WPR — again, something he has not alleged — his compliance with such orders would not violate his oath. Officers of the federal government take many actions every day, in compliance with instructions of their superiors, or with extant regulations, that might turn out to be unlawful. In those cases — for example, when a court declares that certain government conduct violated a statute or was ultra vires, or even that the government action was itself unconstitutional — it does not follow that the officers in all such cases have thereby violated their oaths to “bear true faith and allegiance” to the Constitution.
Indeed, in some such cases, the officers in question might themselves believe that their superiors are mistaken about the law, and that the conduct they are undertaking is unlawful — a not-uncommon occurrence in an executive branch as large as ours. Even in those cases, the oath does not require such officers to follow their own view of the law, and thus to disobey their orders, in every such case. One does not fail to “bear true faith and allegiance” to the Constitution by complying with a superior’s view of the relevant law, at least in cases where government officials of good faith might disagree about the merits of that legal conclusion.[4]
To be sure, if a military officer is ordered to commit a crime, and is later prosecuted for it, “following orders” would not be a defense to culpability if a person “of ordinary sense and understanding would, under the circumstances,” would have known that the ordered conduct was unlawful (that was the holding in Lieutenant Calley’s case). Not surprisingly, Smith does not allege that he has been ordered to commit a crime, let alone to engage in any action that a person of ordinary sense and understanding would, under the circumstances, know to be unlawful. Moreover, even if this were such a case — and again, Smith does not allege that it is — such a manifest violation of law could subject the person to possible criminal sanctions, but it would not be a violation of the Constitution, nor would it mean that the officer had violated his oath to “bear true faith and allegiance” to the Constitution. (Violation of a statute is not a breach of that oath.)
Accordingly, Smith has not alleged facts sufficient to make out a claim that the President has prevented him from honoring his oath of office, and therefore he lacks Article III standing to sue, regardless of the merits of his WPR claim.
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[1] To be sure, the 2002 AUMF authorized the use of necessary and appropriate force “in order to . . . defend the national security of the United States against the continuing threat posed by Iraq”; and any such threat posed by Iraq presumably ended, at the latest, when the Ba’athist regime was defeated in 2003. Even so, the United States military continued its combat mission in Iraq to protect Iraq against attacks from al Qaeda in Iraq (AQI) until troops were withdrawn from Iraq in late 2011. What was the legal basis for those eight or so years of fighting after the original objective of the AUMF was realized? Presumably, it was that the 2002 AUMF, like most such statutory authorizations, contains an implicit, ancillary authority to use force to address threats to the peace that emerge by virtue of the original (authorized) hostilities — threats that might undermine the achieved objectives: The statutory authority does not turn into a pumpkin and require immediate withdrawal of troops the moment the objectives of the use of force are met, regardless of what might transpire in the wake of such a withdrawal.
To put the point simply, the United States used force in Iraq under the 2002 AUMF to oust a particular regime, and then, in order to protect the new government we had helped to install, and to protect the people of the state where we had fought, we had a responsibility to help the new government fend off the AQI insurgency, which was fairly viewed as a “by-product” of the initial conflict. As far as I know, between 2003 and 2011, no one seriously questioned whether Congress’s authority extended to the use of force to help Iraq defend against the “post-war” insurgency — because everyone reasonably concluded that it did. So, too, the government’s argument would run, that same implicit authority continues to apply now, to empower the military to continue to defend Iraq from the attacks of the same insurgent force that resumed after the U.S. withdrawal, even though AQI has transmogrified into ISIL. If ISIL’s threat to destabilize or conquer Iraq is fairly viewed as a residuum of the war we fought there, it is not unreasonable to construe the 2002 AUMF to authorize the U.S. to help stabilize the situation in Iraq by using force to degrade ISIL’s ability to attack Iraq.
[2] Captain Smith’s complaint also alleges that the President is violating the Take Care Clause. For the reasons I’ve explained with respect to a similar “Take Care” claim in the current DAPA litigation brought by Texas, this argument is frivolous: The case is simply a standard-issue dispute about the scope of statutory authority. If President Obama were wrong about the scope of the authority Congress has conferred, that wouldn’t mean that he had violated his duty to take care that the law be faithfully executed.
[3] See Berk v. Laird, 429 F.2d 302, 306 (2d Cir. 1970) (private who was to be dispatched to South Vietnam could sue to challenge the legality of the war there); Holtzman v. Schlesinger, 484 F.2d 1307, 1315 (2d Cir. 1973) (“In Berk . . . we held that a serviceman does have standing if he is under orders to fight in the combat to which he objects.”).
[4] It is true that in the rare case (unlike this one) where a military officer decides to disobey an order that he considers to be unlawful, he cannot be convicted of insubordination under 10 U.S.C. 892 if he persuades the court that the order was unlawful. See United States v. New, 55 M.J. 95, 106 (CAAF 2001). It does not follow, however, that all officers of the United States, civil and military, have standing to ask federal courts to adjudicate ex ante the lawfulness of every order they receive before they decide whether to comply with them — a prospect that would threaten to fundamentally transform the operation of the Executive branch.