As I noted in an earlier post, Nathan Smith, a U.S. Army captain deployed to Kuwait as part of the campaign against ISIL, Operation Inherent Resolve, has sued the President, seeking a declaration that Congress has not authorized the hostilities in Iraq and Syria and that therefore the War Powers Resolution requires the President to remove U.S. forces from hostilities in those nations.

On Tuesday, the Department of Justice filed a motion to dismiss the case. Its brief in support of the motion includes one argument that I think is correct (albeit not for all the reasons the government offers) — namely, that Smith lacks standing to sue. That ought to be sufficient to have the case dismissed. The brief also includes an argument on the merits (albeit not designated as such) that is very interesting and potentially important — an account of how Congress has allegedly authorized Inherent Resolve in three ways: (i) in the 2001 AUMF; (ii) in the 2002 AUMF; and (iii) in current appropriations statutes. The heart of the brief, however, is devoted to a third argument — that Judge Koller-Kotelly must dismiss the case on the basis of the political question doctrine — that is not only wrong, but that simply ignores the Supreme Court’s recent (and repeated) repudiation of that very argument.

1. Standing

On page 39 of its 45-page brief, the government finally gets around to the reason why the court should dismiss the complaint: Smith lacks standing.

Importantly, Smith’s theory of standing is not that he — an Army captain deployed to perform intelligence services in Kuwait — is more likely to be injured or killed by virtue of the President’s decision to deploy troops into hostilities in Iraq and Syria. It is, instead, that the President’s alleged failure to comply with the War Powers Act results in Captain Smith’s own violation of his officer’s oath to “support and defend” the Constitution “against all enemies, foreign and domestic,” and to “bear true faith and allegiance” to the Constitution.

The government’s standing argument begins (p. 35) by suggesting that “[p]laintiff’s claim that he is being forced to betray his oath is insufficient to establish standing because the violation of an oath, by itself, is not an injury in fact.” The cases the government cites for that proposition, however, do not say that a forced oath violation would not be an injury in fact — and that’s not a question the judge needs to resolve. What the cases establish, instead, is the point the government finally argues at page 39 — namely, that a government officer does not violate his oath by complying with superiors’ orders, even if it turns out that the law prohibits the military operation in which those orders are issued. Indeed, Smith would not violate his oath of office even if his superiors’ orders themselves were unauthorized, or if the intelligence activities he is ordered to performed were unauthorized. But he does not allege even those things (as I discuss below, he does not, for instance, alleged that he is being ordered to do anything unlawful). Instead, he merely argues that because President Obama should have withdrawn troops from Syria and Iraq 60 days after their deployment, Smith himself is violating his oath to “bear true faith and allegiance to the Constitution.” This is a non sequitur: Even if Smith is right that the continuation of Operation Inherent Resolve is unlawful, that would not mean that he is acting in violation of his oath. (Much more on this in my earlier post.) And that simple fact is reason enough for Judge Koller-Kotelly to dismiss the case.

One of Smith’s counsel, Professor Bruce Ackerman, argues that this reason for rejecting the oath-based theory of standing ignores the Supreme Court’s 1804 decision in Little v. Barreme. Little, however, is not on point. In that case, Navy Captain Little was sued by the owners of a Danish ship for damages caused when Little seized that neutral ship. The Court held that Little could be liable, notwithstanding the fact that he was following orders, because the capture violated a implicit statutory prohibition on the military’s seizure of ships sailing from France to the United States. In this case, however, Captain Smith has not argued — nor could he — that he has been ordered to do anything unlawful (in violation of a statute), let alone that he has been ordered to do something that would subject him to possible liability for damages. He is, instead, arguing that President Obama violated a statute. That is not enough to establish Smith’s standing to sue.

2. The Political Question Doctrine

The government’s main argument, to which it devotes far too many pages, is that the judge must dismiss the case because it raises a “political question” that courts cannot answer. This is flatly wrong — and it ignores several controlling precedents, including the Supreme Court’s recent 8-1 rejection of virtually the same government argument in Zivotofsky v. Clinton.

The thrust of DOJ’s argument is that “the political question doctrine bars judicial review of suits challenging the President’s decision to use military force, at least where, as here, Congress has approved the President’s actions.” This puts the cart before the horse, however: The only real merits question in this suit is whether Congress has approved the President’s actions.

It’s very important to make crystal clear what the nature of the claim and the defense are here. The government, notably and correctly, does not argue either that the President has constitutional authority to act independently here, or that the 60-day clock of the WPR is unconstitutional. The parties thus effectively agree that if Congress has not authorized Operation Inherent Resolve, the President would be required, under section 5(b) of the WPR, to withdraw troops from hostilities in Iraq and Syria, unless and until Congress authorizes the operation. The merits of the case turn therefore entirely on questions of statutory interpretation — namely, whether the 2001 AUMF and/or the 2002 AUMF and/or current appropriations statutes, authorize Inherent Resolve. (For this reason, Professor Ackerman is wrong to suggest that Youngstown is apposite here. If this is not a “Category One” case in which Congress has authorized the action, the parties agree that the President would have to comply with the statute.)

In support of its nominal “political question” argument, DOJ goes to lengths to explain the ways in which Congress allegedly has authorized Operation Inherent Resolve (see pages 4-14, 25-30; see also point 3, below). That, however, is a merits argument. If DOJ is right about it, it wins on the merits (or it would do so if Smith had standing, anyway); but that doesn’t mean that the case is nonjusticiable. The dispute here presents a “purely legal question of statutory interpretation”–namely, whether Congress approved the operation against ISIL in the 2001 AUMF and/or the 2002 AUMF and/or a more recent appropriations statute (see discussion below)–which “calls for applying no more than the traditional rules of statutory construction.” Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 (1986). As the Supreme Court explained in rejecting a similar “political question” argument, “interpreting congressional legislation is a recurring and accepted task for the federal courts” — indeed, “one of the Judiciary’s characteristic roles.” Id.

In the recent Zivotofsky v. Clinton case, the Court once again rejected the government’s conflation of the merits of a dispute with the separate inquiry into whether the dispute raises a nonjusticiable “political” question. The plaintiff there, who was born in Jerusalem, complained that the State Department had failed to comply with a statute requiring the Secretary to designate the plaintiff’s place of birth as “Israel.” The government argued — and the D.C. Circuit agreed (Judge Edwards dissenting) — that the constitutionality of that statute was a nonjusticiable “political question,” primarily because the Constitution had assigned the “recognition” power exclusively to the President.

As Chief Justice Roberts explained in his opinion for the Court, the government and D.C. Circuit erred in “treat[ing] the two questions [PQD and the merits] as one and the same.” Indeed, recitation of the parties’ arguments, ostensibly on the PQD, “sound[ed] in familiar principles of constitutional interpretation,” which was enough, wrote the Chief Justice, “to establish that this case does not ‘turn on standards that defy judicial application.’” The case simply required the judiciary to “decide if Zivotofsky’s interpretation of the statute is correct, and whether the statute is constitutional. This is a familiar judicial exercise.” Therefore it was not barred by the political question doctrine, and the courts proceeded to adjudicate the merits, on which the government ultimately prevailed.

Inexplicably, the government’s brief in Smith does not even cite, let alone contend with, the Court’s decisions in cases such as Japan Whaling Ass’n and Zivotofsky. DOJ has, in effect, made the mistake of once again leading with the same argument that the Court has repudiated time and again — once very recently. What’s (almost) worse is that the government heavily relies upon a pair of 1971 cases in which courts of appeals dismissed challenges to the Vietnam War on the merits, and either implicitly or (in one case) expressly rejected the government’s political question doctrine argument. See Orlando v. Laird, 443 F.2d 1039, 1042 (2d Cir. 1971) (“[T]he constitutional delegation of the war-declaring power to the Congress contains a discoverable and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war. Judicial scrutiny of that duty, therefore, is not foreclosed by the political question doctrine. As we see it, the test is whether there is any action by the Congress sufficient to authorize or ratify the military activity in question. The evidentiary materials produced at the hearings in the district court clearly disclose that this test is satisfied.”); Massachusetts v. Laird, 451 F.2d 26, 34 (1st Cir. 1971) (“All we hold here is that in a situation of prolonged but undeclared hostilities, where the executive continues to act not only in the absence of any conflicting Congressional claim of authority but with steady Congressional support, the Constitution has not been breached. The war in Vietnam is a product of the jointly supportive actions of the two branches to whom the congeries of the war powers have been committed.”)

The D.C. Circuit appears to have taken heed of Zivotofsky’s course correction of that court’s previous, aggressive, PQD doctrine — see, e.g., this decision and this one. DOJ should, too. It should abandon its misguided “political question” argument and, if it doesn’t, Judge Koller-Kotelly should either reject it or simply dismiss the case on standing grounds without reaching the PQD argument.

3. The Merits

The most interesting thing about the government’s brief — and by far the most important aspect of it, for public purposes apart from the lawsuit itself — is that, in the section ostensibly arguing that the case is nonjusticiable (see pp. 25-30, and also pp. 4-14), DOJ actually offers the Executive branch’s most detailed defense yet about why Operation Inherent Resolve is congressionally authorized. As some of us predicted, the government relies on three arguable authorizations, any one of which would be sufficient to defeat Smith’s WPR claim if the courts were to reach the merits. In this post I’m not going to assess the merits of the three arguments. For now, my purpose is only to describe them, and to raise one issue with respect to the third.

i. First, the government argues that the 2001 AUMF authorizes the operation against ISIL. Quoting extensively from DoD General Counsel Steve Preston’s 2015 speech, the brief explains:

The 2001 AUMF has authorized the use of force against ISIL beginning in at least 2004, when ISIL, then known as al Qaeda in Iraq (“AQI”), joined bin Laden’s al Qaeda organization in its conflict against the United States. AQI had a direct relationship with bin Laden, and waged that conflict in allegiance to him while he was alive. ISIL continues to plot and carry out attacks against the United States and specifically continues “to denounce the United States as its enemy and to target U.S. citizens and interests.” For those reasons, the Executive Branch has concluded that ISIL’s recent disagreements with and split from the current al Qaeda leadership does not remove it from coverage by the 2001 AUMF: the enemy cannot “control the scope of the AUMF by splintering into rival factions while continuing to prosecute the same conflict against the United States . . . . The name may have changed, but the group we call ISIL today has been an enemy of the United States within the scope of the 2001 AUMF continuously since at least 2004.”

ii. Second, the government argues that the 2002 AUMF also authorizes Operation Inherent Resolve, just as it authorized operations in Iraq against AQI (which became ISIL) from 2003 to 2011, after the Hussain regime fell. Again quoting Preston, the government explains:

The 2002 AUMF, also cited by the President as legislative authority for targeting ISIL in his letter of September 23, 2014, authorizes the President to “use the Armed Forces of the United States as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq.” Pub. L. No. 107-243, § 3, 116 Stat. at 1501. The 2002 AUMF reinforces the President’s authority to use military force against ISIL. The Executive Branch has explained that, “[a]lthough the threat posed by Saddam Hussein’s regime in Iraq was the primary focus of the 2002 AUMF, the statute, in accordance with its express goals, has always been understood to authorize the use of force for the related purposes of helping to establish a stable, democratic Iraq and addressing terrorist threats emanating from Iraq.” Even after Saddam Hussein’s regime fell in 2003, the United States “continued to take military action in Iraq under the 2002 AUMF,” “including action against AQI, which then, as now, posed a terrorist threat to the United States and its partners and undermined stability and democracy in Iraq.” Congress ratified this understanding of the 2002 AUMF by appropriating billions of dollars to support continued military operations in Iraq between 2003 and 2011. Accordingly, the Executive Branch has concluded that the “2002 AUMF authorizes military operations against ISIL in Iraq and, to the extent necessary to achieve these purposes, in Syria.”

iii. Finally, and most interestingly (in part because the government has not previously made this argument), DOJ argues that a recent “unbroken stream” of appropriations statutes not only confirm the authorities allegedly conferred by the 2001 and 2002 AUMFs, but also offer their own, independent congressional authorization.

Most importantly for present purposes, the government points to the 2016 Consolidated Appropriations Act. In February 2015, in his proposed budget for fiscal year 2016, the President requested $5.3 billion in appropriations to conduct specific military activities in connection with Operation Inherent Resolve — including to pay for personnel, and for operation and maintenance activities. One week later, Congress passed the appropriations measure, which, according to the government, appropriated $5 billion of the $5.3 billion that the President had requested. [The government brief does not cite a particular provision of the Act in support of this claim, but perhaps it means to refer to page 142 of the Act, which appears to appropriate $5,665,633,000 “for Operation and Maintenance, Defense-Wide,” of which up to $1,160,000,000 “shall be for payments to reimburse key cooperating nations for logistical, military, and other support, including access, provided to United States military and stability operations in Afghanistan and to counter the Islamic State of Iraq and the Levant.” I’m not sure how that amounts to $5 billion.] The Explanatory Statement for the Act also highlights the threat posed by the “rise of [ISIL],” and notes (at page 289) that the Act “moves funding from the base appropriation to the [overseas contingency operations] appropriation to provide additional funding for the Army, Navy, Marine Corps, and Air Force” in order to “conduct counter-ISIL operations,” among other things. That page also states that the bill “provides the military and Intelligence Community sufficient resources to support ongoing operations and the flexibility to respond to future unknown crises,” immediately after referring to the threats from ISIL.

Two things are fairly clear from this: The members of Congress approve of Operation Inherent Resolve — indeed, there’s virtually no opposition. And Congress has (most likely) appropriated funds to pay for it. The operative question, however, is whether Congress’s appropriations also serve as an authorization that would supersede the requirement of WPR section 5(b).

The government brief alludes to one important argument that the plaintiff will undoubtedly raise: Section 8(a)(1) of the WPR provides that, for purposes of tolling the 60-day clock of section 5(b), “[a]uthority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred (1) from any provision of law . . . including any provision contained in any appropriations Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and states that it is intended to constitute specific statutory authorization within the meaning of this chapter.” Obviously, the 2016 Act does not satisfy that requirement. Is that fatal to the appropriations-as-authorization argument?

As the Office of Legal Counsel explained in connection with its analysis of how appropriations acts might affect the WPR analysis as to the 1999 operation in Kosovo, section 8(a)(1) cannot be read to bind future Congresses to the use of particular language in order to authorize military activities; “it is the intent of the subsequent Congress, as evidenced by the text and legislative history of the appropriation statute” that governs. (DOJ makes a similar point in footnote 8 of its brief.) Even so, OLC explained that section 8(a)(1) “continues to have operative legal effect,” in that it creates a “background principle” that informs how one should construe appropriation enactments of subsequent Congresses that do not specifically reference the WPR: “If the appropriation statute is entirely ambiguous as to whether it constitutes authorization for continuing hostilities, for example, it might be proper for a judicial or executive branch actor to conclude that, because the subsequent Congress was aware of the background principle established by section 8(a)(1), its failure to refer specifically back to the WPR evidences an intent not to authorize continuing hostilities.”

On the other hand, if, in enacting an appropriation statute, Congress “demonstrates a clear intent to authorize continuing hostilities, then it would be appropriate to conclude that the appropriation statute does authorize those hostilities, even though the statute does not specifically refer back to the WPR. Under these circumstances, the appropriation statute would supersede or work an implied partial repeal of section 8(a)(1).”

The pertinent question, then, is whether the 2016 Consolidated Appropriations Act, in light of its entire context, evinces a clear congressional intent to authorize Operation Inherent Resolve, notwithstanding the War Powers Resolution, in which case such authorization would supersede the 60-day limitation of the WPR. The DOJ argues that a “strong case” can be made “that the appropriations constitute independent authorization of the particular counter-ISIL military activities they funded, because they ‘plainly show[] a purpose to bestow the precise authority’ which the President claims to exercise” (quoting Ex parte Mitsuye Endo, 323 U.S. 283, 303 n.24 (1944)).

I do not yet know enough about the recent appropriations laws to opine on whether the government is right that there is such a clear intent. I’d only flag one complication. As the brief acknowledges, two provisions of the 2016 Act (§§ 8122, 9019) provide (as did similar provisions of the 2015 Act) that:

None of the funds made available by this Act may be used with respect to Iraq in contravention of the War Powers Resolution (50 U.S.C. 1541 et seq.), including for the introduction of United States armed forces into hostilities in Iraq [or Syria, per section 9019], into situations in Iraq [or Syria] where imminent involvement in hostilities is clearly indicated by the circumstances, or into Iraqi [or Syrian] territory, airspace, or waters while equipped for combat, in contravention of the congressional consultation and reporting requirements of sections 3 and 4 of such Resolution (50 U.S.C. 1542 and 1543).

These provisions might be read simply to convey that the executive must continue to comply with the consultation and reporting requirements of WPR sections 3 and 4, even after the 2016 Act authorizes the introduction of troops into hostilities in Iraq and Syria. Or they might alternatively be construed to also specify that the Act is not providing the authority that section 5(b) of the WPR calls for.

Not surprisingly, DOJ argues for the former view (pp. 27-28 of the brief): “[I]n the few provisions in which Congress did reference the War Powers Resolution, to clarify that no funds made available for Operation Inherent Resolve are to be used ‘in contravention’ of the Resolution, Congress signaled its agreement that the President’s counter-ISIL military actions were authorized by simultaneously funding Operation Inherent Resolve. If Congress believed that the United States had been conducting airstrikes and other counter-ISIL military activities ‘in contravention of the War Powers Resolution,’ it would have made no sense for Congress to use the ‘in contravention’ proviso in the same laws that make funds available for the express purpose of continuing those military activities.”

That’s not a bad argument, at least at first glance; but it’s not a slam-dunk, either, in part because appropriations provisions do not necessarily establish authorizations. It’ll be interesting to see how Captain Smith’s lawyers respond to this particular aspect of the merits argument. I doubt Judge Koller-Kotelly will reach it, however, because she is likely to dismiss the case for want of standing.