DOJ reply brief in Smith v. Obama

The Department of Justice today filed its reply brief in the case challenging the legality of Operation Inherent Resolve (OIR), Smith v. Obama.  I don’t have much to add to what I’ve posted here before.  The government is correct that Captain Smith lacks Article III standing to challenge whether the President has violated Section 5(b) of the War Powers Resolution (see Part III of this post, Part I of this post, and also this post).  The government does not further debate the merits of whether Congress has authorized OIR (see Part I of this post, Part III of this post and most of this post).  And the government’s lead argument–that the case must be dismissed because it turns on a nonjusticiable “political question”–is still groundless, an argument that DOJ should have abandoned (see Part II of this post).

On the political question doctrine (PQD) argument, just three quick points.

i.  The government now argues that in order to resolve the purely statutory question of whether Congress has authorized OIR, the court would have to assess “the President’s military determinations and the sensitive factual and policy judgments upon which they rest,” including “the nature and extent of ISIL’s relationship with ‘those nations, organizations, or persons’ responsible for the September 11 attacks, 2001 AUMF, § 2, 115 Stat. at 224; the threat ISIL poses to U.S. national security interests in Iraq, 2002 AUMF, § 3, 116 Stat. 1498, 1501; and the President’s continuing judgment that recent military operations are ‘necessary and appropriate’ to ‘prevent any future acts of international terrorism’ by the entities subject to the AUMF, 2001 AUMF, § 2, 115 Stat. at 224, and to ‘defend the national security of the United States against the continuing threat posed by Iraq,’ 2002 AUMF, § 3, 116 Stat. at 1501.”  According to DOJ, the statutory claim is nonjusticiable because these assessments are beyond the judicial ken.

Even assuming, for the sake of argument, that the court is incapable of second-guessing such executive factual assessments (of course, it’s not–happens every day in the GTMO habeas litigation), the government’s PQD argument would still fail, because the plaintiff’s claim does not depend upon any challenge to those factual assessments.  Indeed, far as I can tell, the plaintiff basically accepts those assessments, at least for purposes of the case–e.g., that ISIL once was AQI, and spun off from al Qaeda; that ISIL poses a threat to U.S. (and Iraqi) national security interests in Iraq; and that OIR is “necessary and appropriate” to “prevent any future acts of international terrorism.”  The question for the court to decide, instead, is whether, even if those assessments are credited, Congress has authorized Operation Inherent Resolve.  And that is a question of statutory interpretation of the sort that courts adjudicate every day.

ii.  DOJ argues that this case “implicat[es] delicate questions concerning the distribution of political authority between coordinate branches.”  Even if it did, that wouldn’t be grounds for concluding that it’s nonjusticiable–see Zivotofsky.  But in any event, the case doesn’t raise any such “delicate” questions of allocated authority.  The parties agree that the WPR’s 60-day limit is constitutional and that the President would have to withdraw the troops from OIR if Congress hasn’t authorized it–i.e., that Congress has the last word.  The only merits question in the case is whether Congress has, in fact, authorized the operation–again, an ordinary question of statutory interpretation.

iii.  DOJ weirdly argues, at several places, that the case is nonjusticiable because “the challenged military operation enjoys the mutual support of both political branches,” i.e., because “Congress has expressed approval of [the President’s determination, including by appropriating billions of dollars in support of the military operation.”

As I’ve argued previously, this is a merits question, of the sort the court can resolve.  DOJ denies that — it says that whether Congress has, in some sense, “supported” or “expressed approval” of the Operation, in a way that purportedly makes the case a nonjusticiable political dispute, is a different question from whether Congress has actually authorized OIR, which would resolve the merits.  This alleged metaphysical distinction eludes me; I’ll have to leave it to Just Security readers to assess whether this is mere rhetorical gobbledegook, or whether there’s something to this “support and approval but not necessarily authorization” PQD argument.

Fortunately, Judge Kollar-Kotelly can avoid all of this PQD mess by simply resolving the case on Article III standing grounds, which is what DOJ should have emphasized all along.

  

About the Author(s)

Marty Lederman

Professor at the Georgetown University Law Center. He was Deputy Assistant Attorney General at the Office of Legal Counsel from 2009-2010, and Attorney Advisor at the Office of Legal Counsel from 1994-2002. You can follow him on Twitter (@marty_lederman).