As expected, Judge Kollar-Kotelly has granted the government’s motion to dismiss Captain Smith’s suit challenging the legality of Operation Inherent Resolve.  Importantly, the judge does not decide anything one way or the other about the merits of the suit, i.e., about whether President Obama’s continuing prosecution of Operation Inherent Resolve violates the War Powers Resolution.  Nevertheless, she dismissed the suit on two separate and independent grounds.  She’s right about one, but not the other.

First, Judge Kollar-Kotelly concluded that Captain Smith lacks standing to sue because he is not injured in any way distinct from the “generalized” injury all of us suffer if and when the government acts in violation of a statute.  I think this is correct under current standing law, for reasons I expressed in Part III of this post, Part I of this post, and in this post.  The judge largely adopts those reasons, and explains, in particular, that even assuming arguendo that President Obama violates the War Powers Resolution by prosecuting Operation Inherent Resolve (allegedly) without statutory authorization, that would in no way require Captain Smith to violate his oath of office.

That Article III holding would be enough to resolve the case, but Judge Kollar-Kotelly then proceeds to hold, in the alternative, that the case raises nonjusticiable “political questions.”  I think she’s wrong about that, for the reasons I discussed in Part II of this post, and in this post.  She offers three reasons to think the PQD requires dismissal, but I don’t think they do the work she suggests.  In brief:

i.  First, Judge Kollar-Kotelly notes that both the 2001 and 2002 AUMFs authorize only such force that the President determines is “necessary and appropriate” to achieve certain specified ends, and, she reasons, “[t]he necessity and appropriateness of military action is precisely the type of discretionary military determination that is committed to the political branches and which the Court has no judicially manageable standards to adjudicate.”  There are two problems with this reasoning.  First, Captain Smith does not challenge whether the use of force is “necessary and appropriate”–his complaint is instead that ISIL is not a group against which the AUMF authorizes force at all, “necessary and appropriate” or otherwise.  Moreover, even if the case did require the court to to assess whether the force is “necessary and appropriate,” and even if the judge is right that that is a “discretionary military determination,” that would simply mean the government should win on the merits, because of the deference owed to the President and the military, not that the case is nonjusticiable.  

ii.  Second, the judge reasons that the case raises further specific “factual questions that are not of a type the Court is equipped to handle with traditional judicially manageable standards”–such as whether “despite public rifts, some allegiances between [al Qaeda and ISIL] persist” and whether “ISIL continues to pursue the same mission today as it did before allegedly splintering from al Qaeda.”  I don’t think the first question is in dispute, however:  the government does not rely on a theory that the two groups remain in cahoots with one another.  And as for the second factual question, the court does not need to resolve it:  Captain Smith argues that the Operation is not authorized by statute even if the government’s claim about ISIL’s mission is correct.  As I wrote earlier:  “As far as I can tell, the plaintiff basically accepts [the government’s factual] 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.”

But even if the court did need to resolve factual questions about ISIL’s mission, and even if the answers to such questions would depend on what the judge calls “inquiries into sensitive military determinations, presumably made based on intelligence collected on the ground in a live theatre of combat, and potentially changing and developing on an ongoing basis,” once again, that would simply mean, at most, that the court should defer to the President’s assessment on the merits–not that the question is nonjusticiable.  The court could simply accept the President’s view of ISIL’s mission and then determine whether, if that assessment is correct, the 2001 and 2002 AUMFs authorize the Operation.

iii. Finally, Judge Kollar-Kotelly relies on the fact that the current Congress appears to approve of Operation Inherent Resolve–Congress “has repeatedly provided funding for the effort against ISIL”–and does not appear to have rejected the President’s understanding of authorization under the two earlier AUMFs.  “[J]udicial intervention into military affairs is particularly inappropriate,” she reasons, “when the two political branches to whom war-making powers are committed are not in dispute as to the military action at issue.”

This is a strange rationale.  Judge Kollar-Kotelly is absolutely right about the current posture of Congress.  And thus, if the nature of Captain Smith’s complaint were that there’s a “dispute” between the President and the current Congress on the appropriateness of Operation Inherent Resolve, then Judge Kollar-Kotelly’s reasoning would be grounds for ruling for the government, albeit on the merits.  But that isn’t the nature of Smith’s claim.  He argues, instead, that Operation Inherent Resolve violates Section 5(b) of the War Powers Resolution–a 1973 statute–unless and until the current Congress enacts a specific authorization.  The fact that there’s no current interbranch dispute is simply inapposite to that legal question.  (To be clear:  The government has argued that recent appropriations enactments provide authorization for Inherent Resolve that supersedes the requirement of the WPR.  For reasons I explain in Part 3(iii) of this post, that argument is intriguing, but is probably unavailing.  Judge Koller-Kotelly does not rely upon it.)

In sum, I don’t think Judge Kollar-Kotelly’s holding on the political question doctrine is correct.  But her holding on Article III standing is.  Therefore I don’t expect the court of appeals to reverse the judgment.