Having joined The Constitution Project in an amicus brief in Smith v. Obama, I am disappointed the U.S. District Court for the District of Columbia decided to dismiss the case on Nov 21.

As Just Security readers are no doubt aware, Army Captain Nathan Smith’s action challenged the legality of U.S. military activities against ISIS as violating the 60-day time limit in the War Powers Resolution. The Court held that Smith lacks standing and that the case presents a political question. On the latter point (our brief did not address the former), it seems to me that the Court’s logic doesn’t parse. It claimed to find no inter-branch dispute within the government, but didn’t reach the issues it needed to resolve to sustain that conclusion. And in straining to avoid those issues, it misread the War Powers Resolution. (And, for more: See Marty Lederman’s analysis from earlier in the day.)

The Court rested its political question analysis on the proposition that “the Court in this case is not presented with a dispute between the two political branches regarding the challenged action” [p. 29] because Smith has not pointed to any congressional action “that would indicate that Congress believes that further specific authorization . . . is required … under the War Powers Resolution.” [p. 30] But the whole purpose and effect of the Resolution’s time limit is, of course, to avoid the need for Congress to enact a law requiring “further specific authorization.” The Resolution’s time limit itself creates “a dispute between the two political branches” when the President ignores it, as we argued President Obama has done, in prosecuting the war against ISIS. There are only three ways the Court could have sustained its conclusion that it was not presented with a dispute between Congress and the President:  

  1. It could have found that either the 2001 or 2002 AUMF authorized use of force against ISIS war—but to decide that would have been to decide the merits, which the Court purported to avoid.
  2. It could have found that the Resolution’s time limit is unconstitutional—but that also was a question the Court said it did not reach.
  3. It could have found specific statutory authorization to be implicit in appropriations enacted after the use of force against ISIS commenced, meaning Congress gave its de-facto permission when it signed off on funding to fight ISIS. But the Court could not have reached that conclusion without finding the Resolution’s clear statement rule (section 8(a)(1)) to be unconstitutional—a question which the Court also said it does not reach [n. 15, pp. 30-31], for good reason: as we pointed out in our brief, no case in which the Court has recognized a political question has ever stemmed from a statute, and the weight of authority would have supported upholding the Resolution’s clear statement rule, not overturning it.

Much remains to be said about the Court’s regrettable decision, but one final observation is in order concerning its misapplication of the political question doctrine. The Court opined that the case presented “factual questions that are not of a type the Court is equipped to handle with traditional judicially manageable standards.” Such apprehensions about judicial fact-finding incapacities are doctrinally misdirected. They are properly addressed as an evidentiary issue, not a question of justiciability. The Supreme Court’s political question precedents make clear that it meant to foreclose the judicial resolution of disputes characterized by indeterminate legal standards, not fact-finding problems. Fact-finding deficiencies can be addressed as they always are, through the use of interrogatories, depositions, testimony, and all the other means of gathering evidence. Using such means, Captain Smith may or may not have succeeded in establishing his claim by a preponderance of the evidence. But the opportunity to meet that burden is one that the law accorded him. “It is emphatically the province and duty of the judicial department to say what the law is,” the Supreme Court said in Marbury v. Madison (1803).

Would that this Court had upheld that duty.