Tuesday, May 10, 2016

Will the courts adjudicate whether Operation Inherent Resolve (against ISIL) is legal?

Marty Lederman

As most Balkinization readers are likely aware, Army Captain Nathan Michael Smith recently filed suit against President Obama, seeking a declaration that the continuing conflict with ISIL is unlawful.  The President introduced U.S. forces into hostilities against ISIL in Iraq and in Syria in the latter half of 2014.  Captain Smith 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.”  Even so, he argues that Section 5(b) of the War Powers Resolution (WPR) required the President to withdraw the troops from hostilities after 90 days — 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.

In a post over at Just Security, I explain why the courts are unlikely to reach the merits of Captain Smith's claim.  It's not because the case presents a nonjusticiable “political question.”  The dispute turns on a standard-issue (if perhaps difficult) question of statutory interpretation, namely:  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.”

Nevertheless, the courts are likely to dismiss the case for lack of standing, because 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.

Smith has not been placed in harm’s way in Iraq or Syria; instead, he 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.  He asserts that the President’s alleged failure to comply with the WPR prevents him from “honor[ing]” the oath of office that he took when he became a commissioned officer in 2010.

In my post, I explain why Smith has not alleged any facts to support his claim that the President's actions prevent him from complying with his obligation to “bear true faith and allegiance” to the Constitution (even assuming that such a showing would suffice to establish Article III standing).

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