The courts should reach the merits of an Army officer’s challenge to the legality of the war against ISIL, and find that war unlawful absent explicit congressional authorization, TCP and three members of its War Powers Committee argued in a friend-of-the-court brief submitted to the U.S. Court of Appeals for the District of Columbia on April 10th.
Capt. Nathan Michael Smith, who is deployed to Kuwait as an intelligence officer, argues in his lawsuit that the president lacks the authority for using military force against the Islamic State, also known as ISIL or ISIS, because he failed to get congressional authorization as required by the Constitution and the War Powers Resolution of 1973. Smith is appealing a district court ruling dismissing his lawsuit.
“The principles in question could hardly be clearer, or more important. They concern the most fundamental question that the Nation can face: whether the peoples’ elected representatives have power to restrict executive war-making,” the TCP brief says.
The U.S. District Court for the District of Columbia dismissed the case in November of 2016 holding that Smith lacked standing to sue and that the case presented a “political question” not appropriate for judicial review. TCP’s brief argues the courts are perfectly well suited to address the questions Smith’s case presents, that the Supreme Court held as much over 200 years ago, and that, contrary to the District Court’s finding, there is a conflict between Congress and the President regarding the lawfulness of the war against ISIS”. Smith is only asking the court to “enforce his statutory right [under the War Powers Resolution] not to be ordered into these hostilities absent a clear statement by Congress authorizing the introduction of the United States armed forces into these specific hostilities,” the brief states, calling such an action “a familiar judicial exercise.”
TCP was joined in its friend-of-the-court brief by the co-chairs of its War Powers Committee, Aspen Institute vice president and former member of Congress Mickey Edwards and David Skaggs, co-chair of the board of the Office of Congressional Ethics