Tuesday, April 4, 2017

The headline is: Brief for Captain Nathan Smith's Challenge to Presidential War-making

Lawfareblog has posted a copy of an interesting appeal to the U.S. Court of Appeals for the District of Columbia, in Smith v. Trump.  Captain Smith alleges violations of the 1973 War Powers Resolution. 

Recognizing his obligation to follow orders, he has and will obey orders to service down-range. To resolve his dilemma, Smith brought this action for a declaratory judgment. He does not seek injunctive or other equitable relief. He simply requests a declaration by this Court that will authoritatively determine whether OIR violates the WPR. Smith will continue to obey orders to support the Operation until his case is finally resolved on the merits.

The issues on appeal are:

1. Did the District Court correctly decide that Captain Smith has not alleged “injury in fact” sufficient to give him Article III standing to challenge the war against ISIL in Iraq and Syria?

2. Did the District Court correctly decide that the political question doctrine bars adjudication of the merits of Captain Smith’s claim that the President has failed to obtain the necessary “specific statutory authorization” from Congress to fight the war against ISIL?

He is making the following claims.
• The President is violating the WPR by continuing to use U.S. military
forces in the War without “specific statutory authorization.”
• In failing to provide an official, sustained, public explanation of the Administration’s legal rationale for the War, the President violated the command of Article II, §3, cl. 5 of the Constitution to “take Care that the Laws be faithfully executed.”
• The 2001 Authorization for Use of Military Force (“2001 AUMF”) 7 and the Authorization for Use of Military Force Against Iraq Resolution of 2002 (“2002 Iraq AUMF”), 8 do not constitute “specific statutory authorization” for the War.
• The President’s “commander-in-chief” authority under Article II, §3 does not override his obligation under the WPR to obtain from Congress “specific statutory authorization” for the War.

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