Constitution Check: Is Current U.S. Military Action Against ISIS Illegal?

Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at the constitutional prospects for a suit filed by an Army officer claiming President Obama exceeded his authority in ordering attacks on ISIS.


 “In waging war against ISIS, President Obama is misusing limited congressional authorization for the use of military force as a blank check to conduct a war against enemies of his own choosing, without geographical or temporal boundaries.  Congress passed the 1973 War Powers Resolution in response to just such presidential overreach in the Vietnam War, and to protect against such abuses of presidential power in the future….The President has violated the War Powers Resolution…, the Take Care Clause of the Constitution…, and has exceeded his authority under the 2001 Authorization for the Use of Military Force…, under the 2002 Iraq Authorization for the Use of Military Force…, and has exceeded his authority as commander-in-chief.”

– Excerpts from a lawsuit filed on May 4 in a federal district court in Washington, D.C., by a young U.S. Army officer, Captain Nathan Michael Smith.  Now serving as part of U.S. military operations in Iraq and Syria from a headquarters in Kuwait, the officer filed a statement under oath in court, saying that he filed his lawsuit as a matter of conscience, because he took an oath to defend the Constitution and has doubts about the legality of the operations against the Islamic State.


Presidents have long waged military operations in foreign lands outside of the simple grants of war powers spelled out in the Constitution: Congress declares war and the President manages it as commander-in-chief. The history books are filled now with failed attempts, in legislative halls and in the courts, to restore that simple division of powers.

It is fair to say that, in modern times, the political branches – Congress and the White House – have been almost constantly at an impasse over who controls the entry of the American military into hostile operations overseas.   Congress has tried to limit presidential discretion, especially by passing the War Powers Resolution in 1973 – nearly a half-century ago.  Presidents have found ways to commit the troops – or air power or unmanned drones – despite those restrictions.

Every president since the 1970s, in fact, has held the belief that Congress’s repeated attempts to curb military combat are unconstitutional, as an intrusion on the commander-in-chief’s role in managing diplomacy and hostile operations.

Under the usual system of defining constitutional powers in a final way, it would be the courts (especially the Supreme Court) that would be expected to have the last word.  But it is very difficult to get the courts to take on that role, in response to any given commitment of U.S. forces to war or its equivalent in other countries.   Courts that normally are not bashful about interpreting the Constitution are very hesitant do so when that would mean second-guessing the legality of military operations, not only while such actions are ongoing, but after they are over.

Is that an abdication of the task, first assigned by the courts to themselves in the 1803 decision in Marbury v. Madison, to “say what the law is”?   Judges will insist that it is not a shirking of duty, but rather a recognition that courts simply do not have the means or the information to turn questions of war and diplomacy into neat legal equations.

As recently as last month, in fact, the Supreme Court issued a decision in a constitutional case over the division of powers between Congress and the courts, and the majority went out of its way to defer to legislative choice that time, primarily because it involved policy on how to deal with international terrorism.   The dispute at the center of that case was a legal one – the entitlement of victims of terrorism to be compensated by a foreign sponsor of such atrocities – but the court majority still was prepared to let Congress all but dictate the outcome.

Aside from a sense among judges that this field of government is simply not within their institutional competence, there is also a sense that the nation ought to be able to count on the two political branches to work things out without judicial interference.   Judges realize that the stakes can be very high in war and diplomacy, and so they do expect (or would like to expect) that those who hold political office would respond sensibly and effectively.

In recent years, the war on terrorism has turned out to be an arduous test of whether the political branches can come together to find common ground or workable solutions. The difficulty of dealing across a deep partisan divide has made it difficult to carry out even fairly narrow policy initiatives – as, for example, with President Obama’s plan (now more than seven years old) to close the terrorist detention facility at Guantanamo Bay, Cuba.  Congress has surrounded that plan with a tangle of limitations, and refuses, each year, to relax them as the President regularly asks.

It is a common belief in Washington now that, in the military operations against the Islamic State, President Obama basically concluded that he did not need an additional grant of authority from Congress, and apparently there are in existence some still-secret memoes telling him just that.

It is also possible, though, that the White House surveyed the chances of actually getting congressional approval for new authorization, and found the prospect so bleak that it was not worth asking.  The spreading success of ISIS military operations left little option to wait until common ground might be found.

It thus is no surprise that the current “war” seems problematic to many, and perhaps even to some in the military whose task it is to wage that war.   A young Army captain’s new lawsuit, seeking a court declaration that Obama has violated not only congressional limits but also his own constitutional duties perhaps reflects the kind of frustration that citizens in general, not just people in uniform, feel.  Even so compelling a task as responding to ISIS does not seem to produce cooperation and compromise among officeholders.

And yet, the chances are that the government will soon go into that court in Washington, and ask – with a great prospect for success – that the case of Smith v. Obama be dismissed before it goes much further.   It would be a stunning development if that does not happen.

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