An upcoming case at the US Court of Appeals could pose a major legal challenge to the ability of US presidents to unilaterally launch protracted ground wars, and if nothing else could reassert the court’s authority to tackle the question of a war’s legality.
The case, brought last year by Army Captain Nathan Michael Smith, challenges the legality of the ISIS War, noting that such a war was never constitutionally declared, nor indeed even authorized by Congress as part of some War Powers Act Authorization for the Use of Military Force (AUMF).
The lawsuit was originally against President Obama, but the appeal has continued against Trump on the exact same basis. The War Powers Act allows use of force only for 60 days without congressional authorization – the ISIS war has been going on for three years.
The initial lawsuit was thrown out by a District Court judge, who argued that the captain lacked standing to question the war’s legality. In her opinion, she claimed the question of war legality was up to Congress and the president, not the courts.
The Appellate Court appears at least somewhat sympathetic to the question, allowing oral arguments instead of dismissing the idea out of hand. The Justice Department has argued that since Capt. Smith is no longer active duty, he should not longer be able to question the war’s legality in court, though his lawyers note he remains subject to recall to active duty at any time.
Congress initially punted on the AUMF question in 2014 because it was close to the mid-term elections. Expectations were that they would tackle the issue in early 2015, though this never happened either, as President Obama argued he didn’t need authorization any more and that the war was just an established fact at that point. By 2016, elections were again around the corner, and there was again no political appetite to debate the conflict.
There has been some suggestion the Trump Administration would welcome an AUMF on the ISIS War, though there were similar suggestions from the Obama Administration, that lasted up until the AUMF appeared to include any specific limitations on size, length,and scope of the war.