Is Fighting ISIS Unconstitutional?

Lydia Curtz, KLJ Staff Editor[1]

United States military forces have been fighting ISIS (a.k.a. “ISIL” or “Islamic State”)[2] in “Operation Inherent Resolve”[3] since the summer of 2014.[4]   This operation has taken U.S. soldiers to both Iraq and Syria.[5]  Under the United States Constitution, it is the sole prerogative of Congress to declare war.[6]  Although Congress has never declared war on ISIS,[7] the operations against the terrorist group are allegedly being conducted under the legal authority of the 2001 Authorization for the Use of Military Force (“2001 AUMF”).[8]  Congress approved the 2001 AUMF immediately following the September 11th terrorist attacks,[9] for the purpose of granting the President specific statutory authority “to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”[10]

Earlier this summer U.S. Army Captain, Nathan Smith, brought suit against President Obama seeking a declaration that the war against ISIS is illegal.[11] Captain Smith argues Congress has never specifically authorized the use of military force against ISIS.[12]  The complaint asserts that President Obama violated the Take Care Clause of Article II of the U.S. Constitution by neglecting his obligation to ‘“faithfully execute” the 1973 War Powers Resolution,”[13] and failing to publish a legal justification for military action against ISIS.[14]  Because President Obama did not publish this justification, Captain Smith feels he is unable to “reconcile his military actions as an officer with his oath to ‘preserve, protect, and defend the Constitution of the United States.’”[15]

The War Powers Resolution of 1973 (“WPR”) requires the President to seek Congressional approval for the use of military force within 60 days of its use.[16]  If the President fails to seek the required approval, or if Congress denies such use, then the President must withdraw deployed forces from conflict.[17]  The Obama Administration has attempted to remain in compliance with the WPR by proposing to Congress several new AUMF drafts specific to combating ISIS.[18] However, Congress has avoided the political hotcake of authorizing another war in the Middle East by repeatedly declining to hold hearings or vote on the matter.[19]  Consequently, Congressional stagnation has left “Operation Inherent Resolve” in legal limbo,[20] with the result that the war against ISIS might be unconstitutional after all.

[1] J.D. expected May 2018.
[2] Anne Barnard, After losses in Syria and Iraq, ISIS Moves the Goal Post, N.Y. Times (Oct. 18, 2016), http://www.nytimes.com/2016/10/19/world/middleeast/islamic-state-syria-iraq.html?_r=0.
[3] Operation Inherent Resolve, U.S. Department of Defense, http://www.defense.gov/News/Special-Reports/0814_Inherent-Resolve.
[4] Garrett Epps, Can the Courts Make Congress Declare War?, The Atlantic (June 1, 2016), http://www.theatlantic.com/politics/archive/2016/06/war-powers-irresolution/485021/.
[5] See Operation Inherent Resolve, supra note 3.
[6] U.S. Const. art. I, § 8, cl. 11.
[7] Clare Foran, Congress Takes A Step Toward Declaring War on ISIS, The Atlantic (Jan. 22, 2016), http://www.theatlantic.com/politics/archive/2016/01/islamic-state-war/426528/.
[8] Mary Louise Kelly, When The U.S. Military Strikes, White House Points To A 2001 Measure, National Public Radio (Sep. 6, 2016), http://www.npr.org/sections/parallels/2016/09/06/492857888/when-the-u-s-military-strikes-white-house-points-to-a-2001-measure; see also Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224.
[9] Authorization for Use of Military Force, Pub. L. No. 107-40, 115 Stat. 224.
[10] Id.
[11] Complaint at 1, Smith v. Obama, Civ. No. 00843 (D.D.C. May 4, 2016).
[12] Id.
[13] U.S. Const. art. II, § 3 (“he shall take care that the laws be faithfully executed”); Complaint at 2, Smith v. Obama.
[14] Id.
[15] Id. (citing Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804) (noting “A commander of a ship of war of the United States, in obeying his instructions from the President of the United States, acts at his peril. If those instructions are not strictly warranted by law he is answerable in damages to any person injured by their execution.”) (cited with approval in Zivitovsky v. Kerry, 135 S. Ct. 2076, 2090 (2015))).
[16] See Epps, supra note 4.
[17] Id.
[18] Jack Goldsmith, The Administration’s Hard-To-Fathom Draft AUMF, Lawfare (Feb. 12, 2015, 6:33 AM), https://www.lawfareblog.com/administrations-hard-fathom-draft-aumf.
[19] Id.
[20] See Epps, supra note 4.