Professor Ackerman Challenges Presidential War Powers in Court

On Friday, October 27, 2017, Professor Bruce Ackerman ’67, along with Attorney David Remes, presented the oral argument in Smith v. Trump before the U.S. Court of Appeals for the District of Columbia. The lawsuit challenges the legality of America’s war against ISIS in Iraq and Syria under the War Powers Act of 1973. The Act required President Obama to obtain Congressional authorization within 60 days of his decision to initiate open-ended action against ISIS on September 10, 2014. The government has argued that the two Congressional Authorizations for Use of Military Force stemming from 2001, which supported military operations against Al Qaeda in Afghanistan and Saddam Hussein in Iraq, provided sufficient legal authority for President Obama’s 2014 decision to target the Islamic State.

Professor Ackerman has criticized this claim in a series of scholarly and popular writings. In a 2015 essay in the Atlantic Magazine, he argued that an officer engaged in combat against the Islamic State had standing to challenge the president’s claims in court.

Captain Nathan Smith, the plaintiff in this lawsuit, served at the command center for the war effort in Kuwait.  After reading Ackerman’s article, and soberly considering his oath to “support and defend” the Constitution, Captain Smith decided to mount his legal challenge in 2016. As Smith explained in a piece in The Atlantic, his decision did not come easily.

As Professor Ackerman argued on Friday, “If the court fails to act in this case, it will have established a precedent that permits future presidents of the United States with a mere assertion [to declare] that one or another terrorist group, without any provision of evidence to anybody, is an object of war. Forever.”

In this appeal, Smith is challenging a prior District Court ruling that sided with the government’s standing, ruling that it did not have power to decide the case. A decision in this case could come later this year or early in 2018.