Amicus Brief of the Constitution Project Submitted to D.C. Circuit Court of Appeals in Smith v. Trump

Abstract

In Smith v. Obama (2016), the District Court found that Captain Smith’s action presents a political question for three reasons: first, it presented questions committed to the political branches of government; second, the courts are ill-equipped to resolve those questions; and third, there is no conflict between Congress and the President regarding the lawfulness of the war against ISIS. In this brief, amici ask the DC Circuit to reverse that ruling, arguing that the District Court erred in each of those findings. First, the Supreme Court has previously reached the merits to decide two seminal cases that are directly on point — Little v. Barreme (1804) and Youngstown Sheet & Tube Co. v. Sawyer (1952) — without even considering the possibility that either presented a political question. Second, judicial fact-finding incapacities present an evidentiary hurdle that a plaintiff can overcome by meeting the applicable burden of persuasion, not an insurmountable justiciability barrier that prevents a plaintiff from even attempting to do so. And third, the District Court could conclude that no conflict exists between Congress and the president only by holding sub silentio that the War Powers Resolution’s clear statement rule is unconstitutional — thus creating an issue of statutory validity that the Supreme Court has emphasized does not present a political question.