Academic journal article Harvard Law Review

The Justiciability of Servicemember Suits

Academic journal article Harvard Law Review

The Justiciability of Servicemember Suits

Article excerpt

On May 4, 2016, Captain Nathan Michael Smith of the U.S. Army sued President Obama in the U.S. District Court for the District of Columbia. (1) Captain Smith claimed that the President was forcing him to violate his oath of commission by deploying him to Kuwait to fight an illegal war against the Islamic State of Iraq and Syria (ISIS). (2) Captain Smith asked the court to declare that the President had violated the War Powers Resolution (3) (the Resolution) by failing to secure congressional approval for the conflict. (4) On November 21, 2016, the court dismissed the case. (5) First, the court held that Captain Smith's oath-based injury did not rise to the level of an Article III injury in fact. (6) Second, the court held that the political question doctrine barred judicial review of the President's decision. (7) Pointing to the broad language contained in the post-9/11 Authorization for Use of Military Force (8) (AUMF), the court held that the question whether the war was autho-rized was committed to the Executive's discretion. (9) The case was held to be nonjusticiable.

Despite the outcome of Captain Smith's case, it is easy to envision a realistic hypothetical with a different result. For example, suppose that the plaintiff is an infantry Marine being sent into combat rather than an intelligence officer being deployed to a rear-area headquarters, as Captain Smith was. The President, facing an unexpected crisis, orders that Marine's unit to deploy within a few weeks to fight in a conflict expected to last well over ninety days and covered by no existing AUMF. (10) Congress, controlled by the opposition party and faced with an unpopular war, either explicitly orders the President to cease fighting or refuses to approve the conflict and thus leaves the Executive in violation of the Resolution. And the Marine, who opposes the war and does not want to deploy to fight it, brings suit against the Executive seeking to enjoin his pending deployment. (11)

Under current doctrine, that Marine's suit would force the court to adjudicate the division of the war powers between the President and Congress. First, the plaintiff would be able to establish standing by alleging a qualifying injury. Second, a court could not dismiss the case under the current political question doctrine, at least not without deciding the separation of powers question about which the political branches really care: whether the Executive has authority to fight a conflict in direct violation of a congressional order. This Note argues that only a return to the roots of standing doctrine can reliably keep such suits brought by volunteer servicemembers out of the courts.

This Note proceeds in three parts. Part I frames the continuing debate over the division of war powers between Congress and the President. Part II applies the current tests for the standing and political question doctrines and concludes that the hypothetical Marine's suit would be justiciable, forcing the courts to adjudicate the war powers question. Part III suggests that, properly reframed based on its historical roots, standing doctrine might preclude today's volunteer servicemembers from bringing suit for service-related deprivations.


Although the United States has fought many conflicts since the Founding, it remains unclear how the war powers are divided between the executive and legislative branches. The text of the Constitution shows that the two political branches to some extent share the war powers. Article II, Section 1 vests the President with unenumerated executive powers, (12) and Section 2 makes him the "Commander in Chief of the Army and Navy of the United States, and of the Militia." (13) But the Framers deliberately gave many of the martial powers held by the English monarch to the legislature. (14) Article I, Section 8 commits to Congress the powers to declare war, regulate captures, and regulate the services, among others. …

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