Nathan Michael Smith Appeal

USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 1 of 65
[ORAL ARGUMENT NOT YET SCHEDULED]
No. 16-5377
___________________
United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT
___________________
NATHAN MICHAEL SMITH,

Appellant,
v.
DONALD J. TRUMP,
Appellee.
___________________
On Appeal from the

United States District Court
for the District of Columbia
1:16-cv-00843 (CKK)
___________________
BRIEF OF APPELLANT
___________________
DAVID H. REMES
Appeal for Justice
1106 Noyes Drive
Silver Spring, MD 20910
(202) 669-6508
remesdh@gmail.com
Counsel for Appellant

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
Parties. The parties who appeared before the District Court were Appellant,
Army Captain Nathan Smith; Appellee, Barack H. Obama; and The Constitution
Project, amicus curiae, in support of Appellant.
Ruling under review. This is an appeal from a ruling by District Judge
Colleen Kollar-Kotelly, filed November 21, 2016. (App. 63.) There is no official
citation. The judgment disposes of all parties claims.
Related cases. There are no related cases.

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ................................................................................... iii
GLOSSARY OF ABBREVIATIONS ......................................................................ix
JURISDICTION......................................................................................................... 1
ISSUES PRESENTED FOR REVIEW ..................................................................... 1
STATEMENT OF THE CASE .................................................................................. 1
STANDARD OF REVIEW ....................................................................................... 6
SUMMARY OF ARGUMENT ................................................................................. 6
ARGUMENT ............................................................................................................. 8
I. CAPTAIN SMITH SUFFERS INJURY IN FACT BECAUSE

HE MUST CHOOSE BETWEEN TWO POTENTIAL
HARMS. ................................................................................................ 8
A. The Officers Oath Compels Captain Smith To Choose

Between Two Potential Harms. ....................................................... 8
B. Little Requires Officers to Disobey the Presidents Orders

When They Exceed His Powers as Commander-In-Chief............. 13
C. Captain Smith Has Standing Under The Oath-Taker Cases. ......... 19
II. THIS CASE DOES NOT RAISE A POLITICAL

QUESTION. ...................................................................................... 22
A. The District Court Ignored Youngstown in Determining

Whether The Case Raises Issues Completely Committed
To The Political Branches. ........................................................... 24
i
B. This Case Does Not Involve Factual Questions Which The

Judiciary Is Poorly Equipped To Resolve. ................................. 28
C. The 2001 and 2002 AUMFs Do Not Authorize Hostilities

Against ISIL. .................................................................................. 31
D. The District Court Erred In Giving Authoritative Status To

Stephen Prestons Speech Justifying the War ................................ 39
E. Congressional Funding of OIR Does Not Constitute the

Specific Authorization Required by the WPR. .......................... 44
CONCLUSION ........................................................................................................ 52
CERTIFICATE OF COMPLIANCE ....................................................................... 53
CERTIFICATE OF SERVICE ................................................................................ 54
ii
TABLE OF AUTHORITIES
CASES
Arpaio v. Obama,
797 F.3d 11 (D.C. Cir. 2015) ................................................................................ 6
Baker v. Carr,
369 U.S. 186 (1962) ......................................................................................20, 24
Bender v. Williamsport Area School District,
475 U.S. 534 (1986) ............................................................................................. 20
Board of Education of Central School District No. 1 v. Allen,
392 U.S. 236 (1968) ..................................................................................5, 19, 20
Bob Jones University v. United States,
461 U.S. 574 (1983) ............................................................................................ 36
Butz v. Economou,
438 U.S. 478 (1978) ................................................................................16, 17, 18
Citizens for Responsibility & Ethics in Wash. v. United States,
846 F.3d 1235 (D.C. Cir. 2017 ........................................................................... 44
City of South Lake Tahoe v. California Tahoe Regional Planning Agency,
625 F.2d 231 (9th Cir. 1980)............................................................................... 21
Clarke v. United States,
705 F. Supp. 605 (D.D.C. 1988), affd 886 F.2d 404 (D.C. Cir. 1989),
rehg denied, 898 F.2d 161, vacated as moot, 915 F.2d 699 (1990) ............20, 21
CleanCOALition v. TXU Power,
536 F.3d 469 (5th Cir. 2008)................................................................................. 2
Cole v. Richardson,
405 U.S. 676 (1972) ............................................................................................ 13
Crane v. Johnson,
783 F.3d 244 (5th Cir. 2015)............................................................................... 21
Drake v. Obama,
664 F.3d 774 (9th Cir. 2011)............................................................................... 21
El-Shifa Pharmaceutical Industries Co. v. United States,
607 F.3d 836 (2010) ............................................................................................ 23
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ............................................................................................ 38
iii
Finch v. Mississippi State Med. Assn, Inc.,

585 F.2d 765 (5th Cir. 1978)............................................................................... 21
Flood v. Kuhn,
407 U.S. 258 (1972) ............................................................................................ 38
Hamdan v. Rumsfeld,
548 U.S. 557 (2006) ............................................................................................ 36
Hamdi v. Rumsfeld,
542 U.S. 507 (2004) ........................................................................................8, 35
I.N.S. v. Cardoza-Fonseca,
480 U.S. 421 (1987) ............................................................................................ 35
Lin v. United States,
561 F.3d 502 (D.C. Cir. 2009) .............................................................................. 6
Little v. Barreme,
6 U.S.(2 Cranch) 170 (1804) .................................................................5, 6, 13, 15
Medelln v. Texas,
552 U.S. 491 (2008) ............................................................................................ 27
Michigan v. Bay Mills Indian Community,
134 S. Ct. 2024 (2014) ........................................................................................ 32
Moda Health Plan, Inc. v. United States,
130 Fed. Cl. 436 (2017) ...................................................................................... 46
Mohamad v. Palestinian Authority,
132 S. Ct. 1702 (2012) ........................................................................................ 36
Rodearmel v. Clinton,
666 F. Supp. 2d 123 (D.D.C. 2009) ..............................................................21, 22
Tennessee Valley Auth. v. Hill,
437 U.S. 153 (1977) ............................................................................................ 46
United States ex rel. New v. Rumsfeld,
448 F.3d 403 (D.C. Cir. 2006) ......................................................................18, 19
United States ex rel. Oliver v. Philip Morris USA,
101 F. Supp. 3d 111 (D.D.C. 2015), affd , 826 F.3d 466 (D.C. Cir.
2016).....................................................................................................................33
United States v. Bansal,
663 F.3d 634 (3d Cir. 2011) ................................................................................ 33
iv
Wachovia Bank v. Schmidt,

546 U.S. 303 (2006) .............................................................................................. 9
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) ............................................................................7, 22, 25, 27
Zivotofsky v. Kerry,
135 S. Ct. 2076 (2015) ..............................................................................7, 15, 27
CONSTITUTIONAL AND STATUTORY PROVISIONS

28 U.S.C. 1291 ........................................................................................................ 1
28 U.S.C. 513 ........................................................................................................41
28 U.S.C. 511-13................................................................................................. 41
28 U.S.C. 1331(a) ................................................................................................... 1
Act of April 30, 1790, ch. 10, 12, 1 Stat. 119 (1790) ............................................. 9
Act of Jan. 11, 1812, ch. 14, 18, 2 Stat. 671 (1812) ............................................... 9
Act of July 2, 1862, ch. 128, 12 Stat. 502 (1862) ..............................................10, 11
Act of June 1, 1789, ch. 1, 1, 1 Stat. 23 (1789) .................................................... 10
Act of March 16, 1802, ch. 9, 29, 2 Stat. 132 (1802) ............................................. 9
Act of March 29, 1806, ch. 20, art. 10, 1 Stat 359 (1806) ......................................... 9
Act of March 3, 1795, ch. 44, 15, 1 Stat. 430 (1795) ............................................. 9
Act of May 13, 1884, ch. 46, 2, 23 Stat. 21 (1884) .............................................. 10
Act of May 30, 1796, ch. 39, 21, 1 Stat. 483 (1796) .............................................. 9
Act of Sept. 29, 1789, ch. 25, 3, 1 Stat. 95 (1789) ................................................. 9
Authorization for Use of Military Force Against Iraq Resolution of 2002,
Pub. L. No. 107-243, 116 Stat. 1498 (2002) (50 U.S.C. 1541 note) ................. 4
Authorization for Use of Military Force,
Pub. L. No. 107-40, 115 Stat. 224 (2001) (50 U.S.C. 1541 note) ...............4, 35
Consolidated and Continuing Appropriations Act, 2015,
Pub. L. No. 113-235, 128 Stat. 2130 (2014) ....................................................... 49
Consolidated Appropriations Act, 2014,
Pub. L. No. 113-76, 128 Stat. 5 (2014) ............................................................... 50
Consolidated Appropriations Act, 2016,
Pub. L. No. 114-113, 129 Stat. 2242 (2015) (10 U.S.C. 801 note) ...........49, 50
v
Continuing Appropriations Resolution, 2015,

Pub. L. No. 113-235, 128 Stat. 1867 (2014) ....................................................... 49
Enlistment oath, 10 U.S.C. 502(a) ...................................................................9, 11
Fed. R. Civ. P. 12(b)(1).............................................................................................. 5
National Defense Authorization Act for Fiscal Year 2014,
Pub. L. No. 113-76, 127 Stat. 672 (10 U.S.C. 801 note) ................................. 49
National Defense Authorization Act for Fiscal Year 2015,
Pub. L. No. 113-291, 128 Stat. 3292 (10 U.S.C. 801 note) ............................. 51
Oath of office, 5 U.S.C. 3331 ....................................................................1, 11, 13
U.S. Const. art. II, 3, cl. 4 ..................................................................................... 27
Uniform Code of Military Justice,
10 U.S.C. 801946 .......................................................................................... 3
War Powers Resolution of 1973, Pub. L. No. 93-148, 87 Stat. 555 (1973)
(codified at 50 U.S.C. 1541-1548 ) ...........................................2, 28, 30, 43, 51
LEGISLATIVE MATERIALS
119 Cong. Rec. 33,859-60 (1973)............................................................................ 26
119 Cong. Rec. 36,202 (1973) ................................................................................. 26
147 Cong. Rec. 9949 (Oct. 1, 2001) ........................................................................ 34
157 Cong. Rec. 8235 (Dec. 5, 2011)........................................................................ 38
160 Cong. Rec. H7557 (Sept. 16, 2014) .................................................................. 48
Authorization for Use of Military Force After Iraq and Afghanistan:
Hearing Before the S. Comm. on Foreign Relations, 113th Cong.
459 (2014) ........................................................................................................... 41
Consolidated Appropriations Act, 2016, H. Comm. on Appropriations,
Legislative Text and Explanatory Statement on H.R. 2029/Pub. L. No.
114-113, Book 1 (Comm. Print 2016) ...........................................................49, 50
H.R. Rep. No. 93-287 (1973) ................................................................................... 26
House Rule XXI.2, 114th Cong. (2015) .................................................................. 46
S. Rep. No. 93-220 (1973) ...........................................................................25, 26, 45
Standing Rules of the Senate XVI.4, 113th Cong. (2014) .................................... 46
War Powers Legislation, 1973: Hearings on S. 440 Before the S. Comm. on
Foreign Relations, 93d Cong. 115 (1973) ............................................................ 45
vi
ADMINISTRATIVE MATERIALS
Dept of the Army, Manual for Courts-Martial,
RMC 916(d), at II-110 (2012 ed.) ....................................................................... 13
President Barack H. Obama, Letter to Congressional Leaders Reporting on
the Deployment of United States Armed Forces Personnel To Iraq and
the Authorization of Military Operations in Syria (Sept. 23, 2014) ........28, 29, 30
Press Release, Office of the Press Secy, Statement by the President on
ISIL, The White House (Sept. 10, 2014) ............................................................ 28
Statement of the President on H.R. 1540 (Dec. 31, 2011)....................................... 39
Susan E. Rice, Letter from Susan E. Rice, Assistant to the President for
Natl Sec. Affairs, to John A. Boehner, Speaker, U.S. House of
Representatives (July 25, 2014) ........................................................................... 32
MISCELLANEOUS
Driesen, David M., Toward A Duty-Based Theory of Executive Power,
78 Fordham L. Rev. 71 (2009) ............................................................................ 14
Garcia, Michael John & Jennifer K. Elsea, Cong. Research Serv.,
R43720, U.S. Military Action Against The Islamic State: Answers To
Frequently Asked Legal Questions ...................................................................... 33
Glennon, Michael, Two Views of Presidential Foreign Affairs Power: Little
v. Barreme or Curtiss-Wright?, 13 Yale J. Intl L. 5 (1988) .........................15, 16
Hickey, Donald R., The Quasi-War: Americas First Limited War, 1798-
1801, 18 The Northern Mariner/le marin du nord, nos. 3-4, 2008 ..................... 14
Michel, Chris, Comment, Theres No Such Thing as a Political Question of
Statutory Interpretation: The Implications of Zivotofsky v. Clinton, 123
Yale L.J. 1253 (2014)........................................................................................... 23
Morrison, Trevor W, Constitutional Alarmism,
124 Harv. L. Rev. 1688 (2011). ........................................................................... 41
Morrison, Trevor W., Libya, Hostilities, the Office of Legal Counsel, and
the Process of Executive Branch Legal Interpretation, 124 Harv. L. Rev.
F. 62 (2011) .......................................................................................................... 43
Morrison, Trevor W., Stare Decisis in the Office of Legal Counsel,
110 Colum. L. Rev. 1448 (2010). ........................................................................ 44
Preston, Stephen W., General Counsel, U.S. Dept of Defense, The Legal
Framework for the United States' Use of Military Force Since 9/11,
vii
Address to the Annual Meeting of the American Society of International

Law (Apr. 10, 2015) .......................................................................................36, 40
Scalia, Antonin & Bryan Garner, Reading Law (2012).......................................9, 11
Story, Joseph, Commentaries on the Constitution of the United States
(1833) .............................................................................................................13, 14
Wagner, Gregory A., Note, Warheads on Foreheads: The Applicability of
the 9/11 AUMF to the Threat of ISIL, 46 U. Mem. L. Rev. 235 (2015) ........33, 34
Younts, Major R. David, Orders and the Oath: Understanding a Military
Officers Duty to Support and Defend the Constitution,
39 Reporter 43 (2012) .......................................................................................... 14
COURT DOCUMENTS
Respondents Memorandum Regarding the Governments Detention
Authority Relative to Detainees Held at Guantanamo Bay, In re:
Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (TFH) (D.D.C.
Mar. 13, 2009), ECF No. 1689 ............................................................................ 37
viii
GLOSSARY OF ABBREVIATIONS
AUMF Authorization for Use of Military Force
CR Continuing Appropriations Resolution
DOD Department of Defense
ISIL Islamic State of Iraq and the Levant
NDAA National Defense Authorization Act
OIR Combined Joint Task-Force Operation Inherent Resolve
OLC Office of Legal Counsel
UCMJ Uniform Code of Military Justice
WPR 1973 War Powers Resolution
ix
JURISDICTION
Captain Smith alleges violations of the 1973 War Powers Resolution. The
District Court therefore had jurisdiction under 28 U.S.C. 1331. The decision he
appeals from is final. This Court therefore has jurisdiction under 28 U.S.C. 1291.
The District Courts decision was filed on November 21, 2016. The notice of
appeal was timely filed on December 19, 2016.
ISSUES PRESENTED FOR REVIEW
1. Did the District Court correctly decide that Captain Smith has not
alleged injury in fact sufficient to give him Article III standing to challenge the
war against ISIL in Iraq and Syria?
2. Did the District Court correctly decide that the political question
doctrine bars adjudication of the merits of Captain Smiths claim that the President
has failed to obtain the necessary specific statutory authorization from Congress
to fight the war against ISIL?
STATEMENT OF THE CASE
When Army Captain Smith (Smith) joined the Army in June 2010, he was
required to take an Oath of Office that he will support and defend the Constitution
of the United States. 5 U.S.C. 3331. 1 He is nearing the end of his active duty
1
Pursuant to Circuit Rule 28(a)(5), the text of this and other statutory authorities
relied upon is set forth in the Addendum.
1
service; he will be released from active duty in June 2017. 2 Smith will complete
his military service obligation as a ready reservist in May 2018. Until then, he
will be subject to recall to active duty.
In his final tour of duty, Smith was deployed as an intelligence officer in the
Kuwait headquarters of the Combined Joint Task-Force Operation Inherent
Resolve (OIR or Operation), which is the official name of the war (War)
against the Islamic State of Iraq and the Levant (ISIL), initiated by the United
States and its allies against Iraq and Syria in summer and fall 2014. Smith became
aware that Americans at home were debating whether the on-going War violated
the 1973 War Powers Resolution (WPR or Resolution), 3 which prohibits the
President from using U.S. military forces in hostilities for more than sixty days
without specific statutory authorization. 4
As he investigated the issue, he could nowhere find an official, sustained,
public explanation of the Administrations legal rationale for the War by the Office
of Legal Counsel (OLC) or the White House Counsel. Smith was left to make an
2
See Army Resources Command, Nov. 2, 2016; Orders 024-0128, Jan. 24, 2017.
The Court may take judicial notice of these documents. See generally
CleanCOALition v. TXU Power, 536 F.3d 469, 471 n.2 (5th Cir. 2008).
3
Pub. L. No. 93-148, 87 Stat. 555 (codified at 50 U.S.C. 15411548). (App. 24.)
In this brief we cite to the Public Law.
4
WPR 5(b). (App. 26.) The requirement also applies in the case of a declaration
of war or a national emergency created by an attack on the United States or its
armed forces. Those requirements are not at issue in this case.
2
independent judgment on the matter. All of the publicly available information led
him to believe that the President had exceeded his commander-in-chief powers in
conducting the War without receiving the specific statutory authorization within
the sixty-day period required by the Resolution.5 Given this conclusion, Smith
believed that if he supported the War, he would violate his Oath to support and
defend the Constitution of the United States against all enemies, foreign and
domestic and to bear true faith and allegiance to the same.
Smith faced a dilemma. If he obeyed his orders to support the War, and legal
authorities ultimately found that the War was illegal, he would have violated his
Oath. But if he disobeyed his orders, and the War was found legal, he could be
prosecuted and imprisoned under the Uniform Code of Military Justice
(UCMJ). 6
To resolve his dilemma, Smith brought this action for a declaratory
judgment. He does not seek injunctive or other equitable relief. He simply requests
a declaration by this Court that will authoritatively determine whether OIR violates
the WPR. Smith will continue to obey orders to support the Operation until his
case is finally resolved on the merits.
Captain Smith presented the following claims:
5
Id.
6
10 U.S.C. 801-946.
3
The President is violating the WPR by continuing to use U.S. military

forces in the War without specific statutory authorization.
In failing to provide an official, sustained, public explanation of the
Administrations legal rationale for the War, the President violated the
command of Article II, 3, cl. 5 of the Constitution to take Care that
the Laws be faithfully executed.
The 2001 Authorization for Use of Military Force (2001 AUMF) 7

and the Authorization for Use of Military Force Against Iraq
Resolution of 2002 (2002 Iraq AUMF), 8 do not constitute specific
statutory authorization for the War.
The Presidents commander-in-chief authority under Article II, 3

does not override his obligation under the WPR to obtain from
Congress specific statutory authorization for the War.
As relief, Smith asked the District Court to declare that (1) the President
violated the WPR and the Take Care Clause in deploying U.S. military forces in
the War for more than sixty days without the requisite congressional authorization,
and consequently was required by the WPR to withdraw these forces within the
next thirty days; and (2) the President will continue to be in violation of the WPR
and the Take Care Clause unless, within sixty days of a final judgment in Smiths
favor, he obtains specific statutory authorization for the use of U.S. military forces
in the War or, absent such authorization, he disengages them within the next thirty
days.
7
Pub. L. No. 107-40, 115 Stat. 224 (codified at 50 U.S.C. 1541 note). (App. 45.)
8
Pub. L. No. 107-243, 116 Stat. 1498 (50 U.S.C. 1541 note). (App. 48.)
4
The government moved to dismiss the complaint under Fed. R. Civ. P.
12(b)(1) for want of jurisdiction, on the ground that (1) Smith lacks standing to
assert his claims, (2) his claims raise non-justiciable political questions, (3) there is
no waiver of sovereign immunity permitting Smiths claims to proceed, and (4)
equitable relief against the President is not permitted.
The District Court granted the governments motion to dismiss on standing
and political question grounds. It ruled that Smith lacked standing on the ground
that the specific legal injury about which he complains is not sufficiently concrete
. . . or particularized. To reach this conclusion, it rejected Smiths reading of his
Oath and Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), as requiring officers to
disobey ultra vires orders of the President. The court also rejected Smiths reliance
on the oath of office cases, grounded in Board of Education of Central School
District No. 1 v. Allen, 392 U.S. 236 (1968), in which the Supreme Court
recognized standing for officials faced with a choice between honoring their oaths
and obeying an order they regarded as unconstitutional.
The District Court found that the legality of the War turned on whether the
2001 AUMF and 2002 Iraq AUMF constitute the specific statutory authorization
required by the WPR. The court ruled that the political question doctrine bars
adjudication of that question, on the ground that the issues raised are primarily
ones committed to the political branches of government, and the Court lacks
5
judicially manageable standards, and is otherwise ill-equipped, to resolve them.
The court also ruled that Captain Smiths return from Kuwait did not moot his
claims because they were capable of repetition, yet evading review.
STANDARD OF REVIEW
Dismissals for want of standing and political question grounds are reviewed
de novo. Arpaio v. Obama, 797 F.3d 11, 19 (D.C. Cir. 2015) (standing); Lin v.
United States, 561 F.3d 502, 505 (D.C. Cir. 2009) (political question).
SUMMARY OF ARGUMENT
Standing. The District Court erred in finding that Captain Smiths injury was
insufficiently concrete to support Article III standing. Smiths claim is based on his
forced choice between following the command of his Oath of Office and Little v.
Barreme, 6 U.S. (2 Cranch) 170 (1804), and obeying an illegal order of his
commander-in-chief. But the District Court failed to give effect to the differences
between the Officers Oath, which commands support of the Constitution, and the
Enlistment Oath, which commands obedience to superior officers or the direct
applicability of Little to the facts of Smiths case. The court also paid no heed to
the evolution of the two oaths, which shows that Congress meant this difference.
Finally, the court drew distinctions without a difference in rejecting Smiths
reliance on the oath of office cases of the Supreme Court and this Court.
6
Political question. In Zivotofsky v. Kerry, 135 S. Ct. 2076 (2015)
(Zivotofsky II), the Supreme Court reaffirmed Youngstown Sheet & Tube Co. v.
Sawyer, 343 U.S. 579 (1952) as a crucial precedent governing the application of
the political question doctrine. Yet the District Court ignored Youngstown in
finding that Captain Smiths complaint raised a political question. Its decision is
flatly inconsistent with Youngstown, which involved President Trumans order
seizing steel mills whose continuing production he deemed essential for the on-
going war in Korea. Justice Jacksons landmark concurrence insisted that the
Presidents war-making powers are at their lowest ebb when they violate express
congressional commands, and that it is the judiciarys task to determine whether
the President has indeed violated statutory limitations on his authority. Smiths
lawsuit raises the very same question decided by Youngstown only this time, it is
the WPR, not Taft-Hartley, which serves as the key statutory restriction on the
Presidents power.
Youngstown is flatly inconsistent with the District Courts holding that
certain aspects of this case are completely committed to the political branches.
Youngstowns principles, as elaborated in Zivotofsky II, also require rejection
of the District Courts second holding that factual questions raised by this case
are not of the type that the Court is well-equipped to resolve. No controversial
fact finding is needed to establish that the AUMFs enacted by Congress in 2001
7
and 2002 cannot serve as the specific authorizations required by the WPR for the
Presidents decision to initiate hostilities against ISIL in 2014. Moreover, an
adoption of the District Courts conclusion would be to give the President the
blank check for war, see Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality
opinion), that Congress denied him when it enacted the 2001 AUMF.
Finally, the District Court claims that Congress decisions to fund OIR in
omnibus appropriations acts establish that there is not presently a dispute between
the two political branches regarding the challenged action. Yet this holding
ignores provisions in the appropriations measures, as well as those in the WPR,
which explicitly repudiate any inference that such funding decisions constitute
authorization for the War. 9
ARGUMENT
I. CAPTAIN SMITH SUFFERS INJURY IN FACT BECAUSE HE

MUST CHOOSE BETWEEN TWO POTENTIAL HARMS.
A. The Officers Oath Compels Captain Smith To Choose Between
Two Potential Harms.
The Officers Oath requires Smith to support and defend the
Constitution. 10 Smith believes that the President exceeded his constitutional
powers in ordering him to support OIR. If he is right, his oath to support and
defend the Constitution obligates him to disobey his orders.
9
App. 63-96.
10
5 U.S.C. 3331.
8
As the District Court itself recognized, 11 enlistees face no similar dilemma.
The Enlistment Oath obligates them to observe and obey the orders of the
President of the United States of America, and the orders of the officers appointed
over [them]. 12 Their oath does not by its terms impose a superior obligation to
support and defend the Constitution.
The District Court entirely failed to appreciate the significance of this point
in interpreting the statute defining the Officers Oath. 13 Resort need not be had to
the in pari materia canon, which counsels that statutes addressing the same
subject matter generally should be read as if they were one law, 14 because both
oaths derive from the same Founding Era statute, which established the United
States military. 15
For more than seventy years, officers and enlisted personnel alike recited
both oaths. 16 But with the Civil War, the loyalty of the officer corps to the
11
App. 79 n.9.
12
10 U.S.C. 502(a).
13
Wachovia Bank v. Schmidt, 546 U.S. 303, 305 (2006) (citation omitted); see also
Antonin Scalia & Bryan Garner, Reading Law 252-55 (2012) (elaborating the
related statutes canon of statutory interpretation).
14
Schmidt, 546 U.S. at 305..
15
Act of Sept. 29, 1789, ch. 25, 1 Stat. 95, 96 (1789).
16
See Act of Jan. 11, 1812, ch. 14, 18. Act of March 16, 1802, ch. 9, 20; Act of
March 3, 1795, ch. 44, 15; Act of April 30, 1790, ch. 10, 12; Act of May 30,
1796, ch. 39, 21; The Act of March 29, 1806, ch. 20, art. 10, prescribed the oath
for noncommissioned officers and soldiers only.
9
Constitution became a matter of first importance. In 1862, Congress separated the
Officers Oath and the Enlistment Oath, requiring officers, and only officers, in
the civil, military or naval departments of the United States, to swear that they
had never supported the Confederacy (the so-called Test Oath) in a formulation
that re-enacted and expanded the original Officers Oath prescribed by the Act of
June 1, 1789. 17 Congress repealed the Test Oath in stages, finally eliminating it in
1884,18 but the basic Officers Oath and the Enlistment Oath remained separate.
When Congress enacted the modern Officers Oath in 1962, its terms, except
for punctuation changes, were identical to the core provisions of the 1862 Act:
I, AB, do solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, foreign and
17
Act of July 2, 1862, ch. 128, 12 Stat. 502 (1862):
I, A. B., do solemnly swear (or affirm) that I have never voluntarily borne
arms against the United States since I have been a citizen thereof; that I have
voluntarily given no aid, countenance, counsel, or encouragement to persons
engaged in armed hostility thereto; that I have neither sought nor accepted
nor attempted to exercise the functions of any office whatever, under any
authority or pretended authority in hostility to the United States; that I have
not yielded a voluntary support to any pretended government, authority,
power or constitution within the United States, hostile or inimical thereto.
And I do further swear (or affirm) that, to the best of my knowledge and
ability, I will support and defend the Constitution of the United States,
against all enemies, foreign and domestic; that I will bear true faith and
allegiance to the same; that I take this obligation freely, without any mental
reservation or purpose of evasion, and that I will well and faithfully
discharge the duties of the office on which I am to enter, so help me God.
(emphasis added). The italicized portion of this formula continues to serve as the
Officers Oath today. See infra text accompanying note 19.
18
Act of May 13, 1884, ch. 46, 23 Stat. 22 (1984).
10
domestic; that I will bear true faith and allegiance to the same; that I
take this obligation freely, without any mental reservation or purpose
of evasion; and that I will well and faithfully discharge the duties of
the office on which I am about to enter. So help me God.
5 U.S.C. 3331. 19 The modern Enlistment Oath similarly followed the 1862 statute
in committing service members to obey the orders of the President, and does not
require them to support and defend the Constitution. 20
The District Court nevertheless treated the Officers Oath as if it were
identical in substance to the Enlisted Oathrequiring Captain Smith to obey the
commands of the President rather than support and defend the Constitution. In
doing so, the court ignored the plain language of the statutes and violated both the
well-established canons requiring courts to heed significant variations in texts and
counseling against reading one statutory provision as if it were a carbon-copy of
another. 21
In turning its back on history and text, the District Court appealed to a single
Supreme Court decision: Cole v. Richardson. 22 But the meaning of the Officers
Oath was in no way involved in Richardson. This 1972 decision involved a
challenge to a McCarthy-era Massachusetts statute requiring all state employees to
19
Act of July 2, 1862, ch. 128 (emphasis added).
20
10 U.S.C. 502(a).
21
See Antonin Scalia & Bryan Garner, Reading Law, 170-73, 174-79 (2012)
(material variation canon and rule against surplusage).
22
405 U.S. 676, 684 (1972).
11
take a loyalty oath pledging themselves to oppose the overthrow of the
government of the United States of America or of this Commonwealth by force,
violence or by any illegal or unconstitutional method. 23
This broad prohibition raised obvious vagueness and due process questions.
The District Court construed the statutory language to avoid reaching these
questions. It held that the Massachusetts oath was not so vague as to amount to a
violation of due process because it did not impose obligations of specific,
positive action on oath takers. 24 In relying on Richardson, the District Court failed
to appreciate the avoidance principle motivating the Supreme Courts
interpretation of the Massachusetts oath. It erroneously viewed Richardson as
establishing a one-size-fits-all formula for oathsstate and federal, civilian and
military citing it for the proposition that the Officers Oath has been interpreted
to mean simply a commitment to abide by our constitutional system. 25
The District Courts fear that a different interpretation of the Oath would
open the floodgates to self-help disobedience (App. 76) is unfounded. Indeed, it
is only the denial of standing that may have this impact. After all, Smith has
consistently affirmed that he will obey orders to support OIR pending final
resolution of this case. In contrast, if Smith is denied his day in court,
23
Id. at 678.
24
Id. at 684-85.
25
Id. at 677-78.
12
conscientious officers will immediately confront the dilemma posed by their
Oathsand some may respond by disobeying the Presidents commands even at
the risk of court-martial. 26 It follows that the District Court got it precisely
backwards: Military discipline serves as a reason for granting Captain Smith
standing, not denying it.
B. Little Requires Officers To Disobey the Presidents Orders When

They Exceed His Powers as Commander-In-Chief.
Captain Smith has standing not only under 3331 but under the Supreme
Courts decision in Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804). Written by
Chief Justice Marshall for a unanimous Court, the case established that a military
officer must disobey orders of the President that are beyond his statutory authority.
In Joseph Storys words:
The officers of [the three branches of government] are equally bound

by their oaths of office to support the constitution of the United States,
and are therefore conscientiously bound to abstain from all acts,
which are inconsistent with it. Whenever, therefore, they are required
to act in a case, not hitherto settled by any proper authority, these
26
The current Army Manual states that disobedience to an order is excused only if
the accused knew it to be unlawful or a person of ordinary sense and
understanding would have known it to be unlawful. See Dept of the Army,
Manual for Courts-Martial, RMC 916(d), at II-110 (2012 ed.). It is unnecessary to
speculate how particular courts-martial would apply this standard in the case of
oath-motivated acts of disobedience. It is enough to say that Smith and other
officers would have to gamble that their disobedience would generate a guilty
verdict.
13
functionaries must, in the first instance, decide, each for himself,

whether, consistently with the constitution, the act can be done. 27
Little arose out of the Quasi War, an undeclared and limited war fought
almost entirely at sea between the United States and the French Republic from
1798 to 1801. The French Republic, believing that the United States had sold out
to Great Britain in the Jay Treaty of 1794, unleashed its warships and privateers
on American commerce. 28 Among several countermeasures, Congress authorized
President John Adams to order U.S. naval officers to stop any American ship they
believed to be bound for a French port, and to seize the ship if, upon searching it, it
appeared to be so bound.
President Adams, however, ordered his commanders to seize American
vessels coming from France as well as those going to France. Pursuant to those
orders, George Little, commander of the U.S. frigate Boston, seized the Flying
27
1 Joseph Story, Commentaries on the Constitution of the United States bk. III,
374, at 345 (1833); see also Major R. Davis Younts, Orders and the Oath:
Understanding a Military Officers Duty to Support and Defend the Constitution,
39 Reporter 43, 45 (2012) (The formation of a military that falls under the
authority of elected civilians, but swears an oath of loyalty to the Constitution
rather than to an individual or a position, raises a potential concern for military
officers. Loyalty to the Constitution might require them to disobey or disregard the
orders of the President as Commander-in-Chief.); David M. Driesen, Toward a
Duty-Based Theory of Executive Power, 78 Fordham L. Rev. 71, 85 (2009) ([T]he
General Oath Clause requires federal officials to disobey the President when he
orders them to violate the law.).
28
See Donald R. Hickey, The Quasi-War: Americas First Limited War, 1798-
1801, 18 The Northern Mariner/le marin du nord, nos. 3-4, 2008, at 69.
14
Fish, a vessel carrying Danish papers and sailing from a French port, and sought to
have her condemned. Little was unaware of the statute circumscribing the
Presidents authority.
Professor Michael J. Glennon describes the issue before the Justices:
The central issue in the condemnation proceedings was not whether

the Flying Fish should be condemned; Chief Justice Marshall agreed
with the courts below that the seizure of a neutral vessel was
unlawful. Rather, the issue was whether the Danish owners of Flying
Fish should be awarded damages for the injuries they suffered.
Littles defense was that he merely followed orders, and that those
orders excused him from liability. Because the Flying Fish fell
squarely within the class of ships that the President had ordered
seized, the Supreme Court had to consider whether the President's
orders immunized his officer personally from an action for damages
arising under the statute. 29
The Supreme Court rejected Littles following orders defense. It stated
that President Adams instructions cannot change the nature of the transaction, or
legalize an act which without those instructions would have been a plain
trespass. 30 Accordingly, [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. 31
29
Michael J. Glennon, Two Views of Presidential Foreign Affairs Power: Little v.
Barreme or Curtiss-Wright, 13 Yale J. Intl L. 5 (1988) [hereinafter Glennon, Two
Views]. The Supreme Court cited Professor Glennons article with approval in
Zivotosky II, 135 S. Ct. at 2090.
30
6 U.S. (2 Cranch) at 179.
31
Id.
15
The facts of the present case are strikingly similar to those confronting the
Little Court. As in Little, Congress carefully limited the Presidents powersin
Captain Littles case, through a specific statutory enactment, and in Smiths case,
through the WPR, which requires a specific congressional enactment. As in Little,
the Presidents orders exceed the limits set by Congress, expanding the United
States risk of involvement in hostilities significantly beyond what Congress had
contemplated. 32 Unlike Captain Little, however, Captain Smith is aware of the
statute limiting the Presidents authority, and thus knew the question he
confronted: Should I obey Congress or the President, where the President has
exceeded the authority granted by Congress? The Marshall Courts answer in
Little was clear and unequivocal: Officers have an overriding obligation to follow
Congress, even at the cost of disobeying the President.
In modern times, the Supreme Court, in Butz v. Economou 33 and, more
recently in Zivotofsky II, 34 has twice affirmed the continuing vitality of the
foundational principle expounded by Little. But the District Court ignored the key
discussion of Little in Zivotofsky II 35 and quoted a sentence of dicta from Butz as if
it disposed of the very different problems raised by Smiths case. In the courts
32
Glennon, Two Views, at 7.
33
438 U.S. 478 (1978).
34
For further discussion of the key passage, see text accompanying notes 64 to 67.
35
App. 76.
16
view, Butz cited Little to establish that a federal official [is] protected for action
tortious under state law only if his acts were authorized by controlling federal
law. 36 It therefore concluded that Little does not stand for the proposition, as
Smith argues, that military personnel have a duty to disobey orders they believe are
beyond Congressional authorization. 37
The District Courts cramped reading is unjustified. In speaking for the
Court, Justice White also explained that the decision stood for the general rule,
which long prevailed, that a federal official may not with impunity ignore the
limitations which the controlling law has placed on his powers. 38
The choice between the broad and narrow readings of Butz requires a fuller
account of the facts than the District Court provided. Butz did not involve the
obligations of military officers to Congress, but a very different issue. The case
was brought by a private party against officials in the Department of Agriculture
who, the litigant alleged, had brought administrative actions against him in
retaliation for his criticism of the agency, and had thereby violated the First
Amendment. The lower court dismissed the suit on the ground that the government
officials had absolute immunity. The Supreme Court disagreed, holding that these
36
App. 76 (citing Butz, 438 U.S. at 490).
37
App. 76.
38
438 U.S. at 489-90.
17
federal officers only had a qualified immunity against damage actions for asserted
constitutional violations.
In reaching this conclusion, Justice White invoked Little for what he called
the general rule, under which a federal official who acted outside of his federal
statutory authority would be held strictly liable for his trespassory acts. 39 But Butz
by no means ruled that Little stands only for that proposition, especially where
the special duties of military officers to follow congressional commands are
concerned.
Nevertheless, the District Court ignored the special facts raised by Butz, and
treated a single sentence of dicta as if it were dispositive in Smiths case.
The District Court also cited this Courts decision in United States ex rel.
New v. Rumsfeld 40 to support its view that in the post-Little era . . . there is no
right, let alone a duty, to disobey military orders simply because one questions the
Congressional authorization of the broader military effort. (App. 76.) As with
Butz, the District Court placed more weight on New than the case will bear.
In New, this Court affirmed the District Courts dismissal of a service
members habeas petition collaterally attacking his court-martial conviction for
disobeying a lawful command. The command was to wear a certain uniform on his
39
Id.
40
448 F.3d 403 (D.C. Cir. 2006).
18
deployment to the Republic of Macedonia as part of the United Nations Preventive
Deployment Force. One of News claims was that the deployment itself was
unlawful because the President had not obtained what he viewed as requisite
congressional authorization. This Court found that News deployment claim
presented a non-justiciable political question in the special context of a court-
martial, even though that application might be highly contestable in another
context. 41 Nothing in New vitiates Little in a challenge to a deployment order in
an otherwise properly framed civil suit. 42
C. Captain Smith Has Standing Under the Oath-Taker Cases.
Board of Education of Central School District No. 1 v. Allen 43 further
supports Smiths claim. The Supreme Court held that a civilian official in Captain
Smiths position has standing to seek declaratory relief. Local Boards of Education
in New York challenged a state law requiring school districts to provide textbooks
to parochial school students as violative of the Establishment and Free Exercise
Clauses. Like Smith, Board members had to choose between enforcing the law and
sacrificing their official positions.
The Court held that the Boards had standing:
41
Id. at 411.
42
Id.
43
392 U.S. 236 (1968).
19
Appellants have taken an oath to support the United States

Constitution.
Believing s 701 to be unconstitutional, they are in the position of

having to choose between violating their oath and taking a step
refusal to comply with s 701 that would be likely to bring their
expulsion from office and also a reduction in state funds for their
school districts. There can be no doubt that appellants thus have a
personal stake in the outcome of this litigation. 44
The Allen doctrine was reaffirmed by the Supreme Court in 1986 in Bender
v. Williamsport Area School District, 45 and was followed by the District Court of
this Circuit in an opinion by Chief Judge Lamberth, in Clarke v. United States. 46 In
Clarke, Judge Lamberth held that, under Allen, the members of the D.C. Council
had standing to challenge the constitutionality of a federal law that required the
Council to amend a D.C. law, on pain of losing all federal funds. 47 This Court
affirmed. 48
The District Court, however, stated that it found persuasive the opinions of
various Courts of Appeals that have questioned whether such oath-taker cases
would still be considered sufficiently concrete under modern Supreme Court
44
Id. at 249 n.5 (citing Baker v. Carr, 369 U.S. 186, 204 (1962)).
45
475 U.S. 534, 545 (1986) (applying Allen but finding no standing).
46
705 F. Supp. 605 (D.D.C. 1988).
47
Id. at 608.
48
886 F.2d 404 (D.C. Cir. 1989), rehg denied, 898 F.2d 161, vacated as moot, 915
F.2d 699 (1990).
20
standing precedent. 49 But in the only case cited by the District Court, Drake v.
Obama, 50 the Ninth Circuit was bound by its pre-Bender decision in City of South
Lake Tahoe v. California Tahoe Regional Planning Agency. 51 Judge Lamberth
specifically declined to follow Lake Tahoe because the Supreme Court . . .
subsequently reaffirmed Allen in Bender. 52
The District Court also likened this case to the oath of office case presented
in Rodearmel v. Clinton. 53 In that case, Rodearmel, a Foreign Service Officer,
challenged as unconstitutional then-Secretary of State Hillary Clintons
appointment and continuance in office. Rodearmel alleged that he had Article III
standing under Allen and Clarke because he was forced to choose between, on the
one hand, serving under the Secretary and violating his commissioning oath to
support and defend the Constitution, and, on the other hand, refusing to serve the
Secretary and placing himself at substantial risk of sanctions. A three-judge panel
found Rodearmels reliance on Allen and Clarke misplaced:
In contrast to the plaintiffs in Allen and in Clarke, Rodearmel has not

alleged that he has been required to take any action that he believes is
49
App. 79.
50
664 F.3d 774 (9th Cir. 2011).
51
625 F.2d 231 (9th Cir. 1980).
52
705 F. Supp. at 608 n.4. In its motion to dismiss, the government also relied on
the Fifth Circuits decision in Crane v. Johnson, 783 F.3d 244 (5th Cir. 2015), but
there, too, the circuit court was bound by a pre-Bender decision, Finch v.
Mississippi State Med. Assn, Inc., 585 F.2d 765 (5th Cir. 1978).
53
666 F. Supp. 2d 123 (D.D.C. 2009).
21
itself unconstitutional and that would therefore lead him to violate his
oath of office. In both Allen and Clarke, the plaintiffs either had to
take an action that they believed violated the Constitution or risk a
concrete injury. Rodearmel, on the other hand, merely alleges that
serving under, taking direction from, and reporting to Clinton would
be contrary to his oath of office without alleging the specific
constitutional violation that he believes he would be committing by
remaining under her supervision. 54
Captain Smith, by contrast, has been ordered to take an action
supporting OIRthat he believes exceeds the Presidents authority, in violation of
the WPR, and, hence, violates Captain Smiths oath of office.
II. THIS CASE DOES NOT RAISE A POLITICAL QUESTION.
The District Court advanced three reasons for invoking the political
question doctrine. First, certain aspects . . . are . . . completely committed to the
political branches of government. Second, factual questions . . . are not of the
type that the Court is well-equipped to resolve. Third, this case does not present
a dispute between the two political branches regarding the challenged action.
(App. 89-91.)
All three holdings fail to recognize the judiciarys supreme responsibility,
under Youngstown, to safeguard the equilibrium established by our constitutional
system, when presidential power is at its lowest ebb. 55
54
Id. at 130 (citations omitted).
55
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J.,
concurring).
22
Sitting en banc, this Court did not challenge this key Youngstown principle
in El-Shifa Pharmaceutical Industries Co. v. United States. 56 The Court stated:
[W]e have distinguished between claims requiring us to decide

whether taking military action was wisea policy choice[ ] and
value determination [ ] constitutionally committed for resolution to
the halls of Congress or the confines of the Executive Branchand
claims [p]resenting purely legal issues such as whether the
government had legal authority to act. The political question doctrine
bars our review of claims that . . . call into question the prudence of
the political branches in matters of foreign policy or national security
constitutionally committed to their discretion. 57
Captain Smiths case squarely [p]resent[s] purely legal issues such as whether
the government had legal authority to act.
Since El-Shifa was decided in 2010, the Supreme Court further reinvigorated
Youngstown, and its application to Little v. Barreme, in Zivotofsky II in 2015.
While Zivotofsky IIs statement of principle plays a key role in the following
argument, it is unnecessary to consider the extent to which it requires a revision of
El Shifas restrictive approach to Youngstownsince, as we shall show, its
concerns about judicial fact-finding capacities are not applicable in the present
case.
56
607 F.3d 836 (2010).
57
Id. at 842. See generally, Chris Michel, Comment, Theres No Such Thing as a
Political Question of Statutory Interpretation: The Implications of Zivotofsky v.
Clinton, 123 Yale L.J. 1253 (2014).
23
A. The District Court Ignored Youngstown in Determining Whether

the Case Raises Issues Completely Committed To The Political
Branches.
The Court rightly treats Baker v. Carr as a leading source for general
standards governing the political question doctrine. But it entirely ignored our
claim that Youngstown also serves as a crucial precedent.
Baker involved reapportionment, but Youngstown dealt with the Presidents
powers over foreign affairs and his authority as commander-in-chief. In Smiths
case, as in Youngstown, Congress explicitly limited these powers by statute in the
WPR. Youngstown refutes the District Courts assertion that Smiths challenge
raises questions that are completely committed to the political branches. 58
In Youngstown, the Supreme Court rejected President Harry Trumans claim
that, as commander-in-chief, he could disregard the Taft-Hartley Act to guarantee
the continued steel production he deemed essential for the on-going war in Korea.
The case is best known for Justice Jacksons concurrence breaking down
presidential power into three categories. Category One involves situations in which
the President acts under the authority of particular provisions in Article II. There,
his unilateral powers are at a maximum. Category Two represents a twilight zone
in which the President and Congress can both make colorable claims to authority.
In Category Three, the Presidents power is at its lowest ebb, since he is acting in
58
App. 89.
24
a manner incompatible with the. will of Congress. In these cases, courts must
scrutinize[] presidential assertions of power, since what is at stake is the
equilibrium established by our constitutional system. 59
Justice Jacksons concurrence played a central role in framing congressional
debate over the WPR. In its Report on the Resolution, the Senate Foreign Relations
Committee explicitly rested on Justice Jacksons concurrence:
As the late Supreme Court Justice H. Robert Jackson pointed out in

his concurring opinion in Youngstown Steel Corp. v. Sawyer, there is a
discrete zone of twilight between the discrete areas of Presidential
and Congressional power. Politics, like nature, abhors a vacuum.
When Congress created a vacuum by failing to defend and exercise its
powers, the President hastened to fill it. As Justice Jackson
commented, Congressional inertia, indifference or quiescence, may
sometimes, at least as a practical matter, enable, if not invite,
measures on independent Presidential responsibility. [citing
Youngstown, 343 U.S. 579 (1952)]. 60
To assert power is not, however, to legitimize it. 61
As the Report emphasizes, the WPR aims to move the Presidents war
powers from Category Two to Category Threetaking it out of the twilight zone
and making it clear that, henceforth, the commander-in-chiefs power is at its
lowest ebb if he should ever defy the WPRs strict time limits on unilateral
59
Youngstown, 343 U.S. at 638.
60
This passage from Youngstown can be found in the final paragraph of Justice
Blacks opinion of the Court, id. at 589.
61
S. Rep. No. 93-220 at 15 (1973).
25
presidential war making. To make this even clearer, the Committee begins its
Report with this statement by Jacob Javits, the Resolutions sponsor:
My cosponsors and I regard this bill as basic national security

legislation . . . .We live in an age of undeclared war, which has meant
Presidential war. Prolonged engagement in an undeclared Presidential
war has created a most dangerous imbalance in our Constitutional
system of checks and balances. . . . [The bill] is rooted in the words
and the spirit of the Constitution. It uses the clause of Article I,
Section eight to restore the balance which has been upset by the
historical enthronement of that power over which the framers of the
Constitution regarded as the keystone of the whole Article of
Congressional power the exclusive authority of Congress to declare
war; the power to change the nation from a state of peace to a state of
war. 62
This theme was elaborated time and again in the course of congressional
deliberations. 63
Given its centrality to Smiths case, the District Courts failure to discuss
Youngstown is especially remarkable in light of the Supreme Courts recent
decision in Zivotofsky II. Zivotofsky II involved a Category One case. There, the
Court struck down limits that Congress tried to place on presidential powers
expressly conferred by the Reception Clause, granting the President exclusive
62
S. Rep. No. 93-220 at 2 (1973).
63
See H.R. Rep. No. 93-287 at 4 (1973) (the parallel House Committee Report).
These fundamental points reemerged during the debates leading to the override of
President Nixons veto. See, e.g., 119 Cong. Rec. 36,202 (1973) (statement of Rep.
Zablocki); 119 Cong. Rec. 33,859-60 (1973) (statement of Rep. Broomfield).
26
power to extend recognition to foreign nations. 64 Writing for the Court, Justice
Kennedy warned against an expansive reading of its decision. Not only did he
reject the governments claim to broad, undefined powers over foreign affairs. 65
He cautioned future courts to recognize that:
In a world that is ever more compressed and interdependent, it is

essential the congressional role in foreign affairs be understood and
respected. For it is Congress that makes laws, and in countless ways
its laws will and should shape the Nation's course. The Executive is
not free from the ordinary controls and checks of Congress merely
because foreign affairs are at issue. See, e.g., Medelln v. Texas, 552
U.S. 491, 523532(2008); Youngstown, 343 U.S. at 589; Little v.
Barreme, 2 Cranch 170, 177-79. 66
While the District Court cites Zivotofsky II for other purposes, it ignores its
reaffirmation of Youngstown and its explicit pairing with Littles demand that the
President obey congressional limitations on his power as commander-in-chief. This
failure to engage in the requisite Category Three scrutiny undermines the District
Courts broad assertion that Captain Smiths challenge raises issues completely
committed to the political branches.
64
Const. art. II, 3, cl. 4.
65
135 S. Ct. at 2090.
66
Id. Three of the dissenting Justices embraced Little just as firmly. See id. at 2114
(Roberts, C.J., joined by Alito, J., dissenting); id. at 2125 (Scalia, J., joined by
Roberts, C.J., and Alito, J., dissenting). Justice Thomas did not address the issue.
27
B. This Case Does Not Involve Factual Questions Which the

Judiciary Is Poorly Equipped To Resolve.
Section 5(b)(3) of WPR is a key provision. It requires the President to obtain
specific statutory authorization from Congress within sixty days of his initiation
of hostilities. If he fails, he must terminate operations within the next thirty
days. 67
This provision came into play on September 10, 2014, when President
Obama announced an open-ended campaign against ISIL in a televised address to
the nation. 68 He followed up with a letter to Congress on September 23rd. 69 Since
the September 10 speech triggered the 60/90 day deadline, President Obama was
required to withdraw American forces by December, 2014, making the ongoing
activities of OIR illegal under the WPR. This is the critical factual finding that
serves as the basis of the current appeal. 70 The District Court made the letter a
centerpiece of its analysis, singling out the following paragraphs:
I have directed these actions, which are in the national security

and foreign policy interests of the United States, pursuant to my
constitutional and statutory authority as Commander in Chief
67
War Powers Resolution 5(b)(3), 50 U.S.C. 1544(b)(3).
68
See Press Release, Office of the Press Secy, Statement by the President on ISIL,
The White House (Sept. 10, 2014) (Press Release).
69
See President Barack H. Obama, Letter to Congressional Leaders Reporting on
the Deployment of United States Armed Forces Personnel to Iraq and the
Authorization of Military Operations in Syria (Sept. 23, 2014) [hereinafter Obama
Letter].
70
See Press Release.
28
(including the authority to carry out Public Law 10740 and Public
Law 107243) and as Chief Executive, as well as my constitutional
and statutory authority to conduct the foreign relations of the United
States.
I am providing this report as part of my efforts to keep the

Congress fully informed, consistent with the War Powers Resolution
(Public Law 93148). I appreciate the support of the Congress in this
action. 71
This letter asserts that the War falls within the authorizations enacted by
Congress more than a decade earlier, so there was no need to obtain the specific
authorization of the 2014 Congress required by Section 5(b)(3). This is the legal
point of the Presidents references (in a parenthetical) to the 2001 AUMF targeting
Al Qaeda in Afghanistan and the 2002 Iraq AUMF targeting Saddam Husseins
regime. During his remaining time in office, the President never provided more
than these bare assertions of legal authority.
The District Court refused to evaluate these presidential claims on the
ground that they required fact-finding that judges are not well-equipped to
resolve. 72 This holding is erroneous. Youngstown scrutiny requires the use of
standard techniques of statutory interpretation. No elaborate fact-finding is
required to find that the AUMFs of 2001 and 2002 do not amount to the specific
statutory authorization required by the WPR, or give the President a blank
check for war.
71
App. 65, citing Obama Letter, supra (emphasis added).
72
App. 96.
29
Before proceeding to the AUMFs, one additional provision of the WPR
requires attention. Section 8(c) specifies the types of American military
involvement that initiate hostilities triggering the sixty-day period for obtaining
congressional consent. It defines the introduction of United States Armed Forces
to include:
the assignment of member[s] of such armed forces to command,

coordinate, participate in the movement of, or accompany the regular
or irregular military forces of any foreign country or government
when such military forces are engaged, or there exists an imminent
threat that such forces will become engaged, in hostilities. 73
This broad definition comes into play in assessing one factual statement
made by President Obama in his September 10th speech announcing the campaign
against ISIL. He reassured the nation that his intervention would not involve
American combat troops fighting on foreign soil. 74 But given the broad terms of
Section 8(c), this does not suffice to escape the 60/90 day timetable imposed by the
WPR. OIR plainly involves the use of combat-ready air and ground forces to
accompany the regular or irregular forces of the Iraqi army or Syrian
opposition in ways that assist their engagement in hostilities. No controversial
fact-finding is required to make this pointit is conceded on all sides. It suffices to
trigger Section 8(c).
73
WPR, 8(c) (App. 28), 50 U.S.C. 1547(c) (emphasis added).
74
Obama Letter, supra.
30
C. The 2001 and 2002 AUMFs Do Not Authorize Hostilities

Against ISIL.
1. The 2002 AUMF.

Section 3(a) of the 2002 AUMF authorizes the President to introduce
American forces as he determines to be necessary and appropriate to defend . . .
the national security of the United States against the continuing threat posed by
Iraq. This provision raises three problems of interpretation: One problem involves
the bare statutory question of whether a threat by Iraq includes a threat
emanating from Iraq; a second problem involves the Administrations assertions
regarding Syria; and a final problem involves its assertions regarding Iraq.
A. Statutory Language. The District Court asserted, almost as
an afterthought, that the 2002 Iraq AUMF authorizes U.S. military operations in
Syria. 75 The court did not reason its way to that conclusion. Instead, it accepted
uncritically an Obama Administration officials bare assertion that even though the
AUMF by its terms authorizes the President only to address threats by Iraq, it
has always been understood to authorize U.S. military operations to address
threats emanating from Iraq. The official offered no support for his claim, and
the District Court did not scrutinize its factual basis. (The official asserted that
Congress has ratified this understanding through funding measures, a
justification we refute later in this brief.) Further analysis was demanded, to say the
75
App. 68.
31
least, because Congress wrote the statute it wrotemeaning, a statute going so
far and no further. 76
B. Iraq. On July 25, 2014, National Security Advisor Rice sent
a letter to the Speaker of the House which stated:
With American troops having completed their withdrawal from Iraq

on December 18, 2011, the Iraq AUMF is no longer used for any U.S.
government activities and the Administration fully supports its
repeal. 77
Rices letter was transmitted on July 25, 2014two months before the President
asserted, on September 23rd, that the 2002 AUMF made it unnecessary to gain the
consent of Congress.
The District Court failed to cite or discuss the Rice letter. If it had taken its
Youngstown responsibilities seriously, it should have treated the letter as
dispositive. Since the Administration had declared that the AUMF was no longer
operative after December 18, 2011, when American troops . . . completed their
withdrawal from Iraq, it could not serve as the specific congressional
authorization required under the WPR for the reintroduction of United States
Forces into the new round of hostilities against ISIL in 2014.
76
Michigan v. Bay Mills Indian Community, 134 S. Ct. 2024, 2033-34 (2014).
77
Letter from Susan E. Rice, Assistant to the President for Natl Sec. Affairs, to
John A. Boehner, Speaker, U.S. House of Representatives (July 25, 2014). (App.
55.)
32
This conclusion requires straightforward legal reasoning, without the need
for controversial findings of fact. Under the stringent scrutiny required by
Youngstown, the Presidents invocation of the 2002 AUMF cannot stand.
The District Courts failure to consider Ms. Rices letter is particularly
serious in light of its subsequent history. Since the letter was addressed to the
Speaker of the House, it was placed on the website of the House Foreign Affairs
Committeewhere it remained for many months, until it was removed without
notice sometime in 2015. 78 This remarkable removal of a critical document from
78
We retrieved Ms. Rices letter by means of the Internet Archive Wayback
Machine, which is an internet program that archives images of public websites.
Internet Archive Frequently Asked Questions, Internet Archive,
https://archive.org/about/faqs.php (last visited Feb. 11, 2017). The Internet Archive
Wayback Machine is operated by the Internet Archive, a non-profit organization
dedicated to offering permanent access for researchers, historians, scholars,
people with disabilities, and the general public to historical collections that exist in
digital format. About the Internet Archive, Internet Archive,
https://archive.org/about/ (last visited Feb. 11, 2017). The Internet Archive is a
lead partner for the digital preservation efforts of the Library of Congress. Internet
Archive, Library of Congress, http://www.digitalpreservation.gov/partners/ia.html
(last visited Feb. 11, 2017). Federal courts, including the U.S. District Court for the
District of Columbia, have cited to webpages archived by the Internet Archive
Wayback Machine. See, e.g., United States ex rel. Oliver v. Philip Morris USA,
101 F. Supp. 3d 111, 117-23 (D.D.C. 2015), affd, 826 F.3d 466 (D.C. Cir. 2016).
Federal prosecutors have used webpages archived by the Internet Wayback
Machine in the course of criminal prosecutions. See, e.g. United States v. Bansal,
663 F.3d 634, 667-68 (3d Cir. 2011). Before it was removed from the House
website, Ms. Rices letter was cited by Michael John Garcia & Jennifer K. Elsea,
Cong. Research Serv., R43720, U.S. Military Action Against The Islamic State:
Answers To Frequently Asked Legal Questions 8 n.42 (2014), and Gregory A.
Wagner, Note, Warheads on Foreheads: The Applicability of the 9/11 AUMF to
33
the public record only emphasizes the need for the judiciary to subject this critical
legal document to Youngstown scrutiny not only by this Court but by the
general public.
C. Syria. The 2002 AUMF also cannot justify continuing
hostilities against ISIL in Syria. Once again, the Rice letter makes it unnecessary to
engage in any controversial fact-finding. Since it establishes that the AUMF cannot
operate as specific authorization for renewed hostilities against ISIL in Iraq, it
follows a fortiori that it doesnt authorize military operations in Syria either.
2. The 2001 AUMF Does Not Authorize the War.
Immediately after September 11th, President George Bush proposed an
AUMF that would have granted him authority to deter and pre-empt any future
acts of terrorism or aggression against the United States. 79 But the congressional
leadership rejected this request. Instead, the House and Senate authorized the
President only to use all necessary and appropriate force against those nations,
organizations or persons he determines planned, authorized, harbored, committed,
or aided in the planning or commission of the attacks against the United States that
occurred on September 11, 2001 (emphasis added). Moreover, section 2(b) of the
the Threat of ISIL, 46 U. Mem. L. Rev. 235, 238 n.9 (2015)further confirming
the publication of the letter before its suppression.
79
For the text of President Bushs proposal, see 147 Cong. Rec. 9949 (Oct. 1,
2001) (statement of Sen. Byrd).
34
AUMF explicitly provided that [n]othing in this resolution supersedes any
requirement of the War Powers Resolution. 80 Instead of giving the President a
blank check, to use Justice OConnors phrase, 81 these provisions emphasize the
need for the President to return to Congress for specific authorization under the
WPR if he wished to initiate hostilities against organizations that were not
involved in the September 11th attacks.
This is precisely what President Obama failed to recognize in his September
23rd letter to Congress. Since ISIL did not exist on September 11, 2001, it is not an
organization that the President may target under the terms of the 2001 AUMF.
The plain meaning of these provisions demands special respect where, as here, the
congressional leadership rejected President Bushs original proposal precisely
because it would have authorized combat against terrorist organizations arising in
the future. As the Supreme Court has emphasized, there are [f]ew principles of
statutory construction . . . more compelling than the proposition that Congress does
not intend sub silentio to enact statutory language that it has earlier discarded in
favor of other language. 82 The Court has repeatedly invoked this canon against
80
2001 AUMF. (App. 45.)
81
Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (plurality opinion).
82
I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 442-43 (1987).
35
rejected proposals in cases, like the present one, in which Congress self-
consciously refused to accept the alternative. 83
Yet the District Court entirely failed to analyze the crucial statutory
language limiting presidential authority. It relied instead on a speech given by
Stephen Preston, General Counsel of the Department of Defense. 84 Prestons
speech, however, also failed to confront the plain language of the AUMF, despite
his concession that ISILs origins do not go back before 2003. He nevertheless
asserts that the scope of the AUMF may be expanded beyond its text to authorize
the President to designate ISIL either as an associated force or as otherwise
included within the war-making powers of the commander-in-chief.
But the term associated forces does not appear anywhere in the 2001
AUMF. The term appears in a government memorandum filed in one of the
83
See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 579 (2006); Bob Jones University
v. United States, 461 U.S. 574, 600-601 (1983). Since members of the House and
Senate were entirely aware of President Bushs initial AUMF proposal, the canon
still applies even though it was rejected before it reached the floor. See Mohamad v.
Palestinian Authority, 132 S. Ct. 1702, 1710 (2012).
84
Stephen W. Preston, General Counsel, U.S. Dept of Defense, The Legal
Framework for the United States' Use of Military Force Since 9/11, Address to the
Annual Meeting of the American Society of International Law (Apr. 10, 2015). As
reported on this website, Mr. Prestons speech is not paginated. As a consequence,
we follow the governments practice, and will quote from the speech without any
page citations.
36
Guantanamo Bay habeas cases in March 2009,85 and in the 2012 NDAA. In both
cases, the 2001 AUMF was invoked as authority to detain captivesnot to initiate
hostilities against organizations that did not exist on September 11, 2001. 86 Indeed,
in granting the President power to detain members of associated forces in 2012,
Congress self-consciously refused to authorize the initiation of hostilities against
associated forces that were not involved in the September 11th attacks.
The 2012 NDAA represents the only occasion on which Congress has self-
consciously addressed the question of expanding the scope of the 2001 AUMF.
Nevertheless, the District Court ignored our arguments directed to its significance.
The issue was at the heart of congressional deliberations. The House Armed
Services Committee adopted a provision that would have expressly expanded the
2001 AUMFs authority to include the initiation of hostilities. It expressly
affirmed the Presidents authority under the 2001 AUMF to target associated
forces of Al Qaeda or the Taliban that are engaged in hostilities against the
United States or its coalition partners or . . . have engaged in hostilities or have
85
Respondents Memorandum Regarding The Governments Detention Authority
Relative To Detainees Held At Guantanamo Bay, In re: Guantanamo Bay
Detainee Litigation, Misc. No. 08-442 (TFH) (D.D.C. Mar. 13, 2009), ECF No.
1689 (Respondents Memorandum).
86
Id. (Affirmation Of Authority Of The Armed Forces Of The United States To
Detain Covered Persons Pursuant To The Authorization For Use Of Military
Force.); Respondents Memorandum.
37
directly supported hostilities in aid of the original September 11th attackers. 87 But
when this provision reached the Senate, it was explicitly rejected and replaced by a
section which eliminated any language which could have expanded the Presidents
authority beyond his power to detain members of associated forces. 88
In short: In both 2001 and 2012, Congress self-consciously considered a
provision which would have expanded the Presidents power to engage in
hostilities against groups that came into existence after September 11and on both
occasions, it refused to endorse this major expansion of presidential authority. The
canon against rejected proposals applies with special force in cases of repeated
and deliberate congressional repudiation of an alternative approach. 89
President Obamas response to the 2012 NDAA is also relevant. When he
signed the bill into law, he issued a statement expressing serious reservations with
certain provisions that regulate the detention, interrogation, and prosecution of
87
See H.R. 1540, Section 1034, 3(A) and 3(B) (emphasis added).
88
The Senates replacement, Section 1021, states that the authority of the
President to use all necessary and appropriate force pursuant to the [2001 AUMF]
includes the authority for the Armed Forces of the United States to detain covered
persons (as defined in subsection (b)) pending disposition under the law of war.
The covered persons include [a] person who was a part of or substantially
supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities
against the United States. See 157 Cong. Rec. S8235 (daily ed. Dec. 5, 2011).
89
See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 155-56 (2000);
Flood v. Kuhn, 407 U.S. 258, 283 (1972).
38
suspected terrorists. 90 He did not complain about the NDAAs refusal to expand
his war-making powers under the 2001 AUMF.
All this changed on September 23, 2014, when the President sent his letter to
Congress asserting that the 2001 AUMF would now serve as authority to initiate
hostilities against ISIL. Nevertheless, the District Court relied on Prestons claims
without confronting the fact that, both in 2001 and 2012, Congress had explicitly
restricted the Presidents war-making authority to organizations that had existed
at the time of the September 11 attacks. The courts uncritical reliance on Prestons
assertions fails to satisfy the scrutiny demanded by Youngstown. It should be
reversed.
D. The District Court Erred in Giving Authoritative Status to

Stephen Prestons Speech Justifying the War
In its argument below, the government identified Stephen Prestons speech
as though it is an authoritative statement of the Obama Administrations position.
Undoubtedly, this is why the District Court relied on it so heavily.
The speech is not entitled to this status. In contrast to National Security
Adviser Rices letter, Mr. Prestons talk was not directed to Congress. It was
delivered to the American Society of International Law at its annual meeting on
April 10, 2015. Moreover, the content and context of the speech demonstrates that
it was not presented as an official position of the Administration.
90
Statement of the President on H.R. 1540 (Dec. 31, 2011).
39
For starters, the speech makes no claim to official status. Preston expressed
gratitude to my colleagues in government, who have contributed to my remarks,
but he did not say they endorsed them. 91 Moreover, when Preston went before the
Senate Foreign Relations Committee the year before, he did not claim any such
authoritative status. Instead, he was one of two representatives of the Obama
Administration, who appeared on a panel with two other distinguished lawyers
who had previously served President Obama or President Bush. 92 When he was
91
See Preston, supra note 85.
92
The other witnesses were Mary McLeod from the State Departments Legal
Advisers Office, Harold Koh, who had previously served as the Departments
Legal Adviser, and Michael Mukasey, formerly Attorney General under President
Bush. Mr. Mukasey was the last of the four to testify, and specifically remarked on
the legal somersaults exhibited by the previous witnesses. Id. at 459, 52-53.
Throughout the hearing, both Democratic and Republican Senators expressed
similar impatience at the obscurities generated by the witness testimony. See id. at
18 (Sen. Corker); id. at 24 (Sen. Rubio); id. at 20 (Sen. Kaine); id. at 27 (Sen.
Johnson); id. at 34 (Sen. Murphy. Chairman Robert Menendez summed up these
concerns:
[U]nder the War Powers Act, there would be an action by the
President, but, within a certain time period, there would have to be a
response from the Congress[W]hile I believe in Security Council
resolutions to create international support , I am still concerned that,
when we want to participate under such an umbrella, that there must
be an authorization of the Congress to do so if it is not an imminent-
threat situation.
So, I would like you to all go rethink that and come back to define
for us what your view is. It may not be my view, but I would like to
hear what your view is.
Id. at 34-35.
40
explicitly asked whether the President had authority to initiate hostilities against
ISIL, he refused to commit himself. 93
Moreover, there is a special statute, 28 U.S.C. 513, which raises a special
problem for Defense Department lawyers claiming to serve as Administration
spokesmen. This provision requires the DOD to send all questions of law arising
in the administration [of its affairs] . . . to the Attorney General for disposition,
except where otherwise provided by statute. 94 No similar demand is imposed on
any other department. This exceptional treatment reflects the pervasive
commitment to civilian control over the military that has characterized American
arrangements since the Founding.
In taking to the podium at the American Society of International Law,
Preston was not challenging these principles. Like other Administration lawyers in
93
See Authorization for Use of Military Force After Iraq and Afghanistan:
Hearing Before the S. Comm. on Foreign Relations, 113th Cong. 459, at 17 (2014)
(colloquy with Senator Corker).
94
See 28 U.S.C. 513:
When a question of law arises in the administration of the Department
of the Army, the Department of the Navy, or the Department of the
Air Force, the cognizance of which is not given by statute to some
other officer from whom the Secretary of the military department
concerned may require advice, the Secretary of the military
department shall send it to the Attorney General for disposition.
See generally, 28 U.S.C. 511-513.
Trevor Morrison, Dean of NYU Law School, who served as Associate White
House Counsel to President Obama, notes the exceptional character of the
treatment of the Defense Department at Constitutional Alarmism, 124 Harv. L.
Rev. 1688, 1710 & n.82 (2011).
41
the past, he was engaged in an educational missionkeeping the legal community
abreast of contemporary developments. As he explained, he was using his speech
to update his audience on the legal authority for U.S. military operations as the
mission has evolved over the past year or so. But this update did not confront,
let alone resolve, the hard legal questions raised by the text and history of the two
AUMFsthis would have made the speech much too long and tedious.
Mr. Prestons speech is only one of many informal efforts by government
spokesmen to provide rationalizations for the Presidents September 23rd letter to
Congress. We analyzed the conflicting statements from the Obama Administration
in our presentation to the District Court. This cacophony is the product of an
institutional failure of major importance. During the three remaining years of the
Obama Administrations escalating warfare against ISIL, the OLC failed to publish
a serious opinion explaining why the 2001 and 2002 Iraq AUMFs, authorized the
Presidents decision to take an end-run around Congress in 2014.
The OLCs silence is especially revealing when viewed in the context of the
Administrations previous encounter with the WPR in 2011. This was the moment
when President Obama unilaterally ordered military operations against the
Khaddafi regime in Libya. As in the present case, the President did not believe that
the WPR required him to gain congressional approval, and asked the opinion of the
OLC whether he was correct. After studying the matter, the OLC prepared an
42
opinion which determined that the Presidents views were incorrect, and that he
was indeed obliged to gain the specific congressional authorization required by
the WPR. 95
In response, the President refused to allow the OLC to publish its opinion
and turned instead to his White House Counsel, who approved a more supportive
opinion prepared by the Legal Advisor of the State Department, which was
published just before the ninety-day deadline. 96
This opinion predictably proved controversial. But it served a crucial
constitutional function: it assured Congress, and the broader public, that the
Administration was making a serious effort to comply with its responsibility to
take care that the laws be faithfully executed. In contrast, the silence of these
legal watchdogs in this case speaks louder than words. It requires the judiciary to
take its Youngstown responsibilities even more seriously. Rather than treating an
unofficial speech before a scholarly society as authoritative, Youngstown requires
an extraordinary level of scrutiny when the Office of Legal Counsel has failed to
95
WPR 5(b)
96
See Trevor Morrison, Libya, Hostilities, the Office of Legal Counsel, and the
Process of Executive Branch Legal Interpretation, 124 Harv. L. Rev. F. 62, 65
(2011).
43
publish a legal opinion that presents a systematic analysis of the text and history of
the AUMFs that the President invoked to justify his end-run around Congress. 97
E. Congressional Funding of OIR Does Not Constitute the Specific

Authorization Required by the WPR.
Section 8(a)(1) of the WPR provides that congressional approval shall not
be inferred from any provision . . . contained in any appropriations Act, unless
such provision specifically authorizes the introduction of United States Armed
Forces into hostilities. This section played a key role in stabilizing the entire
statutory framework.
As Senator Eagleton, a co-sponsor of the Act, explained:
We have also categorically stated that appropriations measures cannot

simply imply congressional authorization to conduct war. If this
principle were accepted, the President could theoretically wage war
with impunity while confidently challenging each House to attempt to
97
This Court has recently emphasized the role of the OLC as principal guardian of
legality in the executive branch. See Citizens for Responsibility & Ethics in Wash.
v. United States, 846 F.3d 1235, 1238 (D.C. Cir. 2017):
For decades, [the Office of Legal Counsel (OLC) ] has been the most
significant centralized source of legal advice within the Executive
Branch. Trevor W. Morrison, Stare Decisis in the Office of Legal
Counsel, 110 Colum. L. Rev. 1448, 1451 (2010). Indeed, executive-
branch officials seek OLCs opinion on some of the weightiest matters
in our public life: from the presidents authority to direct the use of
military force without congressional approval, to the standards
governing military interrogation of alien unlawful combatants, to
the presidents power to institute a blockade of Cuba. Office of Legal
Counsel . . . .
44
muster a two-thirds majority to stop him. Such a situation is not only

extremely dangerous but, in effect, it turns our carefully devised
system of checks and balances on its head. 98
The Senate Committee on Foreign Relations also emphasized that Section 8(a)(1)
played a key role in avoid[ing] any ambiguities such as possible efforts to
construe general appropriations or other such measures as constituting the
necessary authorization for continued use. 99
The Committees concern about misinterpreting general appropriations . . .
measures is dramatized by the present case. The NDAAs for each of the fiscal
years of 2014, 2015, and 2016 appropriated about $70 billion to the Departments
of Defense and State for an extraordinary variety of programsranging from
Migration and Refugee Assistance to the Afghan Security Forces Fund. Yet the
NDAA for 2014 dedicated less than one billion to support the War. During each of
the next two years, War-related expenditures accounted for less than four percent
of the total omnibus amount. 100
Within this context, the WPRs clear statement rule makes simple
common sense. Once the House and Senate reconcile their versions of an omnibus
98
War Powers Legislation, 1973: Hearings on S. 440 Before the S. Comm. on
Foreign Relations, 93d Cong. 115 (1973) (statement of Sen. Eagleton).
99
S. Rep. No. 93-220, at 29 (1973).
100
See Appendix A to Plaintiffs Memorandum in Opposition to Motion to
Dismiss: ISIS-Related Share of Omnibus Appropriations Acts provides the
supporting analysis of the data and analysis which supports this conclusion.
45
appropriations bill, members cast a single Yes or No vote on the entire
package. For a House or Senate vote to count as a specific authorization under
the WPR, Members should be focused on the critical issue of war and peace. But
they cannot be when members cast a single vote on an omnibus appropriation
devoted overwhelmingly to other projects. Expressing this fact, Congresss rules
prohibit the use of appropriations as vehicles for substantive legislation. 101 The
Supreme Court has also emphasized that legislators voting on appropriations are
entitled to operate under the assumption that the funds will be devoted to purposes
which are lawful and not for any purpose forbidden. As a consequence, the canon
cautioning judges against implicit repeal of pre-existing legislation applies with
full vigor when . . . the subsequent legislation is an appropriations measure. 102
The WPRs clear statement rule in Section 8(a)(3) has obvious merit, but
it also carries a distinctive legal status. When courts create their own clear
statement rules, judges remain free to adapt and revise them when it seems
appropriate. But judges have no similar freedom when Congress imposes these
rules by express command.
101
See House Rule XXI.2, 2(b), (c), 114th Cong. (2015); Standing Rules of the
Senate XVI.4, 113th Cong. (2014).
102
See, Tennessee Valley Auth. v. Hill, 437 U.S. 153, 190 (1977). For a recent
application, see Moda Health Plan, Inc. v. United States, 130 Fed. Cl. 436 (2017).
46
Nevertheless, the District Court chose to ignore the WPRs statutory dictate,
and held that Congresss repeated decisions to fund the War demonstrated that the
political branches did not really disagree on the merits of OIR. This conclusion
served as the basis of the courts third and final rationale for invoking the political
question doctrine. In its view, Section 8(a)(1)s clear statement rule was only
relevant if it had reached the merits of Smiths complaint, but the District Court
simultaneously concluded it remained free to consider appropriations in
determining whether the lawsuit was justiciable in the first place. 103
This conclusion, however, can be no better than its premises. As we have
seen, Section 8(a)(1) serves as a fundamental element in implementing the WPRs
effort to eliminate the political question issue by shifting Presidential war-
making from Youngstown Category Two to Youngstown Category Three. It is only
by failing to recognize the central role that Justice Jacksons concurring opinion
played in guiding the formulation of the WPR that the District Court could suppose
that it could ignore the command of 8(a)(1) and insist that Congress was indeed
supporting the Presidents war against ISIL by its funding decisions.
But let us suppose, for purposes of the argument, that the District Courts
dismissal of the WPRs clear statement rule had a substantial legal foundation.
Nevertheless, its conclusion would not followbecause it has misread the
103
App. 91-93.
47
applicable legislation. In each of the NDAAs for 2014, 2015, and 2016, Congress
added provisions which explicitly stated that its appropriation should not be
construed as amounting to the specific authorizations required by the WPR.
The District Court did not address this issue, so we repeat the critical points here.
Congressional consideration of the WPR began the very first time it decided
to fund the War. On September 19th, Congress amended the Continuing
Appropriations Resolution of 2015 (2015 CR) to allow the transfer of already
appropriated funds for the new campaign. In approving this transfer, the
amendment stipulated that [n]othing in this section shall be construed to constitute
a specific statutory authorization for the introduction of United States Armed
Forces into hostilities or into situations wherein hostilities are clearly indicated by
the circumstances. 104 As Representative Howard McKeon, the primary sponsor of
the amendment, explained: There may be a time when we need to have an AUMF
debate, but this is not it. The President has not asked for such an authority. 105
Call this an explicit disclaimer, since the provision is specifically directed at
the War. In addition, the 2015 CR contained a general disclaimer: [n]one of the
104
Continuing Appropriations Resolution, 2015, 149(i), Pub. L. No. 113-164, 128
Stat. 1867, 1876 (2014).
105
160 Cong. Rec. H7557 (daily ed. Sept. 16, 2014) (statement of Representative
McKeon).
48
funds made available by this Act may be used in contravention of the War Powers
Resolution. 106
Congresss stop-gap funding measure was replaced on December 16th by a
new appropriations act for the rest of the fiscal year. This was passed after the
WPRs mandatory 60/90 day deadline, and continued the double disclaimer
strategy. It contained a specific provision declaring that funding for the Syrian
campaign did not represent the specific authorization required by the WPR, 107
and a general ban on the use of funds in contravention of the [WPR]. 108
The same disclaimer appears in the Consolidated Appropriations Act for
2016.109 This time around, it is joined by two specific disclaimersone denying
specific authorization for the campaign against ISIL in Iraq; the other, denying it
for hostilities in Syria. 110
The District Court ignored all these provisions. It relied instead on the
following excerpt from the Explanatory Statement accompanying the 2015 Act:
106
See Consolidated Appropriations Act, 2014, 9015, Pub. L. No. 113-76, 128
Stat. 5, 150 (2014).
107
See Consolidated and Continuing Appropriations Act, 2015, 9014, Pub. L. No.
113-235, 128 Stat. 2130, 2300 (2014) (None of the funds made available by this
Act may be used with respect to Syria in contravention of the War Powers
Resolution (50 U.S.C. 1541 et seq.), including for the introduction of United States
armed or military forces into hostilities in Syria, into situations in Syria where
imminent involvement in hostilities is clearly indicated.).
108
Id. 8116.
109
8106, Pub. L. No. 114-113, 129 Stat. 2242, 2376.
110
8122, 129 Stat. at 2380 (Iraq); 9012, 129 Stat. at 2397 (Syria).
49
The Explanatory Statement for the 2016 Appropriations Act that

appropriated these funds stated that the rise of the Islamic State of
Iraq and the Levant (ISIL) serves as a reminder that it is more
important than ever to provide the funding and resources necessary to
ensure that the military and Intelligence Community are able to detect
and disrupt developing threats.
It also stated that the Act moves funding . . . to provide additional funding for the
Army, Navy, Marine Corps, and Air Force to conduct counter-ISIL operations. 111
But the District Courts description of the Explanatory Statement is fatally
incomplete. It fails to note that the Statement also reports that the omnibus bill
retains a provision proposed by the House which prohibits funds from being used
to violate the War Powers Resolution. 112 Even on its own terms, then, the District
Courts reasoning falls of its own weight. 113 The Explanatory Statement does not
111
App. 91-92.
112
See Consolidated Appropriations Act, 2016 Committee Print of the H. Comm.
on Appropriations, Explanatory Statement, 563, Pub. L. No. 114-113, 129 Stat.
2242 (2015).
113
The Summary makes the essential point by citing the Acts general disclaimers.
But as we have seen, the omnibus measure contains two additional disclaimers
specifically directed to Iraq and Syria, reemphasizing Congress refusal to
authorize the war under the WPR. But comprehensiveness should not be expected
of a Summary. It is enough that it makes the essential point. Under the omnibus
appropriation statute, the Summary has the same effect as if it were a joint
explanatory statement of a committee of conference. See id., 4. While
conference committee reports are useful aids in resolving statutory ambiguities,
they never trump the plain language of statutory provisions.
50
claim that the act satisfies the WPRs demand for explicit authorization; it says
just the opposite. 114
In rejecting this finding as legally unfounded, this Court should also reject
the mistaken methodology which generated it. It should make it clear that it is the
language of the statute itself, not the summary provided by the Explanatory
Statement, that serves as the authoritative meaning for the NDAAs. It should also
make it clear that, even if the NDAAs had been completely silent, Congressional
funding should not, under the WPR, be inferred from any provision . . . contained
in any appropriation Act, unless such provision specifically authorizes the
introduction of United States Armed Forces into hostilities. 115
Only one issue remains. At one point, the District Court asserted that an
earlier Congress cannot force later Congresses to abide by its rules of statutory
interpretation. 116 But this objection, if accepted, would render unconstitutional all
114
The District Court also notes that the government cites the National Defense
Authorization Acts for Fiscal Years 2015 and 2016, each of which addresses to
some extent the threat posed by ISIL. But it fails to recognize that the 2015
NDAA also contained a specific disclaimer that it should not be construed to
constitute a specific statutory authorization for the introduction of United States
Armed Forces into hostilities. Id. at 1209 (h),(i), Pub. L. No. 113-291, 128 Stat.
3292, 3543 (2014). In any event, these authorization statutes would only become
decisive if the omnibus appropriations had been silent on the matter. But as we
have shown, they consistently contained explicit disclaimers themselves, allowing
us to leave the prior authorizing legislation in the interpretive background.
115
WPR 8(a)(1).
116
App. 92-93, at n.15; Governments Opposition Brief at 29 n.47.
51
of the rules of interpretation that Congress has imposed on courts since the
Founding. The U.S. Code contains literally thousands of them. If Congress is no
longer satisfied with one or another of these rules of interpretation, it is always free
to repeal them. But so long as they remain on the statute books, courts have no
power to revise these legislative judgments. Since Section 8(a)(1) is well within the
authority granted Congress to enact legislation it deems necessary and proper to
implement its authority to declare war, courts have a constitutional obligation to
respect the Rules requirements.
CONCLUSION
For the foregoing reasons, the decision of the District Court should be
reversed.
Respectfully submitted,
/s/ David H. Remes

David H. Remes
Appeal for Justice
1106 Noyes Drive
Silver Spring, MD 20910
202-669-65098
remesdh@gmail.com
Bruce Ackerman, Sterling Professor of Law and Political Science at Yale

University, significantly contributed to the arguments presented in this brief.
52
Certificate of Compliance with Type-Volume Limitation,

Typeface Requirements, and Type Style Requirements
1. This brief complies with the type-volume limitation of Fed. R. App. P.
32(a)(7)(B) because it brief contains 12,844 words, excluding the parts of the brief
exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
2. This brief complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has
been prepared in a proportionally spaced typeface using Microsoft Word in 14
point Times New Roman.
Dated: April 3, 2017 /s/ David H. Remes

David H. Remes
Counsel for Appellant
53
CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of April, 2017, I filed and served the
foregoing Brief of Appellant and Joint Appendix through this Courts ECF system.
/s/ David H. Remes

DAVID H. REMES
54
ADDENDUM
CONSTITUTIONAL AND STATUTORY AUTHORITIES

Pursuant to D.C. Cir. Rule 28(a)(5)
ADD Page
War Powers Resolution of 1973,

Pub. L. No. 93-148, 87 Stat. 555 (1973)
(codified at 50 U.S.C. 1541-1548 (2012)) ......................................................... 2
Oath of Office, 5 U.S.C. 3331 (2012) .................................................................... 6
Enlistment Oath, 10 U.S.C. 502(a) (2012) ............................................................. 7
Authorization for Use of Military Force,
Pub. L. No. 107-40, 115 Stat. 224 (2001)
(50 U.S.C. 1541 note (2012)) ............................................................................... 8
Authorization for Use of Military Force Against Iraq Resolution of 2002,
Pub. L. No. 107-243, 116 Stat. 1498 (2002)
(50 U.S.C. 1541 note) ......................................................................................... 10
Act of June 1, 1789, ch. 1, 1, 1 Stat. 23 (1789) .................................................... 14
Act of Sept. 29, 1789, ch. 25, 3, 1 Stat. 95 (1789) ............................................... 16
Act of July 2, 1862, ch. 128, 12 Stat. 502 (1862) .................................................... 18
ADD-1
4/2/2017 WarPowersResolution|TeachingAmericanHistory
WarPowersResolution
PublicLaw93148
93rdCongress,H.J.Res.542
JointResolution
ConcerningtheWarPowersofCongressandthePresident.
November07,1973
ResolvedbytheSenateandtheHouseofRepresentativesoftheUnitedStatesofAmericainCongressassembled,
SHORTTITLE
SECTION1.ThisjointresolutionmaybecitedastheWarPowersResolution.
PURPOSEANDPOLICY
SEC.2.(a)ItisthepurposeofthisjointresolutiontofulfilltheintentoftheframersoftheConstitutionoftheUnited
StatesandinsurethatthecollectivejudgmentofboththeCongressandthePresidentwillapplytotheintroductionof
UnitedStatesArmedForcesintohostilities,orintosituationswhereimminentinvolvementinhostilitiesisclearly
indicatedbythecircumstances,andtothecontinueduseofsuchforcesinhostilitiesorinsuchsituations.
(b)UnderarticleI,section8,oftheConstitution,itisspecificallyprovidedthattheCongressshallhavethepowertomake
alllawsnecessaryandproperforcarryingintoexecution,notonlyitsownpowersbutalsoallotherpowersvestedbythe
ConstitutionintheGovernmentoftheUnitedStates,orinanydepartmentorofficerthereof.
(c)TheconstitutionalpowersofthePresidentasCommanderinChieftointroduceUnitedStatesArmedForcesinto
hostilities,orintosituationswhereimminentinvolvementinhostilitiesisclearlyindicatedbythecircumstances,are
exercisedonlypursuantto(1)adeclarationofwar,(2)specificstatutoryauthorization,or(3)anationalemergencycreated
byattackupontheUnitedStates,itsterritoriesorpossessions,oritsarmedforces.
CONSULTATION
SEC.3.ThePresidentineverypossibleinstanceshallconsultwithCongressbeforeintroducingUnitedStatesArmed
Forcesintohostilitiesorintosituationwhereimminentinvolvementinhostilitiesisclearlyindicatedbythe
circumstances,andaftereverysuchintroductionshallconsultregularlywiththeCongressuntilUnitedStatesArmed
Forcesarenolongerengagedinhostilitiesorhavebeenremovedfromsuchsituations.
REPORTING
SEC.4.(a)Intheabsenceofadeclarationofwar,inanycaseinwhichUnitedStatesArmedForcesareintroduced
(1)intohostilitiesorintosituationswhereimminentinvolvementinhostilitiesisclearlyindicatedbythecircumstances
(2)intotheterritory,airspaceorwatersofaforeignnation,whileequippedforcombat,exceptfordeploymentswhich
relatesolelytosupply,replacement,repair,ortrainingofsuchforcesor
http://teachingamericanhistory.org/library/document/warpowersresolution/
ADD-2 1/5
(3)innumberswhichsubstantiallyenlargeUnitedStatesArmedForcesequippedforcombatalreadylocatedinaforeign
nationthepresidentshallsubmitwithin48hourstotheSpeakeroftheHouseofRepresentativesandtothePresidentpro
temporeoftheSenateareport,inwriting,settingforth
(A)thecircumstancesnecessitatingtheintroductionofUnitedStatesArmedForces
(B)theconstitutionalandlegislativeauthorityunderwhichsuchintroductiontookplaceand
(C)theestimatedscopeanddurationofthehostilitiesorinvolvement.
(b)ThePresidentshallprovidesuchotherinformationastheCongressmayrequestinthefulfillmentofitsconstitutional
responsibilitieswithrespecttocommittingtheNationtowarandtotheuseofUnitedStatesArmedForcesabroad
(c)WheneverUnitedStatesArmedForcesareintroducedintohostilitiesorintoanysituationdescribedinsubsection(a)
ofthissection,thePresidentshall,solongassucharmedforcescontinuetobeengagedinsuchhostilitiesorsituation,
reporttotheCongressperiodicallyonthestatusofsuchhostilitiesorsituationaswellasonthescopeanddurationofsuch
hostilitiesorsituation,butinnoeventshallhereporttotheCongresslessoftenthanonceeverysixmonths.
CONGRESSIONALACTION
SEC.5.(a)Eachreportsubmittedpursuanttosection4(a)(1)shallbetransmittedtotheSpeakeroftheHouseof
RepresentativesandtothePresidentprotemporeoftheSenateonthesamecalendarday.Eachreportsotransmitted
shallbereferredtotheCommitteeonForeignAffairsoftheHouseofRepresentativesandtotheCommitteeonForeign
RelationsoftheSenateforappropriateaction.If,whenthereportistransmitted,theCongresshasadjournedsinedieor
hasadjournedforanyperiodinexcessofthreecalendardays,theSpeakeroftheHouseofRepresentativesandthe
PresidentprotemporeoftheSenate,iftheydeemitadvisable(orifpetitionedbyatleast30percentofthemembershipof
theirrespectiveHouses)shalljointlyrequestthePresidenttoconveneCongressinorderthatitmayconsiderthereport
andtakeappropriateactionpursuanttothissection.
(b)Withinsixtycalendardaysafterareportissubmittedorisrequiredtobesubmittedpursuanttosection4(a)(1),
whicheverisearlier,thePresidentshallterminateanyuseofUnitedStatesArmedForceswithrespecttowhichsuch
reportwassubmitted(orrequiredtobesubmitted),unlesstheCongress(1)hasdeclaredwarorhasenactedaspecific
authorizationforsuchuseofUnitedStatesArmedForces,(2)hasextendedbylawsuchsixtydayperiod,or(3)is
physicallyunabletomeetasaresultofanarmedattackupontheUnitedStates.Suchsixtydayperiodshallbeextended
fornotmorethananadditionalthirtydaysifthePresidentdeterminesandcertifiestotheCongressinwritingthat
unavoidablemilitarynecessityrespectingthesafetyofUnitedStatesArmedForcesrequiresthecontinueduseofsuch
armedforcesinthecourseofbringingaboutapromptremovalofsuchforces.
(c)Notwithstandingsubsection(b),atanytimethatUnitedStatesArmedForcesareengagedinhostilitiesoutsidethe
territoryoftheUnitedStates,itspossessionsandterritorieswithoutadeclarationofwarorspecificstatutory
authorization,suchforcesshallberemovedbythePresidentiftheCongresssodirectsbyconcurrentresolution.
CONGRESSIONALPRIORITYPROCEDURESFORJOINTRESOLUTIONORBILL
SEC.6.(a)Anyjointresolutionorbillintroducedpursuanttosection5(b)atleastthirtycalendardaysbeforethe
expirationofthesixtydayperiodspecifiedinsuchsectionshallbereferredtotheCommitteeonForeignAffairsofthe
HouseofRepresentativesortheCommitteeonForeignRelationsoftheSenate,asthecasemaybe,andsuchcommittee
shallreportonesuchjointresolutionorbill,togetherwithitsrecommendations,notlaterthantwentyfourcalendardays
beforetheexpirationofthesixtydayperiodspecifiedinsuchsection,unlesssuchHouseshallotherwisedeterminebythe
yeasandnays.
(b)AnyjointresolutionorbillsoreportedshallbecomethependingbusinessoftheHouseinquestion(inthecaseofthe
Senatethetimefordebateshallbeequallydividedbetweentheproponentsandtheopponents),andshallbevotedon
withinthreecalendardaysthereafter,unlesssuchHouseshallotherwisedeterminebyyeasandnays.
(c)SuchajointresolutionorbillpassedbyoneHouseshallbereferredtothecommitteeoftheotherHousenamedin
subsection(a)andshallbereportedoutnotlaterthanfourteencalendardaysbeforetheexpirationofthesixtydayperiod
specifiedinsection5(b).ThejointresolutionorbillsoreportedshallbecomethependingbusinessoftheHousein
questionandshallbevotedonwithinthreecalendardaysafterithasbeenreported,unlesssuchHouseshallotherwise
determinebyyeasandnays.
(d)InthecaseofanydisagreementbetweenthetwoHousesofCongresswithrespecttoajointresolutionorbillpassedby
bothHouses,confereesshallbepromptlyappointedandthecommitteeofconferenceshallmakeandfileareportwith
respecttosuchresolutionorbillnotlaterthanfourcalendardaysbeforetheexpirationofthesixtydayperiodspecifiedin
section5(b).Intheeventtheconfereesareunabletoagreewithin48hours,theyshallreportbacktotheirrespective
ADD-3 2/5
Housesindisagreement.NotwithstandinganyruleineitherHouseconcerningtheprintingofconferencereportsinthe
Recordorconcerninganydelayintheconsiderationofsuchreports,suchreportshallbeactedonbybothHousesnot
laterthantheexpirationofsuchsixtydayperiod.
CONGRESSIONALPRIORITYPROCEDURESFORCONCURRENTRESOLUTION
SEC.7.(a)Anyconcurrentresolutionintroducedpursuanttosection5(b)atleastthirtycalendardaysbeforethe
expirationofthesixtydayperiodspecifiedinsuchsectionshallbereferredtotheCommitteeonForeignAffairsofthe
HouseofRepresentativesortheCommitteeonForeignRelationsoftheSenate,asthecasemaybe,andonesuch
concurrentresolutionshallbereportedoutbysuchcommitteetogetherwithitsrecommendationswithinfifteencalendar
days,unlesssuchHouseshallotherwisedeterminebytheyeasandnays.
(b)AnyconcurrentresolutionsoreportedshallbecomethependingbusinessoftheHouseinquestion(inthecaseofthe
Senatethetimefordebateshallbeequallydividedbetweentheproponentsandtheopponents),andshallbevotedon
withinthreecalendardaysthereafter,unlesssuchHouseshallotherwisedeterminebyyeasandnays.
(c)SuchaconcurrentresolutionpassedbyoneHouseshallbereferredtothecommitteeoftheotherHousenamedin
subsection(a)andshallbereportedoutbysuchcommitteetogetherwithitsrecommendationswithinfifteencalendar
daysandshallthereuponbecomethependingbusinessofsuchHouseandshallbevotedonwithinthreecalendardays
afterithasbeenreported,unlesssuchHouseshallotherwisedeterminebyyeasandnays.
(d)InthecaseofanydisagreementbetweenthetwoHousesofCongresswithrespecttoaconcurrentresolutionpassedby
bothHouses,confereesshallbepromptlyappointedandthecommitteeofconferenceshallmakeandfileareportwith
respecttosuchconcurrentresolutionwithinsixcalendardaysafterthelegislationisreferredtothecommitteeof
conference.NotwithstandinganyruleineitherHouseconcerningtheprintingofconferencereportsintheRecordor
concerninganydelayintheconsiderationofsuchreports,suchreportshallbeactedonbybothHousesnotlaterthansix
calendardaysaftertheconferencereportisfiled.Intheeventtheconfereesareunabletoagreewithin48hours,theyshall
reportbacktotheirrespectiveHousesindisagreement.
INTERPRETATIONOFJOINTRESOLUTION
SEC.8.(a)AuthoritytointroduceUnitedStatesArmedForcesintohostilitiesorintosituationswhereininvolvementin
hostilitiesisclearlyindicatedbythecircumstancesshallnotbeinferred
(1)fromanyprovisionoflaw(whetherornotineffectbeforethedateoftheenactmentofthisjointresolution),including
anyprovisioncontainedinanyappropriationAct,unlesssuchprovisionspecificallyauthorizestheintroductionofUnited
StatesArmedForcesintohostilitiesorintosuchsituationsandstatingthatitisintendedtoconstitutespecificstatutory
authorizationwithinthemeaningofthisjointresolutionor
(2)fromanytreatyheretoforeorhereafterratifiedunlesssuchtreatyisimplementedbylegislationspecificallyauthorizing
theintroductionofUnitedStatesArmedForcesintohostilitiesorintosuchsituationsandstatingthatitisintendedto
constitutespecificstatutoryauthorizationwithinthemeaningofthisjointresolution.
(b)Nothinginthisjointresolutionshallbeconstruedtorequireanyfurtherspecificstatutoryauthorizationtopermit
membersofUnitedStatesArmedForcestoparticipatejointlywithmembersofthearmedforcesofoneormoreforeign
countriesintheheadquartersoperationsofhighlevelmilitarycommandswhichwereestablishedpriortothedateof
enactmentofthisjointresolutionandpursuanttotheUnitedNationsCharteroranytreatyratifiedbytheUnitedStates
priortosuchdate.
(c)Forpurposesofthisjointresolution,thetermintroductionofUnitedStatesArmedForcesincludestheassignmentof
memberofsucharmedforcestocommand,coordinate,participateinthemovementof,oraccompanytheregularor
irregularmilitaryforcesofanyforeigncountryorgovernmentwhensuchmilitaryforcesareengaged,orthereexistsan
imminentthreatthatsuchforceswillbecomeengaged,inhostilities.
(d)Nothinginthisjointresolution
(1)isintendedtoaltertheconstitutionalauthorityoftheCongressorofthePresident,ortheprovisionofexistingtreaties
or
(2)shallbeconstruedasgrantinganyauthoritytothePresidentwithrespecttotheintroductionofUnitedStatesArmed
Forcesintohostilitiesorintosituationswhereininvolvementinhostilitiesisclearlyindicatedbythecircumstanceswhich
authorityhewouldnothavehadintheabsenceofthisjointresolution.
SEPARABILITYCLAUSE
ADD-4 3/5
SEC.9.Ifanyprovisionofthisjointresolutionortheapplicationthereoftoanypersonorcircumstanceisheldinvalid,
theremainderofthejointresolutionandtheapplicationofsuchprovisiontoanyotherpersonorcircumstanceshallnot
beaffectedthereby.
EFFECTIVEDATE
SEC.10.Thisjointresolutionshalltakeeffectonthedateofitsenactment.
CARLALBERT
SpeakeroftheHouseofRepresentatives.
JAMESO.EASTLAND
PresidentoftheSenateprotempore.
INTHEHOUSEOFREPRESENTATIVES,U.S.,
November7,1973.
TheHouseofRepresentativeshavingproceededtoreconsidertheresolution(H.J.Res542)entitledJointresolution
concerningthewarpowersofCongressandthePresident,returnedbythePresidentoftheUnitedStateswithhis
objections,totheHouseofRepresentatives,inwhichitoriginated,itwas
Resolved,Thatthesaidresolutionpass,twothirdsoftheHouseofRepresentativesagreeingtopassthesame.
Attest:
W.PATJENNINGS
Clerk.
IcertifythatthisJointResolutionoriginatedintheHouseofRepresentatives.
W.PATJENNINGS
Clerk.
INTHESENATEOFTHEUNITEDSTATES
November7,1973
TheSenatehavingproceededtoreconsiderthejointresolution(H.J.Res.542)entitledJointresolutionconcerningthe
warpowersofCongressandthePresident,returnedbythePresidentoftheUnitedStateswithhisobjectionstothe
HouseofRepresentatives,inwhichitoriginate,itwas
Resolved,Thatthesaidjointresolutionpass,twothirdsoftheSenatorspresenthavingvotedintheaffirmative.
Attest:
FRANCISR.VALEO
Secretary.
TeachingAmericanHistory.org
TeachingAmericanHistory.orgisaprojectoftheAshbrookCenteratAshlandUniversity
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ADD-5 4/5
3331. Oath of office, 5 USCA 3331
United States Code Annotated

Title 5. Government Organization and Employees (Refs & Annos)
Part III. Employees (Refs & Annos)
Subpart B. Employment and Retention
Chapter 33. Examination, Selection, and Placement (Refs & Annos)
Subchapter II. Oath of Office
5 U.S.C.A. 3331
3331. Oath of office
Currentness
An individual, except the President, elected or appointed to an office of honor or profit in the civil service or uniformed
services, shall take the following oath: I, AB, do solemnly swear (or affirm) that I will support and defend the
Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to
the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well
and faithfully discharge the duties of the office on which I am about to enter. So help me God. This section does not
affect other oaths required by law.
CREDIT(S)
(Pub.L. 89-554, Sept. 6, 1966, 80 Stat. 424.)
5 U.S.C.A. 3331, 5 USCA 3331

Current through P.L. 114-327. Also includes P.L. 114-329 and 115-1 to 115-8. Title 26 current through 115-8.
End of Document 2017 Thomson Reuters. No claim to original U.S. Government Works.
2017 Thomson Reuters. No claim toADD-6

original U.S. Government Works. 1
502. Enlistment oath: who may administer, 10 USCA 502
United States Code Annotated

Title 10. Armed Forces (Refs & Annos)
Subtitle A. General Military Law (Refs & Annos)
Part II. Personnel (Refs & Annos)
Chapter 31. Enlistments (Refs & Annos)
10 U.S.C.A. 502
502. Enlistment oath: who may administer
Effective: October 17, 2006

Currentness
(a) Enlistment oath.--Each person enlisting in an armed force shall take the following oath:
I, _______, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against
all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders
of the President of the United States and the orders of the officers appointed over me, according to regulations and
the Uniform Code of Military Justice. So help me God.
(b) Who may administer.--The oath may be taken before the President, the Vice-President, the Secretary of Defense, any
commissioned officer, or any other person designated under regulations prescribed by the Secretary of Defense.
CREDIT(S)
(Aug. 10, 1956, c. 1041, 70A Stat. 17, 502, formerly 501; Oct. 5, 1962, Pub.L. 87-751, 1, 76 Stat. 748; renumbered
502, Jan. 2, 1968, Pub.L. 90-235, 2(a)(1)(A), 81 Stat. 753; amended Nov. 29, 1989, Pub.L. 101-189, Div. A, Title VI,
653(a)(1), 103 Stat. 1462; Oct. 17, 2006, Pub.L. 109-364, Div. A, Title V, 595(a), 120 Stat. 2235.)
10 U.S.C.A. 502, 10 USCA 502

Current through P.L. 114-327. Also includes P.L. 114-329 and 115-1 to 115-8. Title 26 current through 115-8.

AUTHORIZATION FOR USE OF MILITARY FORCE, PL 10740, September 18, 2001,...
PL 10740, September 18, 2001, 115 Stat 224
UNITED STATES PUBLIC LAWS

107th Congress - First Session
Convening January, 2001
Additions and Deletions are not identified in this database.

Vetoed provisions within tabular material are not displayed
PL 10740 (SJRes 23)

September 18, 2001
AUTHORIZATION FOR USE OF MILITARY FORCE
Joint Resolution To authorize the use of United States Armed Forces against those responsible for the recent attacks
launched against the United States.
Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens;
and
Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense
and to protect United States citizens both at home and abroad; and
Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave
acts of violence; and
Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy
of the United States; and
Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international
terrorism against the United States: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
<< 50 USCA 1541 NOTE >>
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the Authorization for Use of Military Force.
<< 50 USCA 1541 NOTE >>
SEC. 2. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) IN GENERAL.That the President is authorized to use all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred
on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international
terrorism against the United States by such nations, organizations or persons.
(b) War Powers Resolution Requirements
(1) SPECIFIC STATUTORY AUTHORIZATION.Consistent with section 8(a)(1) of the War Powers Resolution,
the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of
section 5(b) of the War Powers Resolution.

AUTHORIZATION FOR USE OF MILITARY FORCE, PL 10740, September 18, 2001,...
(2) APPLICABILITY OF OTHER REQUIREMENTS.Nothing in this resolution supercedes any requirement of

the War Powers Resolution.
Approved September 18, 2001.
PL 10740, 2001 SJRes 23

AUTHORIZATION FOR USE OF MILITARY FORCE..., PL 107243, October...
PL 107243, October 16, 2002, 116 Stat 1498
UNITED STATES PUBLIC LAWS

107th Congress - Second Session
Convening January, 2002
Additions and Deletions are not identified in this database.

Vetoed provisions within tabular material are not displayed
PL 107243 (HJRes 114)

October 16, 2002
AUTHORIZATION FOR USE OF MILITARY FORCE AGAINST IRAQ RESOLUTION OF 2002
JOINT RESOLUTION To authorize the use of United States Armed Forces against Iraq.
<< 50 USCA 1541 NOTE >>
Whereas in 1990 in response to Iraq's war of aggression against and illegal occupation of Kuwait, the United States
forged a coalition of nations to liberate Kuwait and its people in order to defend the national security of the United
States and enforce United Nations Security Council resolutions relating to Iraq;
Whereas after the liberation of Kuwait in 1991, Iraq entered into a United Nations sponsored cease-fire agreement
pursuant to which Iraq unequivocally agreed, among other things, to eliminate its nuclear, biological, and chemical
weapons programs and the means to deliver and develop them, and to end its support for international terrorism;
Whereas the efforts of international weapons inspectors, United States intelligence agencies, and Iraqi defectors led
to the discovery that Iraq had large stockpiles of chemical weapons and a large scale biological weapons program,
and that Iraq had an advanced nuclear weapons development program that was much closer to producing a nuclear
weapon than intelligence reporting had previously indicated;
Whereas Iraq, in direct and flagrant violation of the cease-fire, attempted to thwart the efforts of weapons inspectors to
identify and destroy Iraq's weapons of mass destruction stockpiles and development capabilities, which finally resulted
in the withdrawal of inspectors from Iraq on October 31, 1998;
Whereas in Public Law 105235 (August 14, 1998), Congress concluded that Iraq's continuing weapons of mass
destruction programs threatened vital United States interests and international peace and security, declared Iraq to be
in material and unacceptable breach of its international obligations and urged the President to take appropriate
action, in accordance with the Constitution and relevant laws of the United States, to bring Iraq into compliance with
its international obligations;
Whereas Iraq both poses a continuing threat to the national security of the United States and international peace and
security in the Persian Gulf region and remains in material and unacceptable breach of its international obligations
by, among other things, continuing to possess and develop a significant chemical and biological weapons capability,
actively seeking a nuclear weapons capability, and supporting and harboring terrorist organizations;
Whereas Iraq persists in violating resolution of the United Nations Security Council by continuing to engage in brutal
repression of its civilian population thereby threatening international peace and security in the region, by refusing to
release, repatriate, or account for non-Iraqi citizens wrongfully detained by Iraq, including an American serviceman,
and by failing to return property wrongfully seized by Iraq from Kuwait;

Whereas the current Iraqi regime has demonstrated its capability and willingness to use weapons of mass destruction
against other nations and its own people;
Whereas the current Iraqi regime has demonstrated its continuing hostility toward, and willingness to attack, the
United States, including by attempting in 1993 to assassinate former President Bush and by firing on many thousands
of occasions on United States and Coalition Armed Forces engaged in enforcing the resolutions of the United Nations
Security Council;
Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and
interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq;
Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that
threaten the lives and safety of United States citizens;
Whereas the attacks on the United States of September 11, 2001, underscored the gravity of the threat posed by the
acquisition of weapons of mass destruction by international terrorist organizations;
Whereas Iraq's demonstrated capability and willingness to use weapons of mass destruction, the risk that the current
Iraqi regime will either employ those weapons to launch a surprise attack against the United States or its Armed Forces
or provide them to international terrorists who would do so, and the extreme magnitude of harm that would result to
the United States and its citizens from such an attack, combine to justify action by the United States to defend itself;
Whereas United Nations Security Council Resolution 678 (1990) authorizes the use of all necessary means to enforce
United Nations Security Council Resolution 660 (1990) and subsequent relevant resolutions and to compel Iraq to
cease certain activities that threaten international peace and security, including the development of weapons of mass
destruction and refusal or obstruction of United Nations weapons inspections in violation of United Nations Security
Council Resolution 687 (1991), repression of its civilian population in violation of United Nations Security Council
Resolution 688 (1991), and threatening its neighbors or United Nations operations in Iraq in violation of United
Nations Security Council Resolution 949 (1994);
Whereas in the Authorization for Use of Military Force Against Iraq Resolution (Public Law 1021), Congress has
authorized the President to use United States Armed Forces pursuant to United Nations Security Council Resolution
678 (1990) in order to achieve implementation of Security Council Resolution 660, 661, 662, 664, 665, 666, 667, 669,
670, 674, and 677;
Whereas in December 1991, Congress expressed its sense that it supports the use of all necessary means to achieve the
goals of United Nations Security Council Resolution 687 as being consistent with the Authorization of Use of Military
Force Against Iraq Resolution (Public Law 1021), that Iraq's repression of its civilian population violates United
Nations Security Council Resolution 688 and constitutes a continuing threat to the peace, security, and stability of
the Persian Gulf region, and that Congress, supports the use of all necessary means to achieve the goals of United
Nations Security Council Resolution 688;
Whereas the Iraq Liberation Act of 1998 (Public Law 105338) expressed the sense of Congress that it should be
the policy of the United States to support efforts to remove from power the current Iraqi regime and promote the
emergence of a democratic government to replace that regime;
Whereas on September 12, 2002, President Bush committed the United States to work with the United Nations
Security Council to meet our common challenge posed by Iraq and to work for the necessary resolutions, while
also making clear that the Security Council resolutions will be enforced, and the just demands of peace and security
will be met, or action will be unavoidable;

Whereas the United States is determined to prosecute the war on terrorism and Iraq's ongoing support for international
terrorist groups combined with its development of weapons of mass destruction in direct violation of its obligations
under the 1991 cease-fire and other United Nations Security Council resolutions make clear that it is in the national
security interests of the United States and in furtherance of the war on terrorism that all relevant United Nations
Security Council resolutions be enforced, including through the use of force if necessary;
Whereas Congress has taken steps to pursue vigorously the war on terrorism through the provision of authorities
and funding requested by the President to take the necessary actions against international terrorists and terrorist
organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the
terrorist attacks that occurred on September 11, 2001, or harbored such persons or organizations;
Whereas the President and Congress are determined to continue to take all appropriate actions against international
terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized,
committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such persons or
organizations;
Whereas the President has authority under the Constitution to take action in order to deter and prevent acts of
international terrorism against the United States, as Congress recognized in the joint resolution on Authorization for
Use of Military Force (Public Law 10740); and
Whereas it is in the national security interests of the United States to restore international peace and security to the
Persian Gulf region: Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled,
<< 50 USCA 1541 NOTE >>
SECTION 1. SHORT TITLE.
This joint resolution may be cited as the Authorization for Use of Military Force Against Iraq Resolution of 2002.
<< 50 USCA 1541 NOTE >>
SEC. 2. SUPPORT FOR UNITED STATES DIPLOMATIC EFFORTS.
The Congress of the United States supports the efforts by the President to
(1) strictly enforce through the United Nations Security Council all relevant Security Council resolutions regarding
Iraq and encourages him in those efforts; and
(2) obtain prompt and decisive action by the Security Council to ensure that Iraq abandons its strategy of delay, evasion
and noncompliance and promptly and strictly complies with all relevant Security Council resolutions regarding Iraq.
<< 50 USCA 1541 NOTE >>
SEC. 3. AUTHORIZATION FOR USE OF UNITED STATES ARMED FORCES.
(a) AUTHORIZATION.The President is authorized to use the Armed Forces of the United States as he determines
to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council resolutions regarding Iraq.
(b) PRESIDENTIAL DETERMINATION.In connection with the exercise of the authority granted in subsection
(a) to use force the President shall, prior to such exercise or as soon thereafter as may be feasible, but no later than 48

hours after exercising such authority, make available to the Speaker of the House of Representatives and the President
pro tempore of the Senate his determination that
(1) reliance by the United States on further diplomatic or other peaceful means alone either (A) will not adequately
protect the national security of the United States against the continuing threat posed by Iraq or (B) is not likely to lead
to enforcement of all relevant United Nations Security Council resolutions regarding Iraq; and
(2) acting pursuant to this joint resolution is consistent with the United States and other countries continuing to take
the necessary actions against international terrorist and terrorist organizations, including those nations, organizations,
or persons who planned, authorized, committed or aided the terrorist attacks that occurred on September 11, 2001.
(c) WAR POWERS RESOLUTION REQUIREMENTS.
(1) SPECIFIC STATUTORY AUTHORIZATION.Consistent with section 8(a)(1) of the War Powers Resolution,
the Congress declares that this section is intended to constitute specific statutory authorization within the meaning of
section 5(b) of the War Powers Resolution.
(2) APPLICABILITY OF OTHER REQUIREMENTS.Nothing in this joint resolution supersedes any requirement
of the War Powers Resolution.
<< 50 USCA 1541 NOTE >>
SEC. 4. REPORTS TO CONGRESS.
(a) REPORTS.The President shall, at least once every 60 days, submit to the Congress a report on matters relevant to
this joint resolution, including actions taken pursuant to the exercise of authority granted in section 3 and the status of
planning for efforts that are expected to be required after such actions are completed, including those actions described
in section 7 of the Iraq Liberation Act of 1998 (Public Law 105338).
(b) SINGLE CONSOLIDATED REPORT.To the extent that the submission of any report described in subsection
(a) coincides with the submission of any other report on matters relevant to this joint resolution otherwise required to
be submitted to Congress pursuant to the reporting requirements of the War Powers Resolution (Public Law 93148),
all such reports may be submitted as a single consolidated report to the Congress.
(c) RULE OF CONSTRUCTION.To the extent that the information required by section 3 of the Authorization for
Use of Military Force Against Iraq Resolution (Public Law 1021) is included in the report required by this section, such
report shall be considered as meeting the requirements of section 3 of such resolution.
Approved October 16, 2002.
LEGISLATIVE HISTORYH.J. Res. 114 (S.J. Res. 45) (S.J. Res. 46):
HOUSE REPORTS: No. 107721 (Comm. on International Relations).
CONGRESSIONAL RECORD, Vol. 148 (2002):
Oct. 8, 9, considered in House.
Oct. 10, considered and passed House and Senate.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 38 (2002):
Oct. 16, Presidential remarks and statement.
PL 107243, 2002 HJRes 114

THE
LAWS OF THE UNITED STATES.
ACTS OF TIIE FIRST CONGRESS

OF TBB
UNITED STATE S,
Passed at the .first session, which was begun and held at the City of New
York on Wednesday, March 4, 1789, and continued to Septefflher 29
1789. ,
GEoRGE WASHINGTON, President, JoHN ADAMS, Vice President of the
United States, and President of the Senate, FREDERICK AucusTus
MuHLENBERG, Speaker of the IJouse of R epresentatives.
STATUTE I.
CHAPI'KR L-.811 .!Jet to regulate the Time and ..t!a1mer of administeri11g certain June 1, 1789.
Oaths.
SEc. 1. Be it enacted by t~e Senate and [ IIouse t?fl Representatives of Constitution
of tbe U. S. ru
the United States of America in Congress assembled, That the oath or ticle 6, page 19.
affirmation required by the sixth article of the Constitution of the United . Form of the
States, shall be administered in the form following, to wit : " I, A. B. oath or affinna.
tion to support
do solemnly swear or affirm (as the case may be) that I will support the the Constitution
Constitution of the United States." The said oath or affirmation shall of' the United
be administered within three days after the passing of this act, by any one States, to be
administered to
member of the Senate, to the President of the Senate, and by him to the members ot
all the members and to the secretary ; and by the Speaker of the House the Senate and
of Representatives, to all the members who have not taken a similar to the members
of' the House of
o3.th, by virtue of a particular resolution of the said House, and to the Representa.
clerk : and in case of the absence of any member froin the service of tives.
either House, at the time prescribed for taking the said oath or affirm~
tion, the same shall be administered to such member, when he shall
appear to take his seat.
Sec. 2. And be it further enacted, That at the first session of Con- Manner ofa.d.
gress after every general election of Representatives, the oath or affir- ministering the
oath or affirma.
mation aforesaid, shall be administered by any one member of the House tion to Speaker
of Representatives to the Speaker; and by him to all the members pre-. of the House of
Bent, and to the clerk, previous to entering on any other business; and R.epresenta.
tives.
to the members who shall afterwards appear, previous to taking their
seats. The President of the Senate for the time being, shaJJ also ad- To ea.ch Sena.
minister the said oath or affirmation to each Senator who shall hereafter tor.
be elected, previous to his taking his seat: and in any future case of a
President of the Senate, who shall not have taken the said oath or affir-
mation, the same shall be administered to him by any one of the mem- To the mem.
bers of the Senate. bet~~ or
tlae !!eve
SEc. 3. And be it further enacted, That the members of the several ral State Le~;is
State legislatures, at the next sessions of the said legislatures, respec- Jaturee,andtoa11
executive and
tively, and all executive and judicial officers of the several States, who judicial officert
have been heretofore chosen or appointed, or who shall be chosen or of the State.
23
ADD-14
FIRST CONGRESS. SESS. I. CH. 2. 1789.
By whom the appointed before the first day of August next, and who shall then be in
o11.ths or affirma- office shall within one month thereafter, take the same oath or affirma-
tions ehall Jle tion ~xcep~ where they shall have taken it before; which may be admin-
administered in
the several iste;ed by any person authorized by the law of the State, in which such
Statea. office shall be holden, to administer oaths. An~ t~e. members of the
several State legislatures, and all executive and JUdicial officers of the
several States who shall be chosen or appointed after the said first day
of August, shall, before they pr~ed to execute th: duties. of their re-
spective offices, take the foregomg oath or affirmation, whtch shall be
administered by the person or persons, who by the law of the State shall
be authorized to administer the oath of office; and the person or persons
so administering the oath hereby required to be taken, shall ca~se a rt>-
cord or certificate thereof to be made, in the same manner, as, by the law
of the State, he or they shall be directed to record or certify the oath of
office.
To all officet'B SEc. 4. And be it further enacted, That all officers appointed, or
or the U. States hereafter to be appointed under the authority of the United States, shall,
appointed, or to before they act in their respective offices; take the same oath or affirma-
be appointed,
before t.hey act. tion, which shall be administered by the person or persons who shall be
authorized by law to administer to such officers their respective.oaths of
office; and such officers shall incur the same penalties in case of failure,
as shall be imposed by law in case of failure in taking their respective
oaths of office.
Ottth of se. SEc. 5. And be it further enacted, That the secretary of the Senate,
cretary of the and the clerk of the House of Representatives for the time being, shall,
Seno.te and clerk at the time of taking the oath or affirmation aforesaid, each take an oath
of the House of
Representll or affirmatioQ in the words following, to wit: "1, A. B. secretary of the
tives. Senate, or clerk of the House of Representatives (as the case may be)
of the United States of America, do solemnly swear or affirm, that I
will truly and faithfully discharge the duties of my said office, to the best
of my knowledge and abilities."
APPROVED, June 1, 1789.
STA.TUU I.
July 4, 1789. CHAP. II.-.O.n.IJ.ctfo't'layin.ga Duty on. Good4, Wares, and Merchandi:Ju imported
into the United Statu.( a)
(Repealed.)
SEC. 1. Whereas it is necessary for the support of government, for
the discharge of the debts of the United States, and the encouragement
and protection of manufactures, that duties be laid on goods, wares and
merchandis~ imported : (b)
Act of August Be it en~ted by the Senate and. House bf Representatives of tlte
10, 1790, ch. 38, United States of Amf:rica in Congre.~s assembled, That from and after
eec. 1 and 2.
the first day of August' next ensuing, the several duties hereinafter men-
tioned shall be laid on the following goods, wares and merchandises im-
ported into the United States from any foreign port or place, that is to say:
(C!) Duty Acte. Aet of July 4, 1789, chap .2; act of August 4, 1790, chap. 3D; act of June 6, 1794,
chap. 61; act of January 29, 1795, chap. 17; act of March 3, 1797, chap. 10; act of May 13, 1800,
chap. 66; aet of March .27, 1804, chap. 57; act of J une 7, 1794, chap. 54; act of January 29; 1795,
chap. 17; act of March 2'7, 1804, chap. 46; act of July 8, 1797, chap. 15; act of May 7, 1800, chap. 43;
aet of March 27, 1804, chap. 67; act of July 1, 1812, chap. 112; act of February 25, 1813, chap. 30;
act of All~st 2, 1813, chap. S8; act of April 27, 1816, chap. 107; act of January 14, 1817, chap. 3;
act of Apnl 20, 1818, chap. 105; act of April 20, 1818, chap. 93; act of May 21, 1824, chap. 136; act
of May 19, 1828, chap. 65; act of May 24, 1828, chap. 102; act of May 28, 1830, chap. 147; act of July
14, 1832, chap. 227; act of March 2, 1833,- chap. 62; act of September 11, 1841, chap. ~4; act of
Augoet 30, 1842, chap. 270.
(b) The powerw of Congress to levy and collect taxea, dutie, expoete and excises i co.extenin with
the Uni~ed States. Loughborough v. Blake, 6 Wheat. 317; 4 Cond. Rep. 660. '.
ADD-15
FIRST CONGRESS. SEss. I. CH. 2.1, ~, 25. 1780.
a~d not less th~n five tons. burthen, empl.oyed between any of the dis- Exemption of
trscts of the Umted S~at~s, m any .bay .or nver, and having a license from vessels under
20 tons, from
the collector of the d1stnct to wh1ch such vessel belongs from entering entering and
and clearing for the term of one year, be extended to ve~cls not exceed- clearing extend-
ing fifty tons: provided, such vessels shall not have on board goods ed to vessela of
50 tons having
wares or merchandise, other than euch as are actually the growth 0 ; on board good11,
produce of the United States. &c., the growth
SEC. 3. And be it further enacted, That so mach of an act, intituled, or produce of
the U.S.
"An act to re~ulate the collection of the duties imposed by law on the Act of July
tonnage of ships or vessels, and on goods, wares and merchandises im- 31, 1789.
ported into the United States/' as hath rated the ruble of Russia at one Act ofSept. 1,
1789.
hundred cents, be, and the same is hereby repealed and made nuU and Ruble of Rus-
void. sia, rate of.
APPROVED, September 29, 1789. Repealed.
STATU'l'E I.
CHAP. XXIII.-.Rn .Ret. making .Bppropriatiom for the Service of the pruenl Sept.29, 1789.
year.
SEcTION L Be it enacted by the Senate and Hoose of Representa- [Expired.]

tives of the United States of America in. Ctmgress assembled, That there Specific ap.
propriations of
be appropriated for the service of the present year, tlo be paid out of the money for ex-
monies which arise, either from the requisitions heretofore made upon penses of civil
the several states, or from the duties on impost and tonnage, the follow- liet e.ud wu de-
partment;
ing sums, viz. A sum not exceeding two hundred and sixteen thousand
dollars for defraying the expenses of the civil list, under the late and
present government; a sum not exceeding one hundred and thirty-seven
thousand dollars for defraying the expenses of the department of war; a alao to dis-
charge warnnt.e
sum not exceeding one hundred and ninety thousand dollars for die- of late board of
charging the warrants issued by the late board of treasury, and remain- treasury, and
ing unsatisfied; and a sum not exceeding ninety-six thousand dollars for for pensions to
invnlide.
paying the pensions to invalids.
APPROVED, September 29, 1789.
S'tATttr~ I.
CHAP. XXIV.-fn Au providing for the payTMnl of tk In'IJalid PemiunerJ nf Sept. 29, 1789.
the United $tatea. Act of J11ly
16 1 1790, eh. 27.
SECTION 1. Be it enacted by the &nate and Huuse of Representa- (Expired.]
Military pen.
tives of the United States of America in Congress asst;mbled, That .the sions heretofore
military pens!ons which have been granted and pa1d by the states paid by the
re&pectively, in pursua~ce of the acts of the United ~tates in C?ngress State to be
paid from 4th
assembled, to the invalids who were wounded and disabled durmg the March last for
late war, shall be continued and paid by the United States, from the one y~r, and
fourth day of March last, for the space of one year, under such regula- under what reg.
ulationa.
tions as the President of the United States may direct.
Sunm: I .
Sept. 29, 1789.
CHAP. XXV.-.8n .Ret to ruognize and adapt i1J tk Oms!itution of lk United
8/atu the eatabliJmunJ of the 1\-oop railed ufllkr the J!uolvtt. of the United [Repealed.)
$talea in Oongr~ autm5kd, and for other purp01u theretn 111enl1ontd. Act of April
30, 1790, cb. 10,
oec. 14.
SECTION 1. Be it enacted by tl,e &nate and .House of Representa. Eetabliehment
tives of the United States of America in Congress a~semhled, That ~he of 3d Oct. 1787,
recogn i~:ed for
P-stablishment contained in the resolve of the late Congress of the th!rd troop in the
day of October, one thousand seven hundred and eighty--seven, except aemce of U. 8.
ADD-16
96 FIRST CONGRESS. SEss. I. Cn. 27. R~LUTJONS. 1789.
as to the mode of appointing the officers, and also as is here.in afier

provided, be, and the same is hereby recognized to be the establishment
for the troops in the service of the United States.
Pay and a}. SEc. 2. And be it further enacted, That the pay and allowances of
lowance of the said troops be the same as have been established by the United States
troope.
in Congress assembled, by their resolution of the twelfth of April, one
thousand seven hundred and eighty-five.
SEc. 3. And be it furtlur enacted, That all commissioned and non-
commissioned officers and privates, who are or shall be in the service
of the United States, shall take the following oat~s or affirmations, to
To take oath wit: "I, A. B. do solemnly swear or affirm (as the case may be) that I
to eupport the will support the constitution of the United States." "I, A. B. do
Coneutution,
and bear alle. solemnly swear or affirm (as the case may be) to bear true allegiance to
giance to the the United States of America, and to serve them honestly and faithfully
United St&te11. against all their enemies or opposers whatsoever, and to observe and
obey the orders of the President of the United State~ of America, and
the orders of the officers appointed over me.''
Troops to J>. SEc. 4. And be it further enacted, That the said troops shall be go-
governed by verned by the rules and articles of war which have been established by
rulea and arti.
clea of war. the United States in Congress assembled, or by such ru1es and articles
of war, as may hereafter by law be established.
For protectin~r SEc. 5. And be it further enacted, That for the purpose of protecting
frontiera, Preei- the inhabitants of the frontiers of the United States from the ho.,tile in-
dent may call
forth ~e militia. cursions of the lQdians, the President is hereby authorized to call into
service from time to time, such part of the militia of the states respect-
Pay and eub. ively, as he may judge necessary for the purpose aforesaid; and that
eimnce.
their pay and subsistence while in eervice, be the same as the pay and
subsistence of the troops above mentioned.
Continuance SEc. 6. And be it furtlur enacted, That this act shall continue and
of this act. be in force until the end of the next session of Congress, and no longer.
STATU'U I.
Sept. 29, 1789. CHA.P, XXV 11.-.Hn .Bet tfJ alter the Time for the nut Muting of Congrw.
[Ezpired.]
SECTION 1. Be it enacted by tlte Senate and House of RepresentatitJrs
of the United States of America in Congress assembled, That after the
adjournment of the present session, the next meeting of Congress shall
be on the first Monday in January next.
RESOLUTIONS.
Su"ey direct- 1. REsOLVED, Thnt the Survey directed by Congress in their act of
ed by act of
June 6, 1788, to June the sixth, one thousand seven hundred and eighty-eight, be made
lie made and re. and returned to the Secretary of the Treasury without delay ; and that
. turned by Sec- the President of the United States be requP.sted to appoint a fit person
retary of the
1.'reo.eury with- to complete the same, who shall be allowed five dollars per. day whilst
out delay. actually employed in the said service, with the expenses necessarily at
tending the execution thereof
APPROVED, August 26, 1789.
Recommenda-
tion to the Le- 2. RESOLV1W by the &nat!'. and House of Representati'Dcs of tht Uni-
gielaturea of the ted States of Anurica it& Congress asstmbftd, That it be recommended
eever.l St&t.u to the legislatures of the several States to pass laws, making it expressly
to pa11 lo.wa the duty of the keepers of tl-aeir gaols, to receive and safe keep therein
lnllking it the
duty of keepers all prisoners committed under the authority of the United States, until
of their gaols to they shall be discharged by due course of the laws thereof, under the
ADD-17
CHAP. CXXVIII - An Act to prescribe an Oath of Office, and for other Purposes.
Be it enacted by the Senate and House of Representatives of the United States of

America in Congress assembled, That hereafter every person elected or appointed
to any office of honor or profit under the government of the United States, either in
the civil, military or naval departments of the public service, excepting the
President of the United States, shall, before entering upon the duties of such office,
and before being entitled to any of the salary or other emoluments thereof, take and
subscribe the following oath or affirmation: I, A. B., do solemnly swear (or
affirm) that I have never voluntarily borne arms against the United States since I
have been a citizen thereof; that I have voluntarily given no aid, countenance,
counsel, or encouragement to persons engaged in armed hostility thereto; that I
have neither sought nor accepted nor attempted to exercise the functions of any
office whatever, under any authority or pretended authority in hostility to the
United States; that I have not yielded a voluntary support to any pretended
government, authority, power or constitution within the United States, hostile or
inimical thereto. And I do further swear (or affirm) that, to the best of my
knowledge and ability, I will support and defend the Constitution of the United
States, against all enemies, foreign and domestic; that I will bear true faith and
allegiance to the same; that I take this obligation freely, without any mental
reservation or purpose of evasion, and that I will well and faithfully discharge the
duties of the office on which I am about to enter, so help me God; which said
oath, so taken and signed, shall be preserved among the files of the court, House of
Congress, or Department to which the said office may appertain. And any person
who shall falsely take the said oath shall be guilty of perjury, and on conviction, in
addition to the penalties now prescribed for that offence, shall be deprived of his
office and rendered incapable forever after of holding any office or place under the
United States.
APPROVED, July 2, 1862.
Act of July 2, 1862, ch. 128, 12 Stat. 502 (1862)
ADD-18

Nathan Michael Smith Appeal

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USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 1 of 65

[ORAL ARGUMENT NOT YET SCHEDULED]

United States Court of Appeals

NATHAN MICHAEL SMITH,

On Appeal from the

Counsel for Appellant

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

Project, amicus curiae, in support of Appellant.

Ruling under review. This is an appeal from a ruling by District Judge

citation. The judgment disposes of all parties claims.

Related cases. There are no related cases.

TABLE OF AUTHORITIES ................................................................................... iii

GLOSSARY OF ABBREVIATIONS ......................................................................ix

ISSUES PRESENTED FOR REVIEW ..................................................................... 1

STATEMENT OF THE CASE .................................................................................. 1

STANDARD OF REVIEW ....................................................................................... 6

SUMMARY OF ARGUMENT ................................................................................. 6

I. CAPTAIN SMITH SUFFERS INJURY IN FACT BECAUSE

A. The Officers Oath Compels Captain Smith To Choose

B. Little Requires Officers to Disobey the Presidents Orders

C. Captain Smith Has Standing Under The Oath-Taker Cases. ......... 19

II. THIS CASE DOES NOT RAISE A POLITICAL

A. The District Court Ignored Youngstown in Determining

B. This Case Does Not Involve Factual Questions Which The

C. The 2001 and 2002 AUMFs Do Not Authorize Hostilities

D. The District Court Erred In Giving Authoritative Status To

E. Congressional Funding of OIR Does Not Constitute the

CERTIFICATE OF COMPLIANCE ....................................................................... 53

CERTIFICATE OF SERVICE ................................................................................ 54

Finch v. Mississippi State Med. Assn, Inc.,

Wachovia Bank v. Schmidt,

CONSTITUTIONAL AND STATUTORY PROVISIONS

Continuing Appropriations Resolution, 2015,

Address to the Annual Meeting of the American Society of International

AUMF Authorization for Use of Military Force

CR Continuing Appropriations Resolution

DOD Department of Defense

ISIL Islamic State of Iraq and the Levant

NDAA National Defense Authorization Act

OIR Combined Joint Task-Force Operation Inherent Resolve

OLC Office of Legal Counsel

UCMJ Uniform Code of Military Justice

WPR 1973 War Powers Resolution

appeal was timely filed on December 19, 2016.

ISSUES PRESENTED FOR REVIEW

war against ISIL in Iraq and Syria?

to fight the war against ISIL?

STATEMENT OF THE CASE

will be subject to recall to active duty.

Kuwait headquarters of the Combined Joint Task-Force Operation Inherent

without specific statutory authorization. 4

As he investigated the issue, he could nowhere find an official, sustained,

domestic and to bear true faith and allegiance to the same.

prosecuted and imprisoned under the Uniform Code of Military Justice

To resolve his dilemma, Smith brought this action for a declaratory

case is finally resolved on the merits.

Captain Smith presented the following claims:

The President is violating the WPR by continuing to use U.S. military

The 2001 Authorization for Use of Military Force (2001 AUMF) 7

The Presidents commander-in-chief authority under Article II, 3

The government moved to dismiss the complaint under Fed. R. Civ. P.

no waiver of sovereign immunity permitting Smiths claims to proceed, and (4)

equitable relief against the President is not permitted.

The District Court granted the governments motion to dismiss on standing