The Obama administration is seeking to dismiss a lawsuit brought against it, which alleges that the military campaign against the Islamic State (ISIL) is being illegally waged.
In court filings this week, Department of Justice lawyers argued that the current war effort against ISIL—known as Operation Inherent Resolve—does not violate the War Powers Act. The 1973 law restricts the President’s powers to commit the US military to a sustained armed conflict for more than 60 days without Congressional approval.
The legislature has yet to formally approve an authorization for the use of military force (AUMF) against ISIL, despite the fact that the administration has been carrying out regular airstrikes in Iraq and Syria for nearly two years, in a campaign that also includes special operations forces on the ground in both countries.
But the DOJ claimed this week in court that Congress has lent its approval to the conflict in other ways, including through funding the military operations.
“The President has determined that he has the authority to take military action against ISIL,” the brief states, “and Congress has ratified that determination by appropriating billions of dollars in support of the military operation.”
The White House has also suggested the 2001 AUMF against al-Qaeda also provides the authority needed to fight ISIL.
An Army intelligence officer, Capt. Nathan Michael Smith, initially brought the suit, arguing that his oath to uphold the US Constitution required him to challenge the legality of the ISIL war.
The DOJ shot back, claiming in court that “the political branches have exercised their respective constitutional roles.”
“Their joint effort in support of Operation Inherent Resolve is precisely the kind of mutual participation that courts have looked to in dismissing war powers challenges,” the DOJ’s brief added.
The department also argued that Capt. Smith lacks legal standing in the case, and that disputes over war powers should be left between the legislature and the executive branch.
In a statement made Tuesday to the New York Times, Sen. Tim Kaine (D-Va.) rejected the administration’s argument.
“A decision to fund defense operations is vastly different than a war authorization,” the lawmaker said.
“Our troops risking their lives deserve to know whether Congress stands with them,” he added.
Kaine has been a consistent critic of his colleagues for not taking up an ISIL-specific war authorization.
He is also rumored to be near the top of Hillary Clinton’s Vice Presidential candidate shortlist.
