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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 2 of 65 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. USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 3 of 65 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 President’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 4 of 65 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 Preston’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 5 of 65 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), aff’d 886 F.2d 404 (D.C. Cir. 1989), reh’g 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 6 of 65 Finch v. Mississippi State Med. Ass’n, 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 Medellín 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), aff’d , 826 F.3d 466 (D.C. Cir. 2016).....................................................................................................................33 United States v. Bansal, 663 F.3d 634 (3d Cir. 2011) ................................................................................ 33 iv USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 7 of 65 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 8 of 65 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. §§ 801–946 .......................................................................................... 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 9 of 65 ADMINISTRATIVE MATERIALS Dep’t 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 Sec’y, 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 Nat’l 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. Int’l L. 5 (1988) .........................15, 16 Hickey, Donald R., The Quasi-War: America’s First Limited War, 17981801, 18 The Northern Mariner/le marin du nord, nos. 3-4, 2008 ..................... 14 Michel, Chris, Comment, There’s 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. Dep’t of Defense, The Legal Framework for the United States' Use of Military Force Since 9/11, vii USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 10 of 65 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 Officer’s Duty to Support and Defend the Constitution, 39 Reporter 43 (2012) .......................................................................................... 14 COURT DOCUMENTS Respondents’ Memorandum Regarding the Government’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 11 of 65 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 12 of 65 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 Court’s 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 Smith’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 13 of 65 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 Administration’s 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. §§1541–1548). (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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 14 of 65 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 6 Id. 10 U.S.C. §§801-946. 3 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 15 of 65 • 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 Administration’s 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 President’s “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 Smith’s 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 8 Pub. L. No. 107-40, 115 Stat. 224 (codified at 50 U.S.C. §1541 note). (App. 45.) Pub. L. No. 107-243, 116 Stat. 1498 (50 U.S.C. §1541 note). (App. 48.) 4 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 16 of 65 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 Smith’s claims to proceed, and (4) equitable relief against the President is not permitted. The District Court granted the government’s 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 Smith’s 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 Smith’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 17 of 65 judicially manageable standards, and is otherwise ill-equipped, to resolve them.” The court also ruled that Captain Smith’s 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 Smith’s injury was insufficiently concrete to support Article III standing. Smith’s 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 Officer’s 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 Smith’s 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 Smith’s reliance on the “oath of office” cases of the Supreme Court and this Court. 6 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 18 of 65 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 Smith’s complaint raised a “political question.” Its decision is flatly inconsistent with Youngstown, which involved President Truman’s order seizing steel mills whose continuing production he deemed essential for the ongoing war in Korea. Justice Jackson’s landmark concurrence insisted that the President’s war-making powers are at their “lowest ebb” when they violate express congressional commands, and that it is the judiciary’s task to determine whether the President has indeed violated statutory limitations on his authority. Smith’s 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 President’s power. Youngstown is flatly inconsistent with the District Court’s holding that “certain aspects” of this case are “completely committed to the political branches.” Youngstown’s principles, as elaborated in Zivotofsky II, also require rejection of the District Court’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 19 of 65 and 2002 cannot serve as the “specific authorizations” required by the WPR for the President’s decision to initiate “hostilities” against ISIL in 2014. Moreover, an adoption of the District Court’s 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 Officer’s Oath Compels Captain Smith To Choose Between Two Potential Harms. The Officer’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 20 of 65 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 Officer’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 21 of 65 Constitution became a matter of first importance. In 1862, Congress separated the Officer’s 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 Officer’s 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 Officer’s Oath and the Enlistment Oath remained separate. When Congress enacted the modern Officer’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 22 of 65 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 Officer’s Oath as if it were identical in substance to the Enlisted Oath—requiring 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 Officer’s 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). 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). 20 11 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 23 of 65 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 Court’s interpretation of the Massachusetts oath. It erroneously viewed Richardson as establishing a one-size-fits-all formula for oaths—state and federal, civilian and military— citing it for the proposition that the Officer’s Oath has “been interpreted to mean simply a commitment to abide by our constitutional system.” 25 The District Court’s 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. Id. at 684-85. 25 Id. at 677-78. 24 12 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 24 of 65 conscientious officers will immediately confront the dilemma posed by their Oaths—and some may respond by disobeying the President’s 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 President’s Orders When They Exceed His Powers as Commander-In-Chief. Captain Smith has standing not only under §3331 but under the Supreme Court’s 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 Story’s 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 Dep’t 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 25 of 65 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 Officer’s 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: America’s First Limited War, 17981801, 18 The Northern Mariner/le marin du nord, nos. 3-4, 2008, at 69. 14 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 26 of 65 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 President’s 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. Little’s 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 Little’s “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. Int’l L. 5 (1988) [hereinafter Glennon, Two Views]. The Supreme Court cited Professor Glennon’s article with approval in Zivotosky II, 135 S. Ct. at 2090. 30 6 U.S. (2 Cranch) at 179. 31 Id. 15 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 27 of 65 The facts of the present case are strikingly similar to those confronting the Little Court. As in Little, Congress carefully limited the President’s powers—in Captain Little’s case, through a specific statutory enactment, and in Smith’s case, through the WPR, which requires a specific congressional enactment. As in Little, the President’s 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 President’s 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 Court’s 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 Smith’s case. In the court’s 32 Glennon, Two Views, at 7. 438 U.S. 478 (1978). 34 For further discussion of the key passage, see text accompanying notes 64 to 67. 35 App. 76. 33 16 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 28 of 65 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 Court’s 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). App. 76. 38 438 U.S. at 489-90. 37 17 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 29 of 65 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 Smith’s case. The District Court also cited this Court’s 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 Court’s dismissal of a service member’s habeas petition collaterally attacking his court-martial conviction for disobeying a lawful command. The command was to wear a certain uniform on his 39 40 Id. 448 F.3d 403 (D.C. Cir. 2006). 18 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 30 of 65 deployment to the Republic of Macedonia as part of the United Nations Preventive Deployment Force. One of New’s 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 New’s deployment claim presented a non-justiciable political question in the special context of a courtmartial, “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 Smith’s claim. The Supreme Court held that a civilian official in Captain Smith’s 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. Id. 43 392 U.S. 236 (1968). 42 19 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 31 of 65 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)). 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), reh’g denied, 898 F.2d 161, vacated as moot, 915 F.2d 699 (1990). 45 20 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 32 of 65 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 Clinton’s 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 Rodearmel’s 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. 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 Circuit’s 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. Ass’n, Inc., 585 F.2d 765 (5th Cir. 1978). 53 666 F. Supp. 2d 123 (D.D.C. 2009). 50 21 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 33 of 65 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 OIR—that he believes exceeds the President’s authority, in violation of the WPR, and, hence, violates Captain Smith’s 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 judiciary’s 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). Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) (Jackson, J., concurring). 55 22 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 34 of 65 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 “wise”—“a ‘policy choice[ ] and value determination [ ] constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch’”—and 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 Smith’s 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 II’s 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 Shifa’s restrictive approach to Youngstown—since, as we shall show, its concerns about judicial fact-finding capacities are not applicable in the present case. 56 607 F.3d 836 (2010). Id. at 842. See generally, Chris Michel, Comment, There’s No Such Thing as a Political Question of Statutory Interpretation: The Implications of Zivotofsky v. Clinton, 123 Yale L.J. 1253 (2014). 57 23 USCA Case #16-5377 A. Document #1669239 Filed: 04/03/2017 Page 35 of 65 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 President’s powers over foreign affairs and his authority as commander-in-chief. In Smith’s case, as in Youngstown, Congress explicitly limited these powers by statute in the WPR. Youngstown refutes the District Court’s assertion that Smith’s challenge raises questions that are “completely committed to the political branches.” 58 In Youngstown, the Supreme Court rejected President Harry Truman’s 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 Jackson’s 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 President’s power is “at its lowest ebb,” since he is acting in 58 App. 89. 24 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 36 of 65 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 Jackson’s 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 Jackson’s 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 President’s war powers from Category Two to Category Three—taking it out of the “twilight zone” and making it clear that, henceforth, the commander-in-chief’s power is at “its lowest ebb” if he should ever defy the WPR’s strict time limits on unilateral 59 Youngstown, 343 U.S. at 638. This passage from Youngstown can be found in the final paragraph of Justice Black’s opinion of the Court, id. at 589. 61 S. Rep. No. 93-220 at 15 (1973). 60 25 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 37 of 65 presidential war making. To make this even clearer, the Committee begins its Report with this statement by Jacob Javits, the Resolution’s 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 Smith’s case, the District Court’s failure to discuss Youngstown is especially remarkable in light of the Supreme Court’s 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 Nixon’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 38 of 65 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 government’s 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., Medellín v. Texas, 552 U.S. 491, 523–532(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 Little’s 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 Court’s broad assertion that Captain Smith’s challenge raises issues “completely committed to the political branches.” 64 Const. art. II, §3, cl. 4. 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. 65 27 USCA Case #16-5377 B. Document #1669239 Filed: 04/03/2017 Page 39 of 65 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). See Press Release, Office of the Press Sec’y, 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. 68 28 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 40 of 65 (including the authority to carry out Public Law 107–40 and Public Law 107–243) 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 93–148). 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 President’s references (in a parenthetical) to the 2001 AUMF targeting Al Qaeda in Afghanistan and the 2002 Iraq AUMF targeting Saddam Hussein’s 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 72 App. 65, citing Obama Letter, supra (emphasis added). App. 96. 29 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 41 of 65 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 point—it is conceded on all sides. It suffices to trigger Section 8(c). 73 74 WPR, §8(c) (App. 28), 50 U.S.C. 1547(c) (emphasis added). Obama Letter, supra. 30 USCA Case #16-5377 C. Document #1669239 Filed: 04/03/2017 Page 42 of 65 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 Administration’s 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 official’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 43 of 65 least, because “‘Congress wrote the statute it wrote’—meaning, 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 Rice’s letter was transmitted on July 25, 2014—two 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). Letter from Susan E. Rice, Assistant to the President for Nat’l Sec. Affairs, to John A. Boehner, Speaker, U.S. House of Representatives (July 25, 2014). (App. 55.) 77 32 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 44 of 65 This conclusion requires straightforward legal reasoning, without the need for controversial findings of fact. Under the stringent “scrutiny” required by Youngstown, the President’s invocation of the 2002 AUMF cannot stand. The District Court’s failure to consider Ms. Rice’s 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 Committee—where 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. Rice’s 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), aff’d, 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. Rice’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 45 of 65 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 doesn’t 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 Bush’s proposal, see 147 Cong. Rec. 9949 (Oct. 1, 2001) (statement of Sen. Byrd). 34 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 46 of 65 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 O’Connor’s 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 Bush’s 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.) 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). 81 35 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 47 of 65 rejected proposals” in cases, like the present one, in which Congress selfconsciously 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 Preston’s speech, however, also failed to confront the plain language of the AUMF, despite his concession that ISIL’s 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 Bush’s 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. Dep’t 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. Preston’s speech is not paginated. As a consequence, we follow the government’s practice, and will quote from the speech without any page citations. 36 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 48 of 65 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 captives—not 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 selfconsciously 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 AUMF’s authority to include the initiation of hostilities. It expressly “affirmed” the President’s 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 Government’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 49 of 65 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 President’s 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 President’s power to engage in hostilities against groups that came into existence after September 11—and 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 Obama’s 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 Senate’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 50 of 65 suspected terrorists.” 90 He did not complain about the NDAA’s 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 Preston’s claims without confronting the fact that, both in 2001 and 2012, Congress had explicitly restricted the President’s war-making authority to “organizations” that had existed at the time of the September 11 attacks. The court’s uncritical reliance on Preston’s assertions fails to satisfy the “scrutiny” demanded by Youngstown. It should be reversed. D. The District Court Erred in Giving Authoritative Status to Stephen Preston’s Speech Justifying the War In its argument below, the government identified Stephen Preston’s speech as though it is an authoritative statement of the Obama Administration’s 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 Rice’s letter, Mr. Preston’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 51 of 65 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 Department’s Legal Adviser’s Office, Harold Koh, who had previously served as the Department’s 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 imminentthreat 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 52 of 65 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 53 of 65 the past, he was engaged in an educational mission—keeping 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 AUMFs—this would have made the speech much too long and tedious. Mr. Preston’s speech is only one of many informal efforts by government spokesmen to provide rationalizations for the President’s 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 Administration’s escalating warfare against ISIL, the OLC failed to publish a serious opinion explaining why the 2001 and 2002 Iraq AUMFs, authorized the President’s decision to take an end-run around Congress in 2014. The OLC’s silence is especially revealing when viewed in the context of the Administration’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 54 of 65 opinion which determined that the President’s 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) 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). 96 43 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 55 of 65 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, executivebranch officials seek OLC’s opinion on some of the weightiest matters in our public life: from the president’s authority to direct the use of military force without congressional approval, to the standards governing military interrogation of “alien unlawful combatants,” to the president’s power to institute a blockade of Cuba. Office of Legal Counsel . . . . 44 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 56 of 65 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 Committee’s 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 programs—ranging 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 WPR’s “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 Plaintiff’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 57 of 65 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, Congress’s 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 WPR’s “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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 58 of 65 Nevertheless, the District Court chose to ignore the WPR’s statutory dictate, and held that Congress’s 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 court’s 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 Smith’s 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 WPR’s effort to eliminate the “political question” issue by shifting Presidential warmaking from Youngstown Category Two to Youngstown Category Three. It is only by failing to recognize the central role that Justice Jackson’s 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 President’s war against ISIL by its funding decisions. But let us suppose, for purposes of the argument, that the District Court’s dismissal of the WPR’s “clear statement” rule had a substantial legal foundation. Nevertheless, its conclusion would not follow—because it has misread the 103 App. 91-93. 47 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 59 of 65 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 60 of 65 funds made available by this Act may be used in contravention of the War Powers Resolution.” 106 Congress’s 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 WPR’s 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 disclaimers—one 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 61 of 65 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 Court’s 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 Court’s 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 Act’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 62 of 65 claim that the act satisfies the WPR’s 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; Government’s Opposition Brief at 29 n.47. 51 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 63 of 65 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 Rule’s 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 64 of 65 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 USCA Case #16-5377 Document #1669239 Filed: 04/03/2017 Page 65 of 65 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 Court’s ECF system. /s/ David H. Remes DAVID H. REMES 54 USCA Case #16?5377 Document #1669242 Filed: 04/03/2017 Page 1 of 19 ADDENDUM USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 2 of 19 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 War Powers Resolution   Teaching American History USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 3 of 19 War Powers Resolution Public Law 93­148 93rd Congress, H. J. Res. 542 Joint Resolution Concerning the War Powers of Congress and the President. November 07, 1973 Resolved by the Senate and the House of Representatives of the United States of America in Congress assembled, SHORT TITLE SECTION 1. This joint resolution may be cited as the “War Powers Resolution”. PURPOSE AND POLICY SEC. 2. (a) It is the purpose of this joint resolution to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations. (b) Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. (c) The constitutional powers of the President as Commander­in­Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces. CONSULTATION SEC. 3. The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situation where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations. REPORTING SEC. 4. (a) In the absence of a declaration of war, in any case in which United States Armed Forces are introduced– (1) into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances; (2) into the territory, airspace or waters of a foreign nation, while equipped for combat, except for deployments which relate solely to supply, replacement, repair, or training of such forces; or http://teachingamericanhistory.org/library/document/war­powers­resolution/ ADD-2 1/5 4/2/2017 War Powers Resolution   Teaching American History USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 4 of 19 (3) in numbers which substantially enlarge United States Armed Forces equipped for combat already located in a foreign nation; the president shall submit within 48 hours to the Speaker of the House of Representatives and to the President pro tempore of the Senate a report, in writing, setting forth— (A) the circumstances necessitating the introduction of United States Armed Forces; (B) the constitutional and legislative authority under which such introduction took place; and (C) the estimated scope and duration of the hostilities or involvement. (b) The President shall provide such other information as the Congress may request in the fulfillment of its constitutional responsibilities with respect to committing the Nation to war and to the use of United States Armed Forces abroad (c) Whenever United States Armed Forces are introduced into hostilities or into any situation described in subsection (a) of this section, the President shall, so long as such armed forces continue to be engaged in such hostilities or situation, report to the Congress periodically on the status of such hostilities or situation as well as on the scope and duration of such hostilities or situation, but in no event shall he report to the Congress less often than once every six months. CONGRESSIONAL ACTION SEC. 5. (a) Each report submitted pursuant to section 4(a)(1) shall be transmitted to the Speaker of the House of Representatives and to the President pro tempore of the Senate on the same calendar day. Each report so transmitted shall be referred to the Committee on Foreign Affairs of the House of Representatives and to the Committee on Foreign Relations of the Senate for appropriate action. If, when the report is transmitted, the Congress has adjourned sine die or has adjourned for any period in excess of three calendar days, the Speaker of the House of Representatives and the President pro tempore of the Senate, if they deem it advisable (or if petitioned by at least 30 percent of the membership of their respective Houses) shall jointly request the President to convene Congress in order that it may consider the report and take appropriate action pursuant to this section. (b) Within sixty calendar days after a report is submitted or is required to be submitted pursuant to section 4(a)(1), whichever is earlier, the President shall terminate any use of United States Armed Forces with respect to which such report was submitted (or required to be submitted), unless the Congress (1) has declared war or has enacted a specific authorization for such use of United States Armed Forces, (2) has extended by law such sixty­day period, or (3) is physically unable to meet as a result of an armed attack upon the United States. Such sixty­day period shall be extended for not more than an additional thirty days if the President determines and certifies to the Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces. (c) Notwithstanding subsection (b), at any time that United States Armed Forces are engaged in hostilities outside the territory of the United States, its possessions and territories without a declaration of war or specific statutory authorization, such forces shall be removed by the President if the Congress so directs by concurrent resolution. CONGRESSIONAL PRIORITY PROCEDURES FOR JOINT RESOLUTION OR BILL SEC. 6. (a) Any joint resolution or bill introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty­day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and such committee shall report one such joint resolution or bill, together with its recommendations, not later than twenty­four calendar days before the expiration of the sixty­day period specified in such section, unless such House shall otherwise determine by the yeas and nays. (b) Any joint resolution or bill so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays. (c) Such a joint resolution or bill passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out not later than fourteen calendar days before the expiration of the sixty­day period specified in section 5(b). The joint resolution or bill so reported shall become the pending business of the House in question and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays. (d) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution or bill passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such resolution or bill not later than four calendar days before the expiration of the sixty­day period specified in section 5(b). In the event the conferees are unable to agree within 48 hours, they shall report back to their respective http://teachingamericanhistory.org/library/document/war­powers­resolution/ ADD-3 2/5 4/2/2017 War Powers Resolution   Teaching American History USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 5 of 19 Houses in disagreement. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than the expiration of such sixty­day period. CONGRESSIONAL PRIORITY PROCEDURES FOR CONCURRENT RESOLUTION SEC. 7. (a) Any concurrent resolution introduced pursuant to section 5(b) at least thirty calendar days before the expiration of the sixty­day period specified in such section shall be referred to the Committee on Foreign Affairs of the House of Representatives or the Committee on Foreign Relations of the Senate, as the case may be, and one such concurrent resolution shall be reported out by such committee together with its recommendations within fifteen calendar days, unless such House shall otherwise determine by the yeas and nays. (b) Any concurrent resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents), and shall be voted on within three calendar days thereafter, unless such House shall otherwise determine by yeas and nays. (c) Such a concurrent resolution passed by one House shall be referred to the committee of the other House named in subsection (a) and shall be reported out by such committee together with its recommendations within fifteen calendar days and shall thereupon become the pending business of such House and shall be voted on within three calendar days after it has been reported, unless such House shall otherwise determine by yeas and nays. (d) In the case of any disagreement between the two Houses of Congress with respect to a concurrent resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such concurrent resolution within six calendar days after the legislation is referred to the committee of conference. Notwithstanding any rule in either House concerning the printing of conference reports in the Record or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed. In the event the conferees are unable to agree within 48 hours, they shall report back to their respective Houses in disagreement. INTERPRETATION OF JOINT RESOLUTION SEC. 8. (a) Authority to introduce United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances shall not be inferred— (1) from any provision of law (whether or not in effect before the date of the enactment of this joint resolution), including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution; or (2) from any treaty heretofore or hereafter ratified unless such treaty is implemented by legislation specifically authorizing the introduction of United States Armed Forces into hostilities or into such situations and stating that it is intended to constitute specific statutory authorization within the meaning of this joint resolution. (b) Nothing in this joint resolution shall be construed to require any further specific statutory authorization to permit members of United States Armed Forces to participate jointly with members of the armed forces of one or more foreign countries in the headquarters operations of high­level military commands which were established prior to the date of enactment of this joint resolution and pursuant to the United Nations Charter or any treaty ratified by the United States prior to such date. (c) For purposes of this joint resolution, the term “introduction of United States Armed Forces” includes the assignment of member 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. (d) Nothing in this joint resolution— (1) is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties; or (2) shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities or into situations wherein involvement in hostilities is clearly indicated by the circumstances which authority he would not have had in the absence of this joint resolution. SEPARABILITY CLAUSE http://teachingamericanhistory.org/library/document/war­powers­resolution/ ADD-4 3/5 4/2/2017 War Powers Resolution   Teaching American History USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 6 of 19 SEC. 9. If any provision of this joint resolution or the application thereof to any person or circumstance is held invalid, the remainder of the joint resolution and the application of such provision to any other person or circumstance shall not be affected thereby. EFFECTIVE DATE SEC. 10. This joint resolution shall take effect on the date of its enactment. CARL ALBERT Speaker of the House of Representatives. JAMES O. EASTLAND President of the Senate pro tempore. IN THE HOUSE OF REPRESENTATIVES, U.S., November 7, 1973. The House of Representatives having proceeded to reconsider the resolution (H. J. Res 542) entitled “Joint resolution concerning the war powers of Congress and the President”, returned by the President of the United States with his objections, to the House of Representatives, in which it originated, it was Resolved, That the said resolution pass, two­thirds of the House of Representatives agreeing to pass the same. Attest: W. PAT JENNINGS Clerk. I certify that this Joint Resolution originated in the House of Representatives.  W. PAT JENNINGS Clerk. IN THE SENATE OF THE UNITED STATES November 7, 1973 The Senate having proceeded to reconsider the joint resolution (H. J. Res. 542) entitled “Joint resolution concerning the war powers of Congress and the President”, returned by the President of the United States with his objections to the House of Representatives, in which it originate, it was Resolved, That the said joint resolution pass, two­thirds of the Senators present having voted in the affirmative. Attest: FRANCIS R. VALEO Secretary. TeachingAmericanHistory.org http://teachingamericanhistory.org/library/document/war­powers­resolution/ TeachingAmericanHistory.org is a project of the Ashbrook Center at Ashland University 401 College Avenue   Ashland, Ohio 44805 (419) 289­5411   (877) 289­5411 (Toll Free) info@TeachingAmericanHistory.org © 2006­2017 Ashbrook Center   Design by CiV Digital http://teachingamericanhistory.org/library/document/war­powers­resolution/ ADD-5 4/5 § 3331. Oath of office, 5 USCA § 3331 USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 7 of 19 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 USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 8 of 19 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. End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim toADD-7 original U.S. Government Works. 1 AUTHORIZATION FOR USE OF MILITARY FORCE, PL 107–40, September 18, 2001,... USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 9 of 19 PL 107–40, 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 107–40 (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. © 2017 Thomson Reuters. No claim toADD-8 original U.S. Government Works. 1 AUTHORIZATION FOR USE OF MILITARY FORCE, PL 107–40, September 18, 2001,... USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 10 of 19 (2) APPLICABILITY OF OTHER REQUIREMENTS.—Nothing in this resolution supercedes any requirement of the War Powers Resolution. Approved September 18, 2001. PL 107–40, 2001 SJRes 23 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim toADD-9 original U.S. Government Works. 2 AUTHORIZATION FOR USE OF MILITARY FORCE..., PL 107–243, October... USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 11 of 19 PL 107–243, 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 107–243 (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 105–235 (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; © 2017 Thomson Reuters. No claim toADD-10 original U.S. Government Works. 1 AUTHORIZATION FOR USE OF MILITARY FORCE..., PL 107–243, October... USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 12 of 19 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 102–1), 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 102–1),” 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 105–338) 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”; © 2017 Thomson Reuters. No claim toADD-11 original U.S. Government Works. 2 AUTHORIZATION FOR USE OF MILITARY FORCE..., PL 107–243, October... USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 13 of 19 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 107–40); 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 © 2017 Thomson Reuters. No claim toADD-12 original U.S. Government Works. 3 AUTHORIZATION FOR USE OF MILITARY FORCE..., PL 107–243, October... USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 14 of 19 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 105–338). (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 93–148), 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 102–1) 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 HISTORY—H.J. Res. 114 (S.J. Res. 45) (S.J. Res. 46): HOUSE REPORTS: No. 107–721 (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 107–243, 2002 HJRes 114 End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works. © 2017 Thomson Reuters. No claim toADD-13 original U.S. Government Works. 4 USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 15 of 19 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 Oaths. SEc. 1. Be it enacted by Senate and [ IIouse t?fl Representatives of the United States of America in Congress assembled, That the oath or affirmation required by the sixth article of the Constitution of the United States, shall be administered in the form following, to wit : " I, A. B. do solemnly swear or affirm (as the case may be) that I will support the Constitution of the United States." The said oath or affirmation shall be administered within three days after the passing of this act, by any one member of the Senate, to the President of the Senate, and by him to all the members and to the secretary ; and by the Speaker of the House of Representatives, to all the members who have not taken a similar o3.th, by virtue of a particular resolution of the said House, and to the clerk : and in case of the absence of any member froin the service of either House, at the time prescribed for taking the said oath or 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 Congress after every general election of Representatives, the oath or affirmation aforesaid, shall be administered by any one member of the House of Representatives to the Speaker; and by him to all the members pre-. Bent, and to the clerk, previous to entering on any other business; and to the members who shall afterwards appear, previous to taking their seats. The President of the Senate for the time being, shaJJ also administer the said oath or affirmation to each Senator who shall hereafter 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 affirmation, the same shall be administered to him by any one of the members of the Senate. SEc. 3. And be it further enacted, That the members of the several State legislatures, at the next sessions of the said legislatures, respectively, and all executive and judicial officers of the several States, who have been heretofore chosen or appointed, or who shall be chosen or 23 ADD-14 June 1, 1789. Constitution of tbe U. S. ru· ticle 6, page 19. . Form of the oath or affinna. tion to support the Constitution of' the United States, to be administered to the members ot the Senate and to the members of' the House of Representa. tives. Manner ofa.d. ministering the oath or affirma. tion to Speaker of the House of R.epresenta. tives. To ea.ch Sena. tor. To the mem. tlae !!eve· or ral State Jaturee,andtoa11 executive and judicial officert of the State•. USCA Case #16-5377 By whom the o11.ths or affirmations ehall Jle administered in the several Statea. To all officet'B or the U. States appointed, or to be appointed, before t.hey act. Ottth of se. cretary of the Seno.te and clerk of the House of Representll· tives. STA.TUU Document #1669242 FIRST CONGRESS. Filed: 04/03/2017 I. CH. 2. 1789. Page 16 of 19 SESS. appointed before· the first day of August next, and who shall then be in office shall within one month thereafter, take the same oath or affirmation where they shall have taken it before; which may be administe;ed by any person authorized by the law of the State, in which such office shall be holden, to administer oaths. 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 to execute th: duties. of their respective 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 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. SEc. 4. And be it further enacted, That all officers appointed, or hereafter to be appointed under the authority of the United States, shall, before they act in their respective offices; take the same· oath or ·affirmation, 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. · SEc. 5. And be it further enacted, That the secretary of the Senate, and the clerk of the House of Representatives for the time being, shall, at the time of taking the oath or affirmation aforesaid, each take an oath or affirmatioQ in the words following, to wit: "1, A. B. secretary of the 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. I. July 4, 1789. (Repealed.) Act of August 10, 1790, ch. 38, eec. 1 and 2. CHAP. II.-.O.n.IJ.ctfo't'layin.ga Duty on. Good4, Wares, and Merchandi:Ju imported into the United Statu.( a) 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 imported : (b) Be it by the Senate and. House bf Representatives of tlte United States of Amf:rica in assembled, That from and after the first day of August' next ensuing, the several duties hereinafter mentioned shall be laid on the following goods, wares and merchandises imported 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 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. act of Augoet 30, 1842, chap. 270. (b) The powerw of Congress to levy and collect taxea, dutie•, expoete and excises i• co.exten•in with the States. Loughborough v. Blake, 6 Wheat. 317; 4 Cond. Rep. 660. '. ADD-15 USCA Case #16-5377 Document #1669242 FIRST CONGRESS. SEss. I. CH. 2.1, Filed: 04/03/2017 25. 1780. not less five tons. burthen, empl.oyed between any of the distrscts of the Umted m any .bay .or nver, and having a license from the collector of the d1stnct to wh1ch such vessel belongs from entering and clearing for the term of one year, be extended to not exceeding fifty tons: provided, such vessels shall not have on board goods wares or merchandise, other than euch as are actually the growth 0 ; produce of the United States. SEC. 3. And be it further enacted, That so mach of an act, intituled, "An act to the collection of the duties imposed by law on the tonnage of ships or vessels, and on goods, wares and merchandises imported into the United States/' as hath rated the ruble of Russia at one hundred cents, be, and the same is hereby repealed and made nuU and void. APPROVED, September 29, 1789. Page 17 of 19 Exemption of vessels under 20 tons, from entering and clearing extended to vessela of 50 tons having on board good11, &c., the growth or produce of the U.S. Act of July 31, 1789. Act ofSept. 1, 1789. Ruble of Russia, rate of. Repealed. STATU'l'E CHAP. I. 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 Representatives of the United States of America in. Ctmgress assembled, That there be appropriated for the service of the present year, tlo be paid out of the monies which arise, either from the requisitions heretofore made upon the several states, or from the duties on impost and tonnage, the following 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 sum not exceeding one hundred and ninety thousand dollars for diecharging the warrants issued by the late board of treasury, and remaining unsatisfied; and a sum not exceeding ninety-six thousand dollars for paying the pensions to invalids. APPROVED, September 29, 1789. [Expired.] Specific ap. propriations of money for expenses of civil liet e.ud wu department; alao to discharge warnnt.e of late board of treasury, and for pensions to invnlide. S't CHAP. XXIV.-fn Au providing for the payTMnl of tk In'IJalid PemiunerJ nf the United $tatea. SECTION 1. Be it enacted by the &nate and Huuse of Representatives of the United States of America in Congress asst;mbled, That .the military pens!ons which have been granted and pa1d by the states re&pectively, in of the acts of the United in C?ngress assembled, to the invalids who were wounded and disabled durmg the late war, shall be continued and paid by the United States, from the fourth day of March last, for the space of one year, under such regulations as the President of the United States may direct. APPROVED, September 29, 1789. I. Sept. 29, 1789. Act of J11ly 16 1 1790, eh. 27. (Expired.] Military pen. sions heretofore paid by the State• to be paid from 4th March last for one and under what reg. ulationa. Sunm: I . Sept. 29, 1789. CHAP. XXV.-.8n .Ret to ruognize and adapt i1J tk Oms!itution of lk United [Repealed.) 8/atu the eatabliJmunJ of the 1\-oop railed ufllkr the J!uolvtt. of the United Act of April $talea in autm5kd, and for other purp01u theretn 111enl1ontd. 30, 1790, cb. 10, oec. 14. SECTION 1. Be it enacted by tl,e &nate and .House of Representa. Eetabliehment of 3d Oct. 1787, tives of the United States of America in Congress That 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 USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 FIRST CONGRESS. SEss. I. · Cn. 27. 96 Pay and a}. lowance of troope. To take oath eupport the Coneutution, and bear alle. giance to the United St&te11. to Troops to J>. governed by rulea and arti. clea of war. For frontiera, Preeident may call forth militia. Pay and eub. eimnce. Continuance of this act. STATU'U Page 18 of 19 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. SEc. 2. And be it further enacted, That the pay and allowances of the said troops be the same as have been established by the United States 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 noncommissioned officers and privates, who are or shall be in the service of the United States, shall take the following or affirmations, to wit: "I, A. B. do solemnly swear or affirm (as the case may be) that I will support the constitution of the United States." "I, A. B. do solemnly swear or affirm (as the case may be) to bear true allegiance to the United States of America, and to serve them honestly and faithfully against all their enemies or opposers whatsoever, and to observe and obey the orders of the President of the United of America, and the orders of the officers appointed over me.'' SEc. 4. And be it further enacted, That the said troops shall be governed by the rules and articles of war which have been established by the United States in Congress assembled, or by such ru1es and articles of war, as may hereafter by law be established. SEc. 5. And be it further enacted, That for the purpose of protecting the inhabitants of the frontiers of the United States from the ho.,tile incursions of the lQdians, the ·President is hereby authorized to call into service from time to time, such part of the militia of the states respectively, as he may judge necessary for the purpose aforesaid; and that their pay and subsistence while in eervice, be the same as the pay and subsistence of the troops above mentioned. SEc. 6. And be it furtlur enacted, That this act shall continue and be in force until the end of the next session of Congress, and no longer. APPROVED, September 29, 1789. I. Sept. 29, 1789. [Ezpired.] CHA.P, XXV 11.-.Hn .Bet tfJ alter the Time for the nut Muting of Congrw. 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. APPROVED, September 29, 1789. RESOLUTIONS. Su"ey directed by act of June 6, 1788, to lie made and re. . turned by Secretary of the 1.'reo.eury without delay. 1. REsOLVED, Thnt the Survey directed by Congress in their act of June the sixth, one thousand seven hundred and eighty-eight, be made and returned to the Secretary of the Treasury without delay ; and that the President of the United States be requP.sted to appoint a fit person to complete the same, who shall be allowed five dollars per. day whilst actually employed in the said service, with the expenses necessarily at· tending the execution thereof APPROVED, August 26, 1789. Recommendation to the Legielaturea of the eever.l St&t.u to pa11 lo.wa lnllking it the duty of keepers of their gaols to 2. RESOLV1W by the &nat!'. and House of Representati'Dcs of tht United States of Anurica it& Congress asstmbftd, That it be recommended to the legislatures of the several States to pass laws, making it expressly the duty of the keepers of tl-aeir gaols, to receive and safe keep therein all prisoners committed under the authority of the United States, until they shall be discharged by due course of the laws thereof, under the ADD-17 USCA Case #16-5377 Document #1669242 Filed: 04/03/2017 Page 19 of 19 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