Samuel R. Howe


More than seventeen years after the attacks of September 11, 2001, the United States continues to battle terrorist organizations inspired by or derived from al Qaeda under the legal aegis of the 2001 Authorization for the Use of Military Force. The government has interpreted this law as providing expansive authority to conduct military operations against actors that did not even exist in 2001, including the Islamic State of Iraq and Syria (“ISIS”). Congress has largely supported this effort in annual authorizing legislation and by funding the campaign against ISIS.

Despite this permissive legal environment, the government pressed for even greater flexibility in Smith v. Obama , a 2016 challenge to the legal basis for the anti-ISIS campaign, arguing that the war powers are subject to the political question doctrine and thus outside the purview of the courts. The district court accepted this argument, contravening recent Supreme Court decisions that narrow the doctrine’s scope. In doing so, the Smith court cast doubt on the primacy of Congress in bringing the United States into war.

In response, this Note offers three insights. First, it assesses historical decisions in cases implicating executive branch war powers in light of the modern political question doctrine. Second, it critiques the Smith court’s failure to squarely confront the separation of powers questions presented by the case. Finally, it offers a series of recommendations for Congress and the courts to avoid the pitfalls of the political question doctrine in similar cases in the future.

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