War Powers Cases, Part 4: Maxwell v Trump

by Mary W Maxwell, LLB

In this series I am recounting the history of war powers cases and analysing them. The second-most recent case is the 2016 filing by Captain Nathan Smith (see Part 1).  The most recent case is mine, as far as I am aware. Case number 18-1127.

I filed in the United States District Court of New Hampshire in November 2017, and after it was dismissed on January 5, I filed an appeal of that dismissal in the First Circuit, United States Court of Appeals.  To see the entire 30-page Appeal Brief, in pdf, please go here. 

My suit seeks to enjoin the president against warring without Congress’s say-so and also against presidential use of nuclear weapons absent a congressional policy on that.  In this article I only quote The Argument from my appeal brief. Of course I was restricted to addressing what I took to be the District Court’s mistakes in dismissing my case.

I said that the district court was wrong in holding that I lack standing, and wrong in holding that the matter is non-justiciable based on the Political Question doctrine.  I think I was saved by the bell by the Supreme Court’s 2016 ruling in Robins v Spokeo — which is not a war powers case but has widened the “standing” criteria.

Oh, and I took the liberty of adding something about the right to challenge a president, as I noticed that in the government’s argument against Nathan Smith’s appeal, the US Attorney’s brought up a new issue — the absurd idea that we must show deference to the president, or that he has immunity. Can you imagine.

As can be seen in the above photograph,  I am happy to show deference as long as the Constitution doesn’t get in the way.

ARGUMENT

1. THE DISTRICT COURT INCORRECTLY DISMISSED PLAINTIFF’S COMPLAINT ON THE GROUNDS OF STANDING.

It appears that if the appellant can prove she has standing and that her request does not ask the court to deal with a political question, her case can be heard on the merits. What must she present in order to have standing? The most recent authority is from Spokeo v. Robins, 136 S. Ct. 1540, 1553, 194 L. Ed. 2d 635 (2016).

From the majority opinion:

“Our cases have established that the “irreducible constitutional minimum” of standing consists of three elements. Lujan, 504 U.S., at 560, 112 S.Ct. 2130. The plaintiff must have:

(1) suffered an injury in fact,

(2) that is fairly traceable to the challenged conduct of the defendant, and

(3) that is likely to be redressed by a favorable judicial decision. Id., at 560– 561, 112 S.Ct. 2130; Friends of the Earth, Inc., 528 U.S., at 180–181, 120 S.Ct. 693.”

“…at the pleading stage, the plaintiff must “clearly … allege facts demonstrating” each element (Warth, supra, at 518, 95 S.Ct. 2197.613).
Appellant did so. In her pleadings she said:

1. She is injured by imminent war.

2. The injury is traceable to President Trump’s saying explicitly that he can start a war if he decides to do so. [He has said he might unleash “fire and fury like the world has never seen.” Appellant recalls how the US boasted in 1991 that the attack on Baghdad would begin with “shock and awe” – and that did happen.]

3. A favorable decision – a restraint on the president – would redress the injury, at least as much as can be done legally.

Granted there is no magic wand. Restoring the President to the position of having to ask Congress’s permission to start a war will not necessarily result in a lack of war. The members of Congress might explicitly permit him to start a war. And it is always the case – and Americans can’t control it – that another country may war on us. But Appellant does not ask for a magic wand; she wants rule of law to be restored.

A court case that goes against Appellant’s prevailing in this suit is Lujan v. Defenders of Wildlife (1992). Plaintiffs said their injury was that the loss of endangered species, although far away, would be a loss to them. Justice Scalia, writing for the majority, said

“This Court has consistently held that a plaintiff claiming only a generally  available grievance about government, unconnected with a threatened concrete interest of his own, does not state an Article III case or controversy. See, e.g., Fairchild v. Hughes,258 U.S. 126, 129-130.

“Vindicating the public interest is the function of the Congress and the Chief Executive. … permitting all citizens to sue, regardless of whether they suffered any concrete injury, would authorize Congress to transfer from the President to the courts the Chief Executive’s most important constitutional duty, to ‘take Care that the Laws be faithfully executed.’”

Appellant, however, does claim a concrete injury.

The District Court held, citing Mahorner v. Bush (2002), that a plaintiff must establish that he has suffered.

Plaintiff James Mahorner alleged that he will suffer an increased chance of losing his life if the President initiates a military conflict. Granted, every person will have an increase of that sort once a war is on. Appellant, however, does meets  (1) “an injury in fact – an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not ‘conjectural or hypothetical’ – and which is ‘fairly traceable’ to the challenged act, and ‘likely’ to be ‘redressed by a favourable decision.’” jurisprudential tests for her injury being concrete, particularized, and actual or imminent.

Robins v. Spokeo discusses the meaning of ‘concrete’ and ‘particularized’:

Particularized – at 1415:

For an injury to be “particularized,” it “must affect the plaintiff in a personal and individual way.” [This does not mean that many others are not suffering similarly] 742 F.3d, at 413. … the court wrote that “Robins’s personal interests in the handling of his credit information are individualized rather than collective.” Ibid.

Concrete – at 1548:

A “concrete” injury must be “de facto ”; that is, it must actually exist… When we have used the adjective “concrete,” we have meant to convey the usual meaning of the term — “real,” and not “abstract.”…

at 1549 – “Concrete” is not, however, necessarily synonymous with “tangible.” Although tangible injuries are perhaps easier to recognize, we have confirmed in many of our previous cases that intangible injuries can nevertheless be concrete. See, e.g., Pleasant Grove City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) (free speech); … This does not mean, however, that the risk of real harm cannot satisfy the requirement of concreteness.” [i.e., a risk of real harm can satisfy the requirement of concreteness.]

‘actual or imminent’ is discussed in City of Los Angeles v Lyons, which is cited in Lujan:

To satisfy the “case or controversy” requirement of Art. III, a plaintiff must show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged official conduct, and the injury or threat of injury must be “real and immediate,” not “conjectural” or “hypothetical.

1. THE DISTRICT COURT INCORRECTLY DISMISSED PLAINTIFF’S COMPLAINT AS A NON-JUSTICIABLE POLITICAL QUESTION.

Appellant asks that the President be restrained from doing something illegal. A president’s job is about as political as you can get. Negotiation with other countries about war (or trade or anything) is, too, essentially political. The Framers already took care of the war issue for us, however. They designed a constitution with bad human nature in mind at all times – unabashedly so.

Madison and colleagues knew it would be folly to entrust the war power to an individual. Historian Max Farrand, in his 1996 4-volume set, The Records of the Federal Convention of 1787, quotes Eldridge Gerry of Massachusetts that he “never expected to hear in a republic a motion to empower the Executive alone to declare war.” None of us did either, as we were taught that such a thing was dumped out with full vigor during that hot summer in Philadelphia.

Today, 231 years later, Appellant relies on the two controlling authorities, Youngstown v Sawyer, and the Constitution itself.

Urgency

The situation in 2018 is very threatening. Here are six examples of the reigning confusion:

(1) During the Obama presidency, Trump criticized the bombing of Syria, yet in 2017 he bombed Syria. And on April 11, 2018 a tweet went out to the whole world as follows, from Donald J. Trump @realDonaldTrump:

“Russia vows to shoot down any and all missiles fired at Syria. Get ready Russia, because they will be coming, nice and new and ‘smart!’ You shouldn’t be partners with a Gas Killing Animal who kills his people and enjoys it!”.

Yet there is no reliable evidence that Syria’s leader Bashar al-Assad is a “gas- killing animal.” He is accused of hurting his own people, but the same was said of Saddam Hussein gassing the Kurds at Halabja; it was later proven to be incorrect.

(2) Obama also used an atrocity story to justify the bombing of Libya, and said we had to do it because of “who we are”:

“To brush aside America’s responsibility as a leader and — more profoundly — our responsibilities to our fellow human beings under such circumstances would have been a betrayal of who we are…. Some nations may be able to turn a blind eye to atrocities in other countries. The United States of America is different. And as president, I refused to wait for the images of slaughter and mass graves before taking action.”

Needless to say there is nothing in the Constitution, or in any AUMF or other legislation, to make the US the world’s humanitarian policeman.

(3) As for the identification of the terrorists in the Middle East, the matter is so ambiguous that Rep Tulsi Gabbard (herself a veteran, with two tours in Iraq) is sponsoring a bill entitled Stop Arming the Terrorists Act. It is mirrored by a bill in the Senate. The complaint is that the US supports ISIL.

(4) Senator Lindsey Graham, who has been in Congress for twenty years, and before that was an Air Force colonel, is paving the way for war, completely unmindful of the Constitution. He told The Atlantic of December 2017:

“I would say there’s a three in 10 chance we use the military option…. If the North Koreans conduct an additional test of a nuclear bomb—their seventh—I would say 70 percent…. War with North Korea is an all-out war against the regime…. There is no surgical strike option. Their [nuclear- weapons] program is too redundant, it’s too hardened, and you gotta assume the worst, not the best.”

(5) Wars do not just happen. There is now enough revisionist history of World War I, such as that written by Gerry Docherty and Jim MacGregor, to prove that its origin had nothing to do with the assassination of Duke Ferdinand. It usually takes interested individuals to make wars happen. At present, the campus of the Pentagon, which is presumably owned by the people, is mainly occupied not by our military but by the offices of private defense contractors. Inevitably their interest in weaponry influences war.

(6) The appointing of decision makers is a secret. According to BusinessInsider.com of May 24, 2017:

“Defense Secretary James Mattis was taken by surprise when the US Air Force dropped a Massive Ordnance Air Blast bomb, on Islamic State targets in Afghanistan in April…. The decision to use the largest nonnuclear bomb in the US’ arsenal was made by General John Nicholson, the Army general commanding forces in Afghanistan, and was not discussed with Mattis, which reportedly upset him.”

Appellant asks: Who, then, will drop nuclear bombs? Has President Trump already subcontracted the nuclear football to someone? And if the Hawaiian panic was started because of human error, is there also room for an “error” by a nameless Pentagon person?

After physicist Robert Oppenheimer had, with his team at Los Alamos, constructed and successfully tested the first atomic bomb, he quoted Hindu Scripture: “I am become death, the destroyer of worlds.” If Appellant is to become a destroyer of the world she wants to have a say in it.

All of this is very urgent, and damage will be irrevocable.

President Donald Trump would not reveal whether he authorised the plan to drop the massive bomb, which had never before been used in combat, instead stating that he had given the military “total authorization.”

Remand

Is it within the power of this court to remand the present case back to the District Court for a hearing? Yes. The District judge could rule in Plaintiff’s favour (as he should have originally). Then the government would probably appeal, and if Appellant lost she could seek leave to take it to the Supreme Court.

Not only could the Supreme Court reaffirm the aging Youngstown precedent, that war without Congress’s say-so is illegal, it could inspire all Americans. Parchment mania could ensue. The following is from a dissent by Justice Douglas in which Justice Blackmun joined, in Sierra Club v. Morton (1992):

“The critical question of ‘standing’ would be … put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated … in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and bulldozers and where injury is the subject of public outrage. Contemporary public concern for protecting nature’s ecological equilibrium should lead to the conferral of standing upon environmental objects to sue for their own preservation. … A ship has a legal personality. … The corporation sole − a creature of ecclesiastical law – is an acceptable adversary …

“So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries … or even air that feels the destructive pressures of modern technology …. The river, for example, is the living symbol of all the life it sustains or nourishes — fish, aquatic insects, otter, deer … and all other animals, including man, who are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for the ecological unit of life….. Those people who have a meaningful relation to that body of water – whether it be a fisherman, a canoeist, a zoologist, or a logger – must be able to speak for the values which the river represents and which are threatened with destruction…..”

That, as Appellant sees it, is the issue of “standing” in the present case and controversy. If the Douglas idea materialized she would be allowed to speak for an ecological unit, the Great Republic, or simply the US Constitution. The balance of powers in the Constitution controls the balance between the weak and powerful in our society — an almost miraculous feat.

III. The Sovereign and the Equities

What is the Judiciary? It is the third branch of government. But what is government? In the United States, the government is the people. They, collectively, are the sovereign.

In the pending appeal case filed by Nathan Smith, who is an active-duty Captain in the US Army, we see the counsel for Appellee Trump (US Attorney H. Thomas Byron, III) responding to Smith’s appeal by raising the spectre of presidential immunity. This seems odd as Smith’s District Court filing was dismissed on other grounds – standing and the political question.

Trump wants the case dismissal affirmed. Smith’s plaint was that as an officer he had taken an oath to defend the Constitution and in his judgment that the war he was waging (enthusiastically) against ISIL was unconstitutional. He asks for declaratory relief. The appeal is being heard in the DC Circuit Court. The Appellee claims: “The Plaintiff cannot obtain equitable relief against the president….” In support of that, the following 5 points are offered by appellee:

1. Plaintiff’s request for a declaratory judgment against the President is improper. Ordinarily, injunctive relief is not available against the President. Franklin v. Massachusetts, 505 U.S. at 802-03; id. at 826 (Scalia, J., concurring) “[N]o court has authority to direct the President to take an official act.”

Note: The Defendant was the Secretary of Commerce, not the president.

2. Here [in Smith’s case] the equities counsel against entering relief that would entail “judicial intrusion into the Executive’s ability to conduct military operations abroad.” Munaf v. Geren, 553 U.S. 674, 700 (2008).

Note: If Smith won the case about the unconstitutionality of war, that would indeed intrude into the Executive’s ability to conduct war. The president should have thought of that before.

3. Nixon v. Fitzgerald, 457 U.S. 731, 750 (1982) “The President’s unique status under the Constitution distinguishes him from other executive officials.”

Note: This was a lawsuit for damages. The Supreme Court held that a president has absolute immunity from damages liability predicated on his official acts. (Of course he has no immunity against a criminal charge.)

4. The same is true as to declaratory relief. Newdow v. Roberts, 603 F.3d 1002, 1012 (D.C. Cir. 2010) “A court—whether via injunctive or declaratory relief—does not sit in judgment of a President’s executive decisions.”

Note: The complaint was that the president was going to use religious words at his Inaugural Ceremony. The court dismissed it saying a president can run his Inauguration as he wishes.

5. Mitchell v. Laird, 488 F.2d 611, 616 (D.C. Cir. 1973) “[A] court would not substitute its judgment for that of the President, who has an unusually wide measure of discretion in this area, and who should not be judicially condemned except in a case of clear abuse amounting to bad faith.”

Note: Smith is not interested in judicially condemning the president. Anyway that quote is not near the theme of Judge Wyzanski’s ruling. Of great interest is his statement:

Nor do we see any difficulty in a court facing up to the question as to whether because of the war’s duration and magnitude the President is or was without power to continue the war without Congressional approval.

But the aforesaid question invites inquiry as to whether Congress has given, in a Constitutionally satisfactory form, the approval requisite for a war of considerable duration and magnitude. Originally Congress gave what may be argued to have been its approval by the passage of the Gulf of Tonkin Resolution, 78 Stat. 384 (1964). …However, that resolution cannot serve as justification for the indefinite continuance of the war since it was repealed by subsequent Congressional action, 84 Stat. 2055 (1971).

Amazing! Congress did take action – by repealing its resolution. However, the case was dismissed for “the political question.”

In any case, the matter of the wrongness of suing a president can be put to rest now. In Clinton v. Jones, 520 U.S. 681 (1997), Paula Jones sued President Clinton for sexual harassment. That would not be relevant to Nathan Smith’s case, or the Appeal at hand, as Jones sued the president in his private capacity. But luckily, a clear statement, of usefulness to us, appears as an aside in Clinton v. Jones at 628:

“Of greater significance, it is settled that the Judiciary may severely burden the Executive Branch by reviewing the legality of the President’s official conduct, see, e. g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579.”

CONCLUSION

The dismissal of this case, Maxwell v. Trump, by the District Court was incorrect. Appellant has standing and the matter is justiciable.