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Case number is 16-5377, Nathan Michael Smith, appellant, versus Donald J. Trump, President of the United States.

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Mr. Reams for the appellant, Mr. Ackerman for the appellant, Mr. Byron for the appellee.

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That's gonna sit.

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Which reminds me, my first time trying a case in Gaston County, North Carolina.

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It was a jury trial.

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I was very nervous.

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And I sat at the wrong table.

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And the judge in front of the whole jury said, Mr. Griffith, you sit over there.

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I was not the judge.

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No, you were not the judge.

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But you know the courthouse well.

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I know the courthouse.

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You know the courthouse well.

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OK.

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I recognize this isn't the first time for any of you.

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Good morning.

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Good morning.

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How are you, sir?

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Hi.

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Your honors, my name is David Brains.

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I will argue standing.

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And Mr. Ackerman, my co-counsel, will argue political question.

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We'll split our time equally six minutes each, reserving three minutes for rebuttal, which we'll also divide.

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Of course, we'll keep going until your honors run out of questions.

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In August 2015, Captain Smith received odd orders requiring him to wait to support Operation Inherent Resolve, the official name of the war against ISIS.

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Based on his review of the information available to him, Smith concluded that the war is illegal because the President did not yet and has not since gotten specific statutory authorization for the war required by the War Powers Resolution.

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If Smith is right that the war is illegal, his oath of office and the Supreme Court's decision in Little v. Marine obligated him to disobey his orders.

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How did Little obligate him to disobey orders?

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Little established the supremacy of congressional power over executive power in this area.

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It said that a military officer must disobey.

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in order of the President that it's all for Dares.

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And we can screw Little B Marine to apply here and to require Captain Smith to disobey his orders.

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We believe that that decision reinforces his oath of office, which by its terms, commits him to defend and protect the Supreme Court.

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Isn't your better standing argument, Alan?

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Allen is an extremely strong president in favor.

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I mean, little Boreen, that's a tort liability case.

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I hear you, but why don't you start with Allen?

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OK.

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Allen involved.

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I'm going to ask you some questions about it.

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It's not a softball.

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It's a setup.

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You're in rare form today.

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Allen involved.

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a policy requiring school boards to distribute textbooks to parochial schools.

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The school board members claimed that that could require them to violate the establishment clause.

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The Supreme Court held that

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the imposition of that requirement and the dilemma that it would put the school board members in constituted increase sufficient to give them standing.

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Because they would have been removed from office.

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That's correct.

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That's an important dilemma.

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We don't have that here.

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We haven't alleged that here.

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There's nothing in the complaint that alleges there will be any military discipline here.

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That's a failing of pleading that's staggering here.

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You've argued it in your briefs, but nowhere in your complaint do you say that he will be disciplined.

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How do we know he will be?

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Well, I don't think it's speculation to assume that a soldier who disobeys orders of his superiors will be disciplined by a court-martial.

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Why didn't you allege that?

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You allege nothing about military discipline.

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Well, we may not have said it in our complaint.

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We did say it.

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And that's where it needs to be said, right?

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We look at standing as of the filing of the complaint, what you say in the complaint.

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I agree, sir.

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Captain Smith's claim in that respect in note 11 of its opinion where it said that Captain Smith confronted the

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a significant probability that he would.

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I mean, we need to be really careful about jurisdictional issues when we have somebody before us who's asking us to stop an action of the executive branch, right?

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I mean, these are constitutional issues.

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And we have case law that says we need to be really careful about such questions and such as standing questions.

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Furthermore, I mean, as of May 2018,

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He has no military obligation.

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He's not on active duty right now, right?

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He's not on active duty.

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We don't know if he's recalled to this theater of action, do we?

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Well, the district court found, as a matter of fact, in footnote 11, that there was a significant likelihood or a substantial likelihood that he would be redeployed to support this operation.

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And I think the court has to accept the district court's findings of that, even though this has been a- What was the basis for that?

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What was the basis for that finding?

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How do we know that he'll be redeployed to that area of action?

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We don't know.

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We don't know.

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We don't know.

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It doesn't sound like an imminent injury, then, does it?

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And as of May 2018, he's out of the military altogether.

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That's correct, Your Honor.

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But between now and then, the district court found that it was a substantial possibility that he would be recalled.

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And between now and then,

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he faces that injury that he alleges.

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But we don't know that he'll be disciplined.

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Of course.

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We don't know, sir.

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But the Atea's decision, which Your Honor wrote, points out that there need only be a substantial risk.

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We believe that the district court found that there would be a substantial risk.

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Prospective injury does not need to be impending or imminent.

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What is the injury?

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The injury is that, and this goes back to the original issue, that so then little require him to disobey illegal orders.

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We're now particularly under Allen.

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That's where the discussion has gone.

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Is this more like Alan or is it more like and another pronunciation, something like a roadie D'Armold, the Clinton appointment case.

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Uh, in other words, in the Clinton appointment case or a dear more roadie or more, whatever it is, the court noted that the defendant, the plaintiff himself was not being called upon to commit any unconstitutional act.

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Uh, is the

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Officer here being called upon himself committee any unconstitutional act.

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Well, he's being he would be required to support an operation.

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That was ultra-virus.

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And that would be the constitutional injury, ultra-virus of the president's powers.

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I thought you claimed the constitutional injury was that he would be required to violate his oath of office.

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Well, it's intertwined.

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If he has to support and defend the Constitution, that's his oath.

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He, against all enemies, foreign and domestic.

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Who's the enemy?

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Who's the enemy?

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There's no enemy here, Your Honor.

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So how does that violate his oath?

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Because regardless, he's still required to support and defend the Constitution of the United States.

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Against all enemies, foreign and domestic.

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Yes, sir.

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But we believe that his obligation extends to defending the Constitution at large.

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And that... You know, every federal officer takes the same oath.

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That's not unique.

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You doubtless know this, and it's not unique to military officers.

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Every federal officer takes that oath.

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i guess your honor but so does that mean that uh... because somebody in the state department is and somehow involved that they have standing to sue uh... over the legality of the uh... uh... operation in iraq and syria of course not your honor it's just got just the military this is just the military it's an oath that is separately one of the people in the state department

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What about the people within the Office of the President take that oath as well?

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They take that oath, but it is not under a statute that is specific to the military, and it is not under a statute whose legislative history shows that it was meant to apply to officers in the military.

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The statute you're talking about is the oath?

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Statute?

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The oldest statute.

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3631?

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Yes.

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It's derived just like the other, the oath.

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It's exactly the same as the oath that is taken by every other federal officer.

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I mean, there's a difference.

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The president takes an oath derived from the Constitution.

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Judges take an oath derived from the Judiciary Act of 1789.

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But these other oaths are all derived from the same source, and it was the ironclad oath of loyalty

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which began during the Civil War and then went on and on and on.

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More provisions were added to it until the Supreme Court declared it unconstitutional in Cummings v. Missouri.

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So the origin of both oaths, military and civilian, are exactly the same.

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Yes, Your Honor, but first we distinguish the oath that the military officers have to take by the legislative history that shows that they were once required to obey the President, and now they're required to obey the Constitution.

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In effect... No, why is it the same oath, and how is he being required

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to validate any more than the foreign service officer in the apartment of the state in the Clinton case.

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Well, that's where we believe that little Boreen comes into play.

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And of course, that depends on your honors of interpretation.

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Do you seriously think that there's any more obligation on

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a military person created by little versus marine and the obligation created by law on all other officers to obey their superiors.

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By statutory law, yes I do believe that little changes the equation for military officers.

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Military officers have a greater duty to disobey their superiors to make their independent judgment on close questions of constitutional law and then obey their

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disobey their superiors have a greater obligation to do so than a foreign service officer in the Department of State.

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The arguable yes, Your Honor.

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Is arguably good enough to get a standing here, Councilman?

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I don't know why it would be even arguable that they have a greater duty to disobey their superiors.

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The military has a greater duty to disobey their superiors than a foreign service officer does.

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If there is such a duty,

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It's not clear to me why it's any different for those two.

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Well, just to make clear, um, Captain Smith is not posing to disobey in order.

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He wants.

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I thought that was the gist of his.

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Oh, state of his standing.

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His oath taking argument was that either has to comply with these oaths or disobey orders.

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That's correct, Your Honor.

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Right.

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And then if he isn't considering disobeying orders to be an element, a factual element of what's going on here, then why does he have standing?

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Because the order would require disobedience if it is illegal.

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He believes it's illegal.

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He has not received authoritative guidance from the administration as to whether it's legal or not.

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And therefore, he's asking the court to declare that it's illegal.

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Now, if I may address a point that Your Honor raised, Judge Sentel and Judge Griffith raised, he's not trying to block the war against ISIS in Iraq.

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He's not trying to enjoin the conduct of war, which I believe is Your Honor's issue.

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He's only asking for a declaratory judgment that Operation Inherent results in.

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How is that any more than an advisory opinion, which we cannot constitutionally grant?

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because it's it's it's more than an advisory a decorative judgment force has to have some real-world effect to be more than just a matter of opinion i mean that's not precisely the language of the cases but we pretty much said you can't just come in and get an opinion of law it has to have actual effect in a real country get your cover your honor as we said at the end of our reply free

[00:15:27] Speaker 05:
Presumed, and the Supreme Court presumes that if a statute is declared to be unconstitutional, it's to be presumed that the executive branch will obey the court's rulings and implement its decision.

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So that doesn't bring us back to that you're asking us to stop the war.

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No.

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We're asking.

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I'll explain why.

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You're saying that your man has standing because it would be an unconstitutional war.

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you're saying that what you want to do for a different kind of people and i think what's the effect of that it makes an article three question you say well you know when the executive will comply with it we're and we're second to come together we're saying that the

[00:16:13] Speaker 05:
authorization for Operation Inherent Resolve violates the War Powers Resolution because the President did not get the Congressional authorization that the War Powers Resolution requires.

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If the Court rules that Operation Inherent Resolve is invalid for that reason,

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we can presume, and the Supreme Court said we should presume, that the President will look at that decision and go to Congress to get the necessary approval.

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I don't think you can do any four-packs where you were before.

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You're asking us to say that what the President – what President Obama was doing or President Trump is now doing in the Middle East is

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You use the terms back and forth unconstitutional or illegal.

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I understand your more specific argument is it's valid in the War Powers Act, but that makes it unconstitutional because you'd say the President didn't have the power underneath.

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Nobody talked about Youngstown in the briefs, which surprised me greatly.

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Well, as a matter of fact, we did talk about Youngstown in the briefs.

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Very briefly.

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Well, I'll leave that to Professor Ackerman.

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Which I like.

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I like things to be briefed.

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Don't misunderstand me.

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Understood, Your Honor.

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But under Youngstown, you would say that this would be unconstitutional if the War Powers resolution is not complied with.

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Is that correct?

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I think that Professor Ackerman will address that issue.

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I won't pretend to speak for him.

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Are you familiar with Holtzman versus Schlesinger?

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Yes.

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That's comparable to this case, isn't it?

[00:17:50] Speaker 05:
Yeah.

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I don't see how it is, Your Honor.

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They were Air Force officers, in addition to Elizabeth Holtzman, who were the plaintiffs in that case.

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And Justice Douglas issued an injunction against the president, or against the Secretary of Defense, to stop the bombing in Cambodia.

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And you know what happened to that injunction?

[00:18:12] Speaker 05:
Yes, sir.

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But we're not seeking an injunction.

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It was eight to one.

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The Supreme Court vacated it.

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We're not asking for an injunction.

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We're asking the Court to declare that there has been a violation of the law so that the president can bring himself into compliance with the law, which we presume that he will go and get authorization from Congress.

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All right, thank you.

[00:18:57] Speaker 03:
May I please, Gordon?

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One point in response to the previous standing conversation.

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There are two statutes, the oath statute for officers

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which requires the oath to support and defend the Constitution, and a second statute for enlisted personnel, which does not require enlisted personnel to support and defend the Constitution, but to obey the orders of the President.

[00:19:31] Speaker 07:
Well, no, it does.

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I'm reading from it.

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It's support and defend the Constitution against all enemies, foreign and domestic.

[00:19:36] Speaker 07:
I think the provision you want to refer to is in the 3331.

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There's an independent obligation to bear true faith and allegiance to the Constitution.

[00:19:46] Speaker 07:
Oh, I'm not talking about the officers.

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I'm talking about the enlisted person.

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And that's what I was reading.

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Yes, please read that again.

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Do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic, and that I will bear true faith in Jesus the same.

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It's the other – I'm sorry.

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But this is key.

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That is to say, these two statutes, as Judge Randolph suggested, emerge out of the Civil War experience.

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It is of fundamental importance whether officers followed Robert E. Lee or not.

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The fate of the Union depended on it.

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and defending the Constitution against all enemies, foreign and domestic, was of key importance here, while the enlisted personnel are supposed to follow the orders of the president.

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Now, as the late Justice Scalia says in his book, it is a fundamental principle of statutory interpretation to respect variant

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meetings, which are focused on the military problem.

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The military is central to the coercive authority of the state, unlike any other officer of the United States government, other than the court.

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That is to say, if the President of the United States were to order, not to say that he will, but if he were to order the

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First Infantry Division to occupy Capitol Hill, the officers have an obligation under their oath not to do it in a way that the Secretary of State and others – they are important, but they are not central to the coercive authority of the state.

[00:21:56] Speaker 03:
But they're all – it's a different statute.

[00:21:59] Speaker 04:
That's a yes or no question.

[00:22:00] Speaker 03:
Yes.

[00:22:01] Speaker 03:
It's a different statute.

[00:22:02] Speaker 03:
Yes, they do have exactly the same language.

[00:22:04] Speaker 03:
The same language, but in a different statutory context.

[00:22:07] Speaker 03:
It's a different statute that's requiring this open.

[00:22:11] Speaker 03:
And we have to interpret the statutes.

[00:22:13] Speaker 03:
That's what your job is.

[00:22:15] Speaker 04:
So if the President told the Director of the United States Marshals Service, send in the U.S.

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Marshals to occupy Capitol Hill,

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They would not have a duty to disobey him, but if he told the general to send in the troops, they would have enough.

[00:22:31] Speaker 04:
You're correct.

[00:22:32] Speaker 04:
Do you have anything to base that on?

[00:22:33] Speaker 04:
The two statutes.

[00:22:35] Speaker 04:
There are two statutes.

[00:22:36] Speaker 04:
That's right.

[00:22:36] Speaker 04:
There are two statutes.

[00:22:37] Speaker 04:
But these are identical language, and that's another thing Scalia says.

[00:22:39] Speaker 04:
If you have identical language and statutes, you presume it to mean the same thing.

[00:22:44] Speaker 03:
But these statutes, well, we have a number of statutes here, and we have two focused as

[00:22:51] Speaker 03:
Judge Randolph pointed out to this very crucial moment in the history of the Union, and they are self-consciously different, and the modern versions are self-consciously different.

[00:23:07] Speaker 03:
And they are directed to military officers.

[00:23:10] Speaker 03:
You can interpret other statutes in their appropriate statutory context.

[00:23:16] Speaker 06:
But to return to the purpose, Professor Ackerman, of the original statute from which both of these things were derived was to make it easier to prosecute Confederate spies.

[00:23:30] Speaker 03:
That was the purpose.

[00:23:31] Speaker 03:
One of the purposes, sir.

[00:23:34] Speaker 03:
Another purpose was to?

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as clearly as possible, commit the graduates of West Point, a very small number of elite personnel and other officers, to the Union.

[00:23:54] Speaker 03:
There are several purposes.

[00:23:56] Speaker 03:
To return to the merits, our position on political question does not invite this Court

[00:24:05] Speaker 03:
to assess the wisdom of particular military strategies, as in al-Shifa and al-Jabr.

[00:24:12] Speaker 03:
What focuses instead on the district court's failure to acknowledge that the War Powers Resolution requires Article III judges to recognize that President Obama's powers were at their lowest ebb in initiating hostilities against ISIS in 2014.

[00:24:28] Speaker 03:
And that in the words of Justice Jackson's canonical opinion in the Steele seizure case, the judiciary was obliged to scrutinize with care

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the president's rationale for failing to obtain an AUMF within 60 days.

[00:24:45] Speaker 03:
Since the integrity, as he insists, of our system of checkman balances is at stake.

[00:24:51] Speaker 07:
What is – what is our recent case in Bin Ali Jabir – I may not be pronouncing that right – what does that do to our political questions, your students?

[00:24:59] Speaker 03:
Just think we – this – and this is also responsive to Judge Santel – a previous question of Judge Santel.

[00:25:09] Speaker 03:
If you issue your declaratory judgment, it does not change any military strategies initiated after this declaratory judgment.

[00:25:24] Speaker 03:
It declares, however, that if the President

[00:25:29] Speaker 03:
that the President Obama and President Trump have, in good faith, misinterpreted the requirements of the war power resolution, and that the President has 60 days to gain the consent of Congress.

[00:25:47] Speaker 03:
If he fails to do it, he has 30 days to remove the troops, period.

[00:25:55] Speaker 03:
This is an operational declaration

[00:25:58] Speaker 03:
which informs the present president that, in good faith, he has, in fact, failed to confront the key legal issues involved in interpreting the AUMFs of 2020.

[00:26:15] Speaker 07:
And I'm sorry, I understand that argument.

[00:26:18] Speaker 07:
How does that relate to Bin Ali Jaber?

[00:26:20] Speaker 03:
That is to say, these two cases involve

[00:26:26] Speaker 03:
judgments on military strategy.

[00:26:30] Speaker 03:
The case that the declaratory judgment here does not involve.

[00:26:36] Speaker 07:
So if we agreed with you, tell me what is the legal analysis the court would go through to make the determination whether

[00:26:48] Speaker 07:
the action against ISIL.

[00:26:50] Speaker 07:
Precisely.

[00:26:51] Speaker 03:
So let's turn, because the claim, President Obama recognized the relevance of the Four Powers Resolution, which is a necessary and proper clause, application of the War Powers Clause of the Constitution.

[00:27:04] Speaker 03:
He recognized it in making his speech of September 10th, announcing an open-ended conflict against ISIS, and then following it up with the letter of September 27th.

[00:27:16] Speaker 03:
the – and then asserted without giving – without any – providing any opinion of a serious kind by the OLC or the White House Council at any time that the two previous AUMFs cover this case.

[00:27:33] Speaker 03:
Legal question number one.

[00:27:35] Speaker 03:
Second, National Security Advisor Rice wrote a letter to the Speaker of the House two months earlier declaring that the 2002 AUMF no longer has – is supported any use of American troops as of December 18th, 2011, three years before.

[00:28:05] Speaker 03:
This is on the basis of the consequence of President Obama's refusal to renew the forces agreement.

[00:28:22] Speaker 03:
because the government of Iraq refused to permit court-martial jurisdiction against terrorists.

[00:28:31] Speaker 03:
And that was a condition for renewing it, and it didn't happen.

[00:28:35] Speaker 03:
And so we ended our occupation forces at that point.

[00:28:40] Speaker 03:
And this is briefed and presented in the district court.

[00:28:43] Speaker 03:
So the question of law is, given that Secretary of Rights

[00:28:52] Speaker 03:
stated that the 2002 AUMF does not apply.

[00:28:58] Speaker 03:
It has not applied for three years in an official form to the House of Representatives.

[00:29:06] Speaker 03:
What justified the president two months later to assert that it did?

[00:29:11] Speaker 03:
That's the question of law.

[00:29:15] Speaker 07:
Is that the question, or wouldn't we start the inquiry by picking up the two AUMFs and reading them and then having to make a determination whether ISIL is covered by them, right?

[00:29:28] Speaker 07:
Wouldn't we start with just the text of the AUMFs?

[00:29:30] Speaker 03:
I think not.

[00:29:31] Speaker 03:
I think you should defer to the present.

[00:29:36] Speaker 03:
The question is whether, given the fact that the president, knowing everything that he knows, has interpreted them in a different way.

[00:29:46] Speaker 03:
Interpreted them in this way.

[00:29:48] Speaker 03:
To do it the way you suggest, Judge Griffiths, would engage in the kind of activity that, upon reading and rereading the two cases, Ali Jaber and

[00:30:01] Speaker 03:
is precisely the sort of thing that the court rightly

[00:30:07] Speaker 03:
is reluctant to do.

[00:30:09] Speaker 07:
I thought part of the learning of Zivotovsky won.

[00:30:12] Speaker 07:
I thought that part of the learning of Zivotovsky won was that when it is a task that we are equipped to do, we're not equipped to make, in El Shifa, we're not equipped to make military judgments about whether certain activities are appropriate or not.

[00:30:30] Speaker 07:
But one of the things that courts can do is pick up

[00:30:33] Speaker 07:
act of Congress and interpret it.

[00:30:37] Speaker 07:
And I thought that was part of what the Supreme Court was teaching us in Zbitovsky 1, is there's a statute there, read the statute, construe it.

[00:30:47] Speaker 07:
So that's why I began my question.

[00:30:48] Speaker 07:
Aren't we supposed to start with AUMF?

[00:30:50] Speaker 07:
And you're saying no.

[00:30:52] Speaker 03:
You should start with the AUMF, but then defer to the judgment of the president on the basis of all the information available to him that he could not, in good conscience, continue the status of forces agreement given the Iraqi government's refusal to guarantee court-martial jurisdiction and protection of arms.

[00:31:19] Speaker 06:
Very interesting, but there's a preliminary question that's lurking over it all, and that is that the courts have never subjected the President of the United States to a declaratory judgment, which is what you're seeking here.

[00:31:34] Speaker 06:
Do you agree with that historical representation?

[00:31:38] Speaker 03:
There are two responses here.

[00:31:42] Speaker 06:
Well, the first question is, do you agree with that representation that I just made, that the courts have never subjected the President of the United States to a declaratory judgment?

[00:31:53] Speaker 06:
Yes.

[00:31:54] Speaker 06:
So this would be a first.

[00:31:56] Speaker 03:
Because we couldn't identify with clarity.

[00:32:00] Speaker 03:
the officers subordinate to him in the State Department, et cetera, who should be named.

[00:32:11] Speaker 03:
If we could, we would amend the complaint to do that.

[00:32:16] Speaker 03:
But you see, because it isn't only the Secretary of Defense.

[00:32:23] Speaker 03:
It isn't only the military.

[00:32:25] Speaker 03:
There is the CIA, which is engaging in operations.

[00:32:30] Speaker 03:
agencies and we don't know which they are.

[00:32:35] Speaker 03:
And that was the reason we named the President.

[00:32:38] Speaker 03:
But this is – if we could – because we didn't want to have you issue a declaratory judgment than someone who is not within

[00:32:53] Speaker 03:
The chain of command operates the legal issue number two on the 2001.

[00:33:08] Speaker 03:
Of course, there are many, but I don't want to – I just want – oh, I do want to insist, though, that first – and this is troubling.

[00:33:19] Speaker 03:
This letter, official letter to the House – the Speaker of the House by a national security adviser, Rice, was filed and then mysteriously disappeared sometime in 2016.

[00:33:40] Speaker 03:
We only tracked it down through the wayback machine.

[00:33:48] Speaker 03:
the officer.

[00:33:51] Speaker 03:
No official statement of the administration has ever addressed the legal problem that we have.

[00:34:03] Speaker 03:
I have isolated.

[00:34:04] Speaker 03:
It's for you to decide that.

[00:34:07] Speaker 03:
But it is especially important under the principles of Justice Jackson's opinion

[00:34:17] Speaker 03:
classical concurrence opinion, to scrutinize with care the rationales offered up by the president when in a Type 3 case, which is this case,

[00:34:34] Speaker 03:
where there's a statute that provides clear rules, 60 days, 30 days, and clear standards.

[00:34:45] Speaker 03:
You have to – it's the initiation of hostilities.

[00:34:49] Speaker 03:
There's no question under Section 8C.

[00:34:52] Speaker 03:
that – which is a very broad definition – that the President initiated hostilities.

[00:34:58] Speaker 03:
And therefore, the question is, why didn't he obtain the authorization in 60 days, as required?

[00:35:08] Speaker 03:
And the answer that the President gave was the 2002 AUMF, especially concerning Syria, because we are invading Syria.

[00:35:19] Speaker 03:
The – there's an Iraq – was it an Iraqi resolution?

[00:35:23] Speaker 03:
There's another problem with the Iraqi resolution.

[00:35:26] Speaker 03:
It says, buy.

[00:35:27] Speaker 07:
And I want to.

[00:35:27] Speaker 07:
And, Professor, one of the concerns I have is we don't – as Judge Randolph pointed out, this would be extraordinary because no declaratory judgment has been entered against the president.

[00:35:39] Speaker 07:
But also extraordinary wouldn't it – and that – where's Congress?

[00:35:42] Speaker 07:
Congress doesn't seem to be complaining about this.

[00:35:44] Speaker 07:
They're appropriating funds for it and earmarking them for it.

[00:35:48] Speaker 07:
for the operation in Syria.

[00:35:52] Speaker 07:
What we have here, it seems to be, is no conflict between the branches on this.

[00:36:02] Speaker 07:
the courts come along and intervene where congress doesn't seem to be as concerned as you are, or as others may be, that would be itself extraordinary.

[00:36:16] Speaker 03:
The entire point of the War of Power Resolution

[00:36:21] Speaker 03:
was to place the burden.

[00:36:23] Speaker 03:
And it's apparent.

[00:36:25] Speaker 03:
I mean, basically what happens in 1971, the Gulf of Tonkin Resolution is repealed.

[00:36:30] Speaker 03:
And President Nixon making the same claim of commander-in-chief power escalates the war.

[00:36:39] Speaker 03:
And it's precisely that which the war power resolution is fighting for.

[00:36:43] Speaker 07:
But doesn't that history actually hurt your argument in that, look how that was resolved before.

[00:36:48] Speaker 07:
It was resolved between the political branches.

[00:36:50] Speaker 03:
The steel seizure case, there are several different questions here.

[00:36:59] Speaker 03:
The first one is, as the district court below held, the Baker against Carr criteria.

[00:37:09] Speaker 03:
which you are invoking when you're talking about the approach of creations.

[00:37:12] Speaker 03:
I'll get back to the facts about that at the moment.

[00:37:15] Speaker 03:
Are those the right criteria, or is steel seizure the right case?

[00:37:22] Speaker 04:
What Judge Griffith suggests, at the very least, take it out of box three of the tripartite steel company analysis.

[00:37:35] Speaker 04:
because there's not the conflict between the President and the Congress that triggers the Category 3 denomination of controversy.

[00:37:49] Speaker 04:
And by the way, I prefer to think of it as names and more of a Regan triumvirate, because that actually was the law of the case where Steel Company was a concurrence.

[00:37:58] Speaker 04:
It was not in the majority.

[00:38:00] Speaker 03:
It should be emphasized, I should say, that when we're going back to Steele's issue for a moment, Mr. Justice Frankfurt, who is Kohlgrove against Green, which is Brennan, finally changes that in Baker against Carr, he agrees that the Steele's, he does not uphold a political question doctrine.

[00:38:29] Speaker 03:
But rather, in an analytically identical case, it insists on the type 3 characterization, both in a steel sheet.

[00:38:45] Speaker 03:
What we have is, to actually is voted into effect over President Truman's veto.

[00:38:56] Speaker 03:
just as this case, the WPR, is voted over President Nixon's veto.

[00:39:06] Speaker 03:
Taff Hartley grants the president, however, as does the WPR, a 60-day special unilateral period for suspending strikes.

[00:39:20] Speaker 03:
with our national security reasons, as generals tell him, that if we don't have the production, we're going to endanger the troops in Korea.

[00:39:28] Speaker 03:
The – here, the – it's an, if anything, easier case.

[00:39:35] Speaker 03:
We have a 60-day period for the president to do something.

[00:39:41] Speaker 03:
He can exercise your bilateral power for 60 days, but then he has to get – in this period, get congressional approval.

[00:39:48] Speaker 03:
So this is analytically the same kind of case.

[00:39:52] Speaker 03:
And – not quite.

[00:39:56] Speaker 03:
Go ahead, please.

[00:40:00] Speaker 03:
Yes, but you're right.

[00:40:06] Speaker 06:
If President Young found Sheet and Tube versus Truman, it was Young's house.

[00:40:12] Speaker 03:
I understand.

[00:40:12] Speaker 03:
You're absolutely right on the question of who should be the proper defendant in this case.

[00:40:19] Speaker 03:
And I've explained as best I can why we did what we did.

[00:40:25] Speaker 03:
But we would, if the only problem,

[00:40:31] Speaker 03:
is taking the President out and putting all the people if we could identify – all the officials if we could identify them in – I'm with you on that.

[00:40:43] Speaker 03:
The – but – Well, that's not the point.

[00:40:47] Speaker 06:
The point is that we don't have to decide whether there are any other problems if you can't sue the President.

[00:40:54] Speaker 06:
That's the end of the case.

[00:40:56] Speaker 06:
Why should we go off into the blue yonder deciding whether this is a political question or whether this is that and so on and so forth?

[00:41:06] Speaker 03:
The reason we sued the president is because we could not identify inferior officers.

[00:41:13] Speaker 03:
That's the reason.

[00:41:20] Speaker 03:
But to return to the question about the cooperation between the two, that of course presupposes that it's Baker against Carr.

[00:41:32] Speaker 03:
rather than the steel seizure case, which is applicable because the statute itself, the WPR, the War Powers Resolution itself, says appropriations, measures,

[00:41:49] Speaker 03:
shall not be construed as explicit authorization.

[00:41:54] Speaker 03:
First.

[00:41:55] Speaker 04:
Second.

[00:41:56] Speaker 04:
Does that necessarily mean they can't be considered in determining with which block this belongs in, that is to say the third or box of the third or second?

[00:42:05] Speaker 03:
Well, you see, what box three means is you have to interpret the statute.

[00:42:11] Speaker 03:
That's it.

[00:42:16] Speaker 03:
And then you have to interpret the two AUMFs, which are said to be justifications for not

[00:42:26] Speaker 03:
getting explicit consent within a 60-day period.

[00:42:31] Speaker 03:
So once we say how we have to interpret the statute, then a section – I think I sometimes mess up a bit on this.

[00:42:38] Speaker 07:
Well, and that's – as I understand it, that's the government's argument.

[00:42:40] Speaker 07:
No, we're in the zone where the president is acting with congressional authority.

[00:42:46] Speaker 07:
That's the argument.

[00:42:47] Speaker 03:
Yes, but let's get to the Youngstown problem.

[00:42:48] Speaker 03:
I don't think there's a Youngstown problem on this.

[00:42:50] Speaker 03:
It's not a Youngstown problem.

[00:42:51] Speaker 03:
These supplemental authorization bills.

[00:42:54] Speaker 03:
at the most generous count, represent the money for these wars, represents 4% of the total amount.

[00:43:06] Speaker 03:
Moreover, the government and district court, more importantly,

[00:43:11] Speaker 03:
cite the summary of the bill, the authorization bill, without actually looking at the statute itself.

[00:43:22] Speaker 03:
The statute, as we elaborate, contains explicit disclaimers that this is in compliance with the war power resolution.

[00:43:31] Speaker 03:
So even if it were the case that we should not interpret the – we shouldn't follow the statutory command.

[00:43:43] Speaker 07:
Let's hear from the government now.

[00:43:45] Speaker 07:
Thank you very much.

[00:43:56] Speaker 08:
Good morning.

[00:43:58] Speaker 08:
May I please report Thomas Byron from the Justice Department for the government.

[00:44:03] Speaker 08:
I want to start, as plaintiffs have been standing, Your Honor, and I want to emphasize at the outset that the plaintiff in this case has not identified any illegal or unconstitutional conduct of his own that he would be compelled to undertake.

[00:44:18] Speaker 08:
and that would constitute the kind of injury, in fact, that might confer standing.

[00:44:24] Speaker 08:
Instead, the only illegality he complains of is what he says the president has done without congressional authorization.

[00:44:32] Speaker 07:
Do you agree that Allen is where we ought to be looking for standing?

[00:44:35] Speaker 08:
Well, Judge Griffin, I think there are really important differences between this case and Alan that I'd like to talk about.

[00:44:41] Speaker 07:
And I do think, as you suggested... Does that mean, no, we shouldn't be looking at Alan?

[00:44:44] Speaker 08:
So I think looking at Alan doesn't get the plaintiffs where they need to be, is the short answer to that.

[00:44:48] Speaker 07:
Well, I'm not concerned with that.

[00:44:51] Speaker 07:
I'm concerned with what we ought to be doing.

[00:44:52] Speaker 07:
What's the standard we should use?

[00:44:54] Speaker 07:
And is Alan the law that we ought to be using?

[00:44:56] Speaker 08:
So, Your Honor, this court has not yet addressed whether the footnote in Owlette continues to be good law in light of subsequent Supreme Court decisions.

[00:45:06] Speaker 08:
The Supreme Court has cited it later, right?

[00:45:10] Speaker 08:
Approvingly.

[00:45:12] Speaker 08:
I don't think the court has considered the question whether an oath alone is adequate.

[00:45:18] Speaker 08:
But I also think it's really important to recognize that notwithstanding the language of Allen, what the court was considering there was a situation where the board members themselves believed that they would be compelled to take action that would itself violate the Constitution.

[00:45:34] Speaker 08:
and that that is the significant difference between that case and this.

[00:45:40] Speaker 08:
So that here, the plaintiff has not identified any unconstitutional conduct that he has been ordered to undertake or would conceivably.

[00:45:48] Speaker 04:
So doesn't that bring it within the Rodier-Moller, however that case is pronounced?

[00:45:53] Speaker 04:
Yes, Your Honor.

[00:45:53] Speaker 08:
The precedent from this court.

[00:45:54] Speaker 08:
I think that's exactly right, Dixon.

[00:45:56] Speaker 08:
Rodier-Moller was

[00:45:57] Speaker 08:
directly on point, the three-judge court in that case correctly recognized that if the only claim is that a federal official has sworn an oath to protect and defend the Constitution, but hasn't identified any illegal or unconstitutional conduct of his own, that there is no standing.

[00:46:22] Speaker 07:
The participation in the unlawful war

[00:46:26] Speaker 07:
would be a violation of his oath.

[00:46:29] Speaker 08:
No, Judge Griffith.

[00:46:30] Speaker 08:
So looking now at the War Powers resolution, if that's the source or at the Constitution, nothing in either source identifies any

[00:46:42] Speaker 08:
right or obligation on the part of individual military officers to refuse to participate in a war merely because the individual officer questions whether Congress and the President are aligned with respect to authorization to conduct the operation.

[00:47:02] Speaker 08:
So again, if you look at the text of the War Powers Resolution, nothing there suggests that Congress intended to confer individual rights or responsibilities or liability on military officers themselves.

[00:47:15] Speaker 08:
It's solely about the ongoing violence.

[00:47:17] Speaker 07:
I'm getting back to, you were trying to distinguish the facts of this case from Allen.

[00:47:22] Speaker 07:
I guess I don't understand it.

[00:47:24] Speaker 07:
In Allen, the members of the school board feared that they would be removed from office if they did not comply, right?

[00:47:34] Speaker 07:
How is that different than this case?

[00:47:36] Speaker 07:
He fears that if he refuses to engage in a war that he thinks is unlawful.

[00:47:45] Speaker 07:
and unconstitutional, that he will be disciplined.

[00:47:50] Speaker 07:
Tell me how that's different.

[00:47:51] Speaker 08:
So Judge Griffith, I think there's a couple points on which it's different.

[00:47:54] Speaker 08:
I want to emphasize at least two or three.

[00:47:57] Speaker 08:
One is that unlike in

[00:48:00] Speaker 08:
Alan, there's no suggestion that merely by participating in Operation Inherent Resolve and on the theory that the President and the Congress have not done what the plaintiff here believes they should do, that that makes his participation unconstitutional.

[00:48:19] Speaker 08:
It violates

[00:48:20] Speaker 08:
his oath.

[00:48:21] Speaker 08:
No, I think that's not right, Judge Griffith, and that's what... If it is unconstitutional, he's violated his oath, hasn't he?

[00:48:27] Speaker 08:
No, I think that's not... that's not how it works, Judge Griffith, and there's no... Well, I'm sorry, what do you mean, that's not how it works?

[00:48:33] Speaker 08:
Well, so, Judge... how do you tell me how it works?

[00:48:36] Speaker 07:
And maybe you want to adopt a different tone.

[00:48:39] Speaker 04:
Sorry, Your Honor, I certainly didn't mean to... In Rodeirmo, the Foreign Service Officer would have been complying with the directives of an unconstitutionally appointed

[00:48:49] Speaker 04:
Secretary of State, but he was not himself being directed to commit anything that was independently unconstitutional for his act.

[00:49:01] Speaker 04:
What does an oath mean then?

[00:49:03] Speaker 07:
I have a question for you.

[00:49:04] Speaker 08:
What does an oath mean?

[00:49:05] Speaker 08:
Judge Griffith, I think an oath is a solemn undertaking to respect

[00:49:12] Speaker 08:
the obligation to protect and defend.

[00:49:16] Speaker 04:
I'm going back to the difference between the general and Alan.

[00:49:19] Speaker 04:
In Alan, the officials would actually have been themselves taking the act of appropriating funds unconstitutional where the actions being conducted by a subordinate officer generally are not in themselves unconstitutional.

[00:49:36] Speaker 04:
It's something that their department or their country is doing.

[00:49:39] Speaker 04:
It's unconstitutional.

[00:49:41] Speaker 08:
I think that's exactly right, Judge Santona.

[00:49:43] Speaker 08:
Looking at the difference in the constitutional issue presented in Allen and in this case, the constitutional issue in Allen, the establishment clause concern, was directed at the government officials

[00:49:57] Speaker 08:
who were plaintiffs in that case.

[00:50:00] Speaker 08:
In this case, the constitutional directive is as between the president and the Congress, between the two political branches.

[00:50:10] Speaker 08:
There's no obligation imposed on individual military officers with respect to whether those two branches have aligned themselves in their ongoing dialogue about authorization for military force.

[00:50:25] Speaker 08:
And so that, I think, Judge Santel's exactly right.

[00:50:29] Speaker 08:
That's how I see the difference between this case and Allen.

[00:50:34] Speaker 08:
And I think, Judge Griffith, you're right to point out that the court in Allen, in the footnote, which is a very brief discussion of the standing question, didn't address it in those terms, to be sure.

[00:50:45] Speaker 08:
But I think in light of subsequent cases in the Supreme Court, it's important to recognize that there does need to be an injury in fact identified.

[00:50:54] Speaker 08:
And that's, I think, the only way to make sense of that case, that holding.

[00:50:59] Speaker 08:
So, again, we think that is the key difference here, that nothing in the War Powers Resolution, nothing in the constitutional provisions at issue suggest that the kind of injury the plaintiff here is alleged is adequate to support a finding of injury in fact.

[00:51:16] Speaker 08:
So on that basis, the district court correctly recognized there's no standing here.

[00:51:22] Speaker 08:
The questions that the plaintiff has raised about whether it's substantial likelihood or imminence is required really don't make a difference.

[00:51:36] Speaker 08:
I would say that footnote above it doesn't say anything about the substantial likelihood standard.

[00:51:43] Speaker 08:
Instead, it was just about whether

[00:51:45] Speaker 08:
a dispute is capable of repetition, perhaps avoiding review, slightly different question.

[00:51:52] Speaker 08:
But again, none of that matters because the injury they've identified is not a cognizable injury for standing purposes.

[00:52:01] Speaker 08:
I'd like to point out as well that both standing

[00:52:04] Speaker 08:
and the political question doctrine are independent bases.

[00:52:08] Speaker 08:
And Judge Randolph, as you pointed out, there is also the concern that the president should not be subject to a declaratory judgment.

[00:52:17] Speaker 08:
That's equally an independent basis that this court could use to affirm the dismissal in this case.

[00:52:24] Speaker 08:
If the court has no further questions.

[00:52:25] Speaker 08:
Yeah, I have a question.

[00:52:27] Speaker 07:
So what if the President were to initiate hostilities with a nation or organization that wasn't plausibly within these AUMFs?

[00:52:39] Speaker 07:
Would that be subject to review?

[00:52:42] Speaker 08:
Judge Griffith, I think whether, no, I think is the short answer.

[00:52:46] Speaker 08:
No.

[00:52:47] Speaker 08:
No.

[00:52:47] Speaker 08:
And the reason is this, that the question about the authorization with respect to the president's power and Congress's power as allocated by the Constitution and as spoken to in various ongoing dialogues between the two political branches is one that is simply not suited for judicial resolution.

[00:53:07] Speaker 08:
Now, what you've asked is whether a harder case on the merits than this one?

[00:53:12] Speaker 08:
because this one is an easy case on the merit, but of course we're not asking the court to reach the merit.

[00:53:17] Speaker 08:
Whether a harder case on the merits would be justiciable, I think no, because those justiciability concerns are properly raised and considered.

[00:53:25] Speaker 07:
I wonder what circumstances would the judiciary be entitled to limit the president's exercise of his war power?

[00:53:35] Speaker 07:
Help me understand that.

[00:53:37] Speaker 08:
It sounds to me like you're saying none.

[00:53:39] Speaker 08:
There are none.

[00:53:39] Speaker 08:
Well, I think what I'm saying is we haven't seen any yet, Your Honor.

[00:53:42] Speaker 04:
Well, we've seen the litigation of collateral consequences in Little v. Boremi that your friends are relying on over there.

[00:53:49] Speaker 04:
Yes.

[00:53:50] Speaker 04:
And before that, you had Bass v. Tingey, where the question came up as to whether the quasi-war was, in fact, a war.

[00:53:59] Speaker 04:
So the courts have become involved in the President's exercise of the war power.

[00:54:03] Speaker 08:
Sure, Judge Santel, and I think, you know, plaintiffs have also relied on the habeas litigation in Guantanamo Bay detainee cases.

[00:54:10] Speaker 08:
There's a lot of circumstances in which sort of collateral issues may address those questions.

[00:54:18] Speaker 04:
Yes.

[00:54:18] Speaker 04:
Both Barimi, Littleby Barimi and the Bath v. Kingi involved

[00:54:24] Speaker 04:
civil consequences in the little case of the damages claimed against Captain Little and in the size of the forfeiture and the salvage in Admiralty but it was ways in which the court did examine first that there was a war and second how far did it extend.

[00:54:46] Speaker 08:
And Judge Sintel, I think it's important, as you just pointed out, to recognize that those cases arose in admiralty, which is a specific authority that the federal courts have jurisdiction to consider.

[00:55:00] Speaker 08:
Here, the claim is that the courts should police the relationship between the political branches in an area where... Not necessarily.

[00:55:08] Speaker 07:
What limit does the AUMF place on the president, then?

[00:55:12] Speaker 08:
Any?

[00:55:12] Speaker 08:
Judge Griffith, I think it does place limits on the person.

[00:55:15] Speaker 07:
Yeah, because I remember in the Guantanamo cases, we had to struggle with the meaning of the AUMF and who was affiliated with it, who was associated with it.

[00:55:24] Speaker 07:
And so presumably, we were doing that because it meant something.

[00:55:27] Speaker 07:
It meant that we could find a category of people who were outside the AUMF.

[00:55:34] Speaker 07:
You'll grant us that, won't you?

[00:55:36] Speaker 08:
Absolutely, Judge Griffith.

[00:55:37] Speaker 08:
And that was the point I was making a moment ago in discussing.

[00:55:40] Speaker 07:
So then why not the argument that

[00:55:41] Speaker 07:
that what we have in front of us now is just another example of that.

[00:55:45] Speaker 07:
We have an entity that is beyond the scope of the AUMF.

[00:55:50] Speaker 07:
Why can't we look at that?

[00:55:52] Speaker 08:
Because the plaintiff matters, Judge Griffith, and that's what the standing doctrine tells us.

[00:55:56] Speaker 07:
If we got five plaintiffs, if I thought, you know, Alan controls here and I disagree with your

[00:56:02] Speaker 07:
you're reading it and I thought that there was standing and had to deal with that.

[00:56:06] Speaker 07:
How would you help me think about that?

[00:56:09] Speaker 07:
Why would that inquiry

[00:56:12] Speaker 07:
looking at the language of the AUMF and deciding whether ISO fits within it.

[00:56:17] Speaker 07:
Why would that be any different than the inquiry we undertook in some of the Guantanamo cases?

[00:56:23] Speaker 07:
Why would that be any different than what the Chief Justice told us we do in Zipotovsky?

[00:56:30] Speaker 08:
So turning first to the AUMF question, Judge Griffith, I think the difference would be that in the Guantanamo cases,

[00:56:39] Speaker 08:
The court was not being asked to determine whether the action was necessary and appropriate, for example, which is the language of the AUMF that would be at issue in this claim.

[00:56:48] Speaker 08:
Instead, in those cases, the question was about associated forces, for example, or the initiation of hostilities.

[00:56:54] Speaker 08:
That's not what the plaintiff here is asking the court to do.

[00:56:58] Speaker 08:
And the question of whether particular military operations are necessary and appropriate or whether they are necessary to protect the national security of the United States against a particular threat, those are the kinds of questions that are committed to the political branches by the Constitution.

[00:57:14] Speaker 07:
So maybe the answer is before and I didn't get it.

[00:57:16] Speaker 07:
So give me an example of where there would be a violation of the AUMF that we could enforce.

[00:57:24] Speaker 08:
Well, Judge Griffith, I think the Guantanamo cases that you were referring to are the kinds of cases where those questions can be litigated.

[00:57:32] Speaker 07:
The question isn't where there's been a... No, is there an example in which the president initiates hostilities that's beyond the scope of the AUMF and a plaintiff who's standing comes here and challenges it?

[00:57:48] Speaker 07:
Do we have authority to enforce the AUMF against

[00:57:52] Speaker 07:
against the president.

[00:57:53] Speaker 08:
I think not, probably.

[00:57:57] Speaker 08:
And I think there are multiple reasons, as we've discussed in our brief and today, why that's the case.

[00:58:03] Speaker 08:
Again, as Judge Sinto pointed out, there are lots of collateral windows into... What then was the purpose of the AUMF?

[00:58:10] Speaker 07:
Why go to Congress to...

[00:58:12] Speaker 07:
announced that there's a scope of war-making powers that we're going to engage in, and it's limited.

[00:58:18] Speaker 07:
But that can't be enforced.

[00:58:20] Speaker 08:
Oh, I think it can be enforced, Judge Griffith.

[00:58:22] Speaker 08:
But just not by us.

[00:58:23] Speaker 08:
But not in court.

[00:58:24] Speaker 08:
And I think that's the whole point.

[00:58:25] Speaker 06:
Well, that's what happened in the Cambodian bombing.

[00:58:28] Speaker 06:
Exactly.

[00:58:28] Speaker 06:
And the issues that you're discussing were the same issues that were discussed before the Supreme Court.

[00:58:34] Speaker 06:
And there was an Eagleton

[00:58:43] Speaker 06:
back and forth, and the Supreme Court dissolved the stay, and Congress passed a law that had, I think it was August 15th, 1973, that ended all funding for the Cambodian action, and the President complied with it.

[00:59:00] Speaker 06:
That's what you're saying.

[00:59:01] Speaker 06:
That's the way it should work.

[00:59:02] Speaker 08:
I think that's right, Judge Randolph.

[00:59:04] Speaker 08:
This is a political, ongoing political discussion and dialogue between the two elected branches.

[00:59:10] Speaker 08:
and that they have ample powers as between them to resolve these questions.

[00:59:16] Speaker 08:
Judge Griffith, your question whether there's any purpose to the AUMF, I think there is, but again, may not be a purpose that's subject to judicial resolution in a case like this.

[00:59:27] Speaker 04:
At the risk of extending what's already been extended lots of times, going back to the standing terms, normally in analyzing standing, we require that the alleged injury be remediable in the action.

[00:59:39] Speaker 04:
When I asked your friend there what kind of remedy we're issuing, he said, well, if you search the declaratory, now the president will probably comply with it.

[00:59:48] Speaker 04:
Is this even remediable in this court, in this action, where they're asking for a declaratory judgment if there is a violation of his, an injury rather, to the alleged, to the plaintiff?

[01:00:00] Speaker 04:
Can we remedy it in this action?

[01:00:02] Speaker 04:
I don't think that... If all we can do is issue the declaration.

[01:00:05] Speaker 08:
Judge Santel, I think you're right.

[01:00:06] Speaker 08:
The relief that the plaintiff here has requested would not change the legal relationship between the plaintiff and the controversy he's identified.

[01:00:14] Speaker 08:
And that's why we think this would be an advisory opinion.

[01:00:18] Speaker 04:
Okay.

[01:00:18] Speaker 08:
Thank you.

[01:00:18] Speaker 08:
Thank you, Your Honor.

[01:00:19] Speaker 08:
If the Court is new for the questions, we'd ask you to affirm.

[01:00:22] Speaker 08:
Thank you very much.

[01:00:30] Speaker 07:
I'm going to give you one minute on standing, Mr. Marine.

[01:00:34] Speaker 05:
I want to distinguish this case from Rady Amal, which is that in that case, the court ruled that Rady Amal, the State Department official, had not been ordered to do anything specific.

[01:00:49] Speaker 05:
In this case, Smith was ordered to do something specific, namely support intelligence for Operation Inherent Resolve.

[01:00:59] Speaker 05:
The second point, I want to clarify our point.

[01:01:04] Speaker 05:
I want to go to Judge Randolph's point about have we ever approved a declaratory judgment action against the President.

[01:01:15] Speaker 05:
And I think that it's implicit in this court's decision in Swan v. Clinton.

[01:01:20] Speaker 05:
that if there is no other way to achieve the result required by the law, a declaratory judgment can be issued against the president.

[01:01:35] Speaker 05:
We discussed that at the end.

[01:01:36] Speaker 05:
And finally, I'd like to clarify.

[01:01:38] Speaker 05:
What year was that?

[01:01:40] Speaker 05:
Swan?

[01:01:51] Speaker 05:
Okay.

[01:01:54] Speaker 05:
Pardon me while I check my table of authorities.

[01:02:12] Speaker 05:
It was recent.

[01:02:13] Speaker 05:
That's all I can say.

[01:02:14] Speaker 05:
It's recent.

[01:02:15] Speaker 05:
That's all I can say, Your Honor.

[01:02:17] Speaker 05:
I don't have the year of the citation.

[01:02:20] Speaker 06:
I'll just pull out my notes.

[01:02:21] Speaker 06:
You know, what I had in mind was our opinion in Newdow versus Roberts, which is, I don't think it's cited.

[01:02:30] Speaker 06:
It's 603.3 of 2002.

[01:02:31] Speaker 06:
That's 2010.

[01:02:32] Speaker 06:
And it says, with regard to the President's courts, do not have jurisdiction to enjoin him

[01:02:42] Speaker 06:
and have never submitted the President to the clerical relief.

[01:02:47] Speaker 06:
So you're saying that's wrong?

[01:02:49] Speaker 05:
It's never been, right?

[01:02:51] Speaker 05:
This decision, Swann B. Clinton, was decided in 1996, 100 F, 3rd, 973, but it's still binding authority on the panel, of course, because it hasn't been overruled.

[01:03:05] Speaker 05:
And the decision you cite is not contrary.

[01:03:08] Speaker 04:
What's your language from that Swan case?

[01:03:11] Speaker 04:
Well.

[01:03:13] Speaker 04:
In this morning, what you can conclude is what is the language in court you.

[01:03:22] Speaker 05:
The this court said that officials other than the president.

[01:03:30] Speaker 05:
quote, could on balance substantially redress Swan's injury by treating him as a de facto member of the board that he sought to continue to be on.

[01:03:44] Speaker 06:
And now there's some dip, right?

[01:03:46] Speaker 06:
Excuse me?

[01:03:48] Speaker 05:
No, go on.

[01:03:51] Speaker 05:
uh... and that if swan had been able to identify those officers.

[01:03:58] Speaker 04:
Are you quoting the court now?

[01:04:00] Speaker 04:
Well, I have to lead into the quote.

[01:04:04] Speaker 04:
No, you have to give me the quote.

[01:04:06] Speaker 04:
Okay.

[01:04:08] Speaker 05:
We're in charge here and that's what I have to do.

[01:04:13] Speaker 05:
If the court considered it, quote, indisputable that Swan would have named those subordinate officials had he thought that the suit against the subordinate officials would not be sufficient to provide the relief he desires.

[01:04:30] Speaker 05:
So the point is that it doesn't matter whether or not, or I should say, the significance of the case is that if a declaratory judgment directed at the president is the only way.

[01:04:43] Speaker 05:
What did we finally hold in that case?

[01:04:45] Speaker 05:
What you held is that the subordinate officers could

[01:04:52] Speaker 05:
de facto provides one with the relief that he sought, even though, that is, he could substantially give him the relief he sought.

[01:05:03] Speaker 04:
Anything about being impossible to enjoy in the prison is dipped in red.

[01:05:08] Speaker 05:
There was no injunction action here.

[01:05:10] Speaker 04:
There is no injunction action here.

[01:05:12] Speaker 04:
Anything about declaratory judgment against prisoners is also dipped in red.

[01:05:16] Speaker 05:
i'm sorry you're on anything about the current or relief against president dick not only uh... well seems to me that it is a whole thing that the court was saying it's important officers and substantially released by the release not they should be the ones

[01:05:34] Speaker 05:
but they can provide the relief and the suit does not need to be brought against the president.

[01:05:41] Speaker 04:
I think that's the... And therefore, it did not need to be decided whether there could be a declaratory relief against the president, right?

[01:05:47] Speaker 04:
That's what we call dictated.

[01:05:50] Speaker 05:
Well, I suppose it was the court's way of saying... Yes, okay.

[01:05:53] Speaker 05:
I think it was not dictated to say that if you can't... Right.

[01:05:57] Speaker 05:
Great.

[01:05:57] Speaker 05:
Thank you very much.

[01:05:58] Speaker 05:
We owe you our pleasure.

[01:05:59] Speaker 05:
Thank you.

[01:06:00] Speaker 07:
Professor Ackerman, we're going to leave you back one minute to talk about

[01:06:04] Speaker 03:
As the government's made clear, if the court fails to act in this case, it will have established a precedent that permits future presidents of the United States, on their mere assertion, without an opinion by the Office of Legal Counsel or the White House counsel,

[01:06:32] Speaker 03:
to assert that one or another terrorist group without any provision of evidence to anybody is an object of war forever.

[01:06:53] Speaker 03:
And this is a fundamental case.

[01:06:58] Speaker 03:
And in the face of

[01:07:02] Speaker 03:
a self-conscious refusal in 2001, a rejection of President Bush's initial request to – for authority to preempt future attacks, and in the face of a self-conscious decision in 2012,

[01:07:23] Speaker 03:
to deny, refuse to expand the authority of war making while expanding the authority for detention.

[01:07:33] Speaker 03:
Thank you.

[01:07:34] Speaker 07:
Thank you very much.

[01:07:35] Speaker 07:
I appreciate it very much.

[01:07:36] Speaker 07:
Thank you, counsel.

[01:07:37] Speaker 07:
The case is submitted.