Our brief elaborates the legal arguments at length. For the larger public, it is more important to emphasize how this Department of Justice maneuver reveals the paradoxical character of Obama’s relationship to Donald Trump. Despite his isolationist tendencies on other issues, Trump has sent ISIS sent “a simple message … Their days are numbered. I won’t tell them where and I won’t tell them how. We must as, a nation, be more unpredictable. But they’re going to be gone. And soon.” If the Department’s legal gambit succeeds, it will be impossible for anybody to challenge President Trump when he cites Obama’s precedent in taking his battle in “unpredictable” directions.

This is unacceptable. If Trump wins in November, the courts should have precedents to work with that can offer a robust set of defenses against unilateral military adventures. Worse yet, Hillary Clinton herself—in contrast to her running-mate—cannot be relied upon to maintain the integrity of the War Powers Resolution. While she won’t be as erratic as Trump, it is only the serious prospect of judicial intervention that will contain her hawkish inclinations.

Obama should tell the Department of Justice to reverse its position in Smith’s case. Rather than trying to deprive him of a hearing, it should try to convince the court that the war against the Islamic State can be defended on the legal merits.

Even if the Department succeeds on the merits, it will only lead the court to uphold the legality of the present war against the Islamic State. This won’t stop future courts from reining in future presidents when they engage in even more egregious abuses of the War Powers Resolution. In contrast, if the Justice Department continues to block Smith and his future counterparts from the courtroom, Obama is inaugurating an era of unbridled war-making by the commander in chief, without any of the checks and balances contemplated by the American constitutional system.