As the Obama administration announced plans to step up its military campaign against ISIS this spring, a twenty-eight-year-old army officer, Captain Nathan Michael Smith, took President Barack Obama to court. He argued that the war against ISIS is illegal because Congress has not authorized it. Smith’s action highlights persistent problems with the legal basis for the military campaign, and has generated interest and support from leading legal scholars. And so President Obama, a law professor turned president who pledged to bring in the rule of law to restrain presidents’ use of force, finds himself the target of a lawsuit arguing that his own military initiative is unlawful. ...

Over time, this trilogy—no military draft, reliance on contractors, and high-tech warfare—has insulated the American public from the cost and the consequences of war. Without a personal stake, Americans pay little attention to their country’s ongoing wars. Presidents no longer need to wait for an attack on Americans to galvanize public support for armed conflict. There is simply no need to mobilize the citizenry.

This helps to explain the circumstances that led to Captain Smith’s lawsuit. President Obama has been relying on strained interpretations of preexisting Authorizations for the Use of Military Force, and his own presidential power as commander in chief, for authority to conduct ongoing military action in the Middle East. He asked Congress to pass a new authorization for war against ISIS. Congress appears to support this military campaign, but has not exercised its power to authorize it. The lack of an authorization does not limit Obama’s deployment of military force, however. Instead it provides a justification for the expansion of the president’s power to act on his own.

There has been much attention given to the way government secrecy about the use of force and surveillance under the Bush and Obama administrations enables unchecked presidential power. But an important cause of the absence of accountability is deep in the structure of American war politics. The direct exposure of most Americans to this war is limited to news sources and social media, when they choose to pay attention at all. With little personal stake, they make no demands of their elected officials. The inattention of voters means that members of Congress have few incentives to prioritize it. Without Congressional action, war power devolves to the president. This has resulted in ongoing war with no end in sight.

The fracturing of American war politics has been many years in the making, and there is no easy fix. Smith’s lawsuit is unlikely to get Congress to act, and most certainly won’t result in troop withdrawals. When it comes to limiting presidential power, there has simply never been a substitute for political movements against war.