Syria Insta-Symposium: Obama’s Constitutional Surrender?

by Peter Spiro

President Obama’s decision to seek authorization for military intervention in Syria is a watershed in the modern history of war powers. At no point in the last half century at least has a president requested advance congressional authorization for anything less than the full-scale use of force. Foreign Policy’s David Rothkopf gets it exactly right:

Whatever happens with regard to Syria, the larger consequence of the president’s action will resonate for years. The president has made it highly unlikely that at any time during the remainder of his term he will be able to initiate military action without seeking congressional approval. . . .

Obama has reversed decades of precedent regarding the nature of presidential war powers — and whether you prefer this change in the balance of power or not, as a matter of quantifiable fact he is transferring greater responsibility for U.S. foreign policy to a Congress that is more divided, more incapable of reasoned debate or action, and more dysfunctional than any in modern American history. . . .

Will future offensive actions require Congress to weigh in? How will Congress react if the president tries to pick and choose when this precedent should be applied? At best, the door is open to further acrimony. At worst, the paralysis of the U.S. Congress that has given us the current budget crisis and almost no meaningful recent legislation will soon be coming to a foreign policy decision near you.

The request makes all the difference. Just compare this episode to Kosovo, in which Congress tried and failed to get its act together to agree on an institutional position on the NATO bombing. But President Clinton had not requested authorization, and so there was no concession that congressional approval was needed. So he left himself free to ignore Congress’ failure to approve the action.

Obama will have no such out. (He claimed authority to go it alone in his statement today, but this is a context in which actions speak louder than words.) If Congress doesn’t authorize the use of force in Syria, his hands will be tied. The request shifts the default position.

In the past, presidents have been able unilaterally to initiate uses of force short of real war so long as Congress doesn’t formally disapprove. Institutional incentives have always pointed away from such disapproval. In fact there are only two partial examples of Congress limiting presidential uses of force in the modern era — Lebanon (Reagan) and Somalia (Clinton) — and that happened only after unilateral presidential actions had headed south. But of course those incentives also point against formally approving these sorts of lesser operations. Kosovo proved both sides of the coin, as measures both to approve and disapprove went down in defeat.

Over at Lawfare, Jack Goldsmith congratulates Obama for the move. Future presidents will not be so thankful, and maybe the rest of us shouldn’t be, either. Assuming a limited operation with no American casualties, Obama could have sweated the political heat just like he did during Libya. Through Democrat and Republican administrations presidents have for the most part used the power to initiate lesser uses of force in ways that served the national interest. American power would have been embarrassed by the requirement of congressional approval, which in many cases wouldn’t have been forthcoming.

The rest of the world can basically forget about the US going to military bat in these kinds of situations if congressional action is a precondition. This is a huge development with broad implications not just for separation of powers but for the global system generally.

http://opiniojuris.org/2013/08/31/syria-insta-symposium-obamas-constitutional-surrender/

11 Responses

  1. We know why Peter Spiro thinks he should not have to deal with an obstreperous congress in case he wants to go to war. What if Obama wants to attack Iran and congress won’t go along with it? Spiro is worried about Israel here, not American democracy or the constitutional separation of powers.

  2. Why do you object to Congress playing a role in these matters?

  3. As I understand it, Congressional approval is required following a 60 day time period of troop deployment (at lates). The Kosovo resolution was presented to authorize the use of military force (March 23, 1999), and it failed to pass. 
    Obama has stated, “The president does not have the power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” While it might be unusual to see a sitting president actually honor statements he has made to the public I can’t see why that would be a legally problematic, particularly when supported by the Constitution.

  4. “Just compare this episode to Kosovo, in which Congress tried and failed to get its act together to agree on an institutional position on the NATO bombing.”
     
    Or LIbya, where Congress did the same thing, voting down a position in favor of the bombing, but also voting down a resolution in favor of withdrawing troops.
    I’m sorry, I don’t see how this is a major surrender of authority. The President and his aides have indicated that they don’t think that this authorization is necessary– which is indistinguishable from George W. Bush’s position. With the exception of Kosovo and Libya, other Presidents have always gone to Congress– while knowing that they could win and saying that they didn’t really need to.

  5. Presidents have only gone to Congress for major uses of force. There are scores of limited uses of force, many in the modern era (eg, Grenada, Panama, Somalia) for which Presidents did not seek or secure congressional authorization. This is unprecedented in the modern era.

  6. Regardless of whether there is precedent, why do you object? Isn’t it a good idea for Congress to play a role in military actions?  If the precedent is a bad one, shouldn’t we overturn it?

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