Corker’s Revenge (The War Powers Resolution Lives!)

by Peter Spiro

The Senate has a draft resolution authorizing the use of force in Syria up for mark-up today, which you can find here. In its key operative provision, the resolution authorizes the use of force to 60 days only, subject to a 30-day extension upon a presidential certification of “extraordinary circumstances.” If Congress doesn’t extend the authorization, it is thereafter terminated.

SECTION 4. TERMINATION OF THE AUTHORIZATION FOR THE USE OF UNITED STATES ARMED FORCES.

The authorization in section 2(a) shall terminate 60 days after the date of the enactment of this joint resolution, except that the President may extend, for a single period of 30 days, such authorization if

(1) the President determines and certifies to Congress, not later than 5 days before thedate of termination of the initial authorization, that the extension is necessary to fulfill the purposes of this resolution as defined by Section 2(a) due to extraordinary circumstances and for ongoing and impending military operations against Syria under section 2(a); and

(2) Congress does not enact into law, before the extension of authorization, a joint resolution disapproving the extension of the authorization for the additional 30 day period . . .

Sound familiar? The resolution in effect smacks the War Powers Resolution framework onto the Syria action in a way that would be much more effective than the Resolution itself.

We all remember how President Obama evaded the WPR 60/90-day limitation on the non-authorized use of force with respect to the Libya operation. In that case, the Obama Administration made the somewhat implausible (on the face of it) claim that the Libya action did not qualify as “hostilities” for purposes of the WPR. That argument incensed many on the Hill, who thought they were being taken for fools. Bob Corker was particularly unhappy (check out his testy exchange with Harold Koh around time stamp 57:00 in the June 2011 SFRC hearing on Libya and war powers).

Looks like Corker is settling that score here. By applying the WPR timeline specifically to Syria, it almost certainly will stick. It is highly unlikely that Obama would in this case continue a Syria operation beyond the 60/90-day limit.

So the Administration in effect would finds itself bound by the WPR framework that it and all other prior Administrations have rejected. Doesn’t sound like a result that Obama should be happy about, a far cry from the open-ended broad authorization he requested over the weekend.

Jack Goldsmith disagrees. He highlights the “whereas” clause under which Congress would recognize that the President “has authority under the Constitution to use force in order to defend the national security interests of the United States.” I agree that this is a broad, possibly unprecedented articulation of presidential power. But Obama would still have a hard time putting that finding to work by way of extending the use of force beyond the 60/90-day window (the defiance of which would put the episode squarely in Jackson’s category 3, not category 1, as Jack argues).

And we’ll see whether the preambular recognition of broad presidential authority makes its way into the final bill in this form. Jack’s post itself makes that less likely (he is being widely read on legal developments relating to Syria), as Congress stands on guard not to cede constitutional turf. Obama has a glimmer of an argument for action beyond 60/90 days insofar as the resolution speaks of the authorization being terminated rather than requiring that the use of force be terminated (the latter being the WPR’s approach). But that argument would look as lawyerly as the Obama argument on Libya, in a context in which institutional sensitivities are even higher.

If the core of this draft is enacted, one could imagine it becoming a template for specific authorizations of limited uses of force in the future, including those beyond Syria-specific parameters. That would mark a historic shift in the balance of war powers, much more so than the War Powers Resolution itself ever did.

http://opiniojuris.org/2013/09/04/corkers-revenge-war-powers-resolution-lives/

9 Responses

  1. A quibble but an important one:  Peter, you write that “the Administration in effect would find itself bound by the WPR framework that it and all other prior Administrations have rejected.”
    To the contrary, the Obama Administration and almost all previous administrations have *not* “rejected” the WPR formulation.  That’s a myth.
     

  2. Marty, I’ll take the point. But when the rubber hits the road – Kosovo and Libya – presidents manage to find their way around it in ways that suggest constitutional ambivalence if not disrespect. They could get away with it in those contexts, given the WPR’s bad odor; Obama wouldn’t be able to do the same here if the SFRC resolution is enacted.

  3. Why would a President “reject” the WPR framework when it does not apply to the President’s authority to execute treaties of the United States (as in the case of a NATO authorization re: Kosovo, a S.C. authorization re: Libya, and self-defense or collective self-defense under UN art. 51)?  It expressly applies merely to the President’s authority as C-i-C and, therefore, under the U.S. Const., art. II, sec. 2.  It does not apply to the President’s authority under art. II, secs. 1 or 3.  See http://ssrn.com/abstract=2272291
    Congressional approval of a power to “defend national security interests of the United States” would be a remarkable delegation of power.

  4. sorry, re: const. and WPR, meant to refer to http://ssrn.com/abstract=2061835
    Pres. Obama made a shocking statement today that “Congress ratified” the 1925 Geneva Protocol.  Although the Chief Justice made the same shocking statement in Medellin, one has to be constitutionally ignorant to think that “Congress” ratifies a treaty.  The Senate does not “ratify” a treaty either, but merely provides advice and consent to possible ratification by the President, who may or may not agree to ratify a treaty after having obtained such consent.
    On another note: might the President veto any forthcoming authorization to use military force as a violation of the separation of powers?  Having asked Congress for approval, such might be as much a reversal as his initial statement that he did not need congressional approval, but he could do so.

  5. Jordan, interesting thought on the veto possibility. Smarter money would be on a signing statement.

Trackbacks and Pingbacks

  1. […] The White House draft of a measure granting President Barack Obama the authority to attack Syria, sent to Congress last week, was far too broad. Now some critics are saying that the Senate’s rewritten resolution, approved by the Foreign Relations Committee this week, is too narrow. […]

  2. […] The White House draft of a measure granting President Barack Obama the authority to attack Syria, sent to Congress last week, was far too broad. Now some critics are saying that the Senate’s rewritten resolution, approved by the Foreign Relations Committee this week, is too narrow. […]

  3. […] The White House draft of a measure granting President Barack Obama the authority to attack Syria, sent to Congress last week, was far too broad. Now some critics are saying that the Senate’s rewritten resolution, approved by the Foreign Relations Committee this week, is too narrow. […]

  4. […] The White House draft of a measure granting President Barack Obama the authority to attack Syria, sent to Congress last week, was far too broad. Now some critics are saying that the Senate’s rewritten resolution, approved by the Foreign Relations Committee this week, is too narrow. […]