Syria Insta-Symposium: Geoff Corn–The President, Congress, Syria: What If?

[Geoffrey Corn is the Presidential Research Professor of Law at South Texas College of Law in Houston. His prior articles addressing war powers include: 1, 2, 3.]

It seems almost abundantly clear that President Obama has resolved the question of “what if” the United Nations Security Council is unwilling to authorize military action against Syria for use of chemical weapons. The U.S. will act without such authorization, unilaterally if necessary. Why? Well, we know there are numerous overt and sub rosa motives being discussed, but ultimately because of a U.S. conclusion that the UNSC has proven ineffective. To bolster the credibility of this assertion, which is obviously dubious to certain other permanent members of the Security Council and countless other states, international law experts, and observers, the President has asked Congress to endorse his planned punitive strike with express statutory authorization.

Many have hailed this decision to submit the matter to Congress as a positive manifestation of the President’s respect for the Constitution’s allocation of war powers. But in reality, while Congress may be developing what it views as an authorization to use military force, this is not exactly how the President views their effort. Instead, he, like predecessors who have also sought express statutory authority for military actions, views it much more as support for the use of military force. Just as President George H.W. Bush emphasized when he, in 1991, requested congressional authorization to use military force to implement UNSC Resolution 678 and oust Iraqi forces from Kuwait, President Obama insists that while he wants this authorization, he does not need it. Of course, President Obama assertions of ‘desire’ versus ‘necessity’ follow the pattern of all modern presidents. However, by seeking authorization, the President does seem to be assuming a greater degree of risk than had he acted on his own asserted Article II authority. Thus, ironically, while the request for authorization will enhance strategic and constitutional legitimacy should Congress support the President, the risks associated with a down vote invokes the parable that, “it is easier to seek forgiveness than ask for permission.”

So, “what if” a majority of at least one house votes against his request, preventing enactment of an AUMF?  Does the President then have unilateral authority to launch the strike? He apparently thinks the answer yes, but this is dubious. Of course, in the realm of constitutional war powers there is a vast delta between “can” and “may.” Can he order the strike if Congress refuses to grant statutory authorization? Of course the answer is yes. However, doing so following a congressional vote that denies the requested authorization will substantially weaken his claim of constitutional authority, and substantially increase the risk that this claim will be checked by judicial intervention. Thus, it is clear that the risk that his assertion of power might be checked in such a situation is exponentially greater than if he has simply acted without seeking such support – which may explain why his predecessor President Clinton adopted an alternate course of action when he ordered U.S. participation in the NATO attack against Serbia.

Based on the President’s assertion that he is vested with authority to initiate an attack on Syria without congressional authorization, he might have initiated the attack based on this asserted inherent Article II power, without seeking authorization and with Congress never voting on a proposed AUMF. Had he done so, he would have been on relatively solid constitutional turf. Invoking Justice Jackson’s seminal Youngstown methodology for assessing the legality of exercises of executive power in relation to national security objectives, the absence of express congressional opposition following his overt assertion of inherent power and intent to initiate the attack would indicate congressional acquiescence at worst. The availability of existing funding for the operation would bolster his position, and if, as in the case of the air war against Serbia, Congress were to authorize supplemental funding, it would indicate implied congressional support.

It is also important to bear in mind that initiating action without first seeking and in the absence of an up or down congressional vote on an authorization to do so would also provide a high degree of confidence that any judicial challenge by congressional opponents would fail to clear the legislative standing hurdle. With no vote to argue their role was “completely nullified” by the President’s action, such plaintiffs would be unable to satisfy the requirements of Raines v. Byrd. And, as Judge Green suggested in Dellums v. Bush, the failure to take an affirmative stand against the operation would undermine any assertion of a “constitutional loggerhead” between the two political branches, an ostensible predicate for establishing a ripe dispute.

Opponents of unilateral presidential action could, of course, invoke the War Powers Resolution. According to this law, a President may order forces into hostilities only pursuant to a declaration of war, express statutory authorization, or an attack on the United States or its armed forces. The absence of express statutory authorization coupled with the undeniable fact that the action was not in response to an attack on the United States or its armed forces would therefore seem to prohibit presidential action even if Congress is silent. However, no President has ever accepted the constitutionality of this “exclusive list” of constitutional justifications for using force, and for good reason. The WPR essentially forbids presidents from relying on other evidence of congressional support for war making initiatives, such enactment of supplemental appropriations and implementing treaty obligations. It also dictates to Congress an exclusive method for manifesting support for hostilities (express authorization), a method that is inconsistent with both pre and post WPR congressional practice.

But even if this express authorization requirement of the WPR is constitutional in theory, in reality it is of little value to legislators who oppose a presidential war making initiative unless they can also muster sufficient support to enact a statutory prohibition for such action. This is because the doctrines of legislative standing and ripeness have in large measure nullified the efficacy of this provision. Enforcement to stop a presidential war making initiative would require affirmative congressional action prohibiting the operation. If Congress is able to muster the will to take such affirmative action, the WPR becomes functionally superfluous, because an express statutory prohibition against an operation would provide an independent basis for challenging the President. In short, the consequence of the standing and ripeness doctrines have almost completely nullified the “prohibition by silence” objective of the WPR (with the possible narrow exception of a service-member lawsuit against complying with a deployment order, which would ostensibly overcome any ripeness barrier, and rely on the WPR itself to provide standing).

Should Congress vote down the proposed AUMF, the President’s position would be tenuous. The consideration and rejection of authority to initiate hostilities would place the President in the position of acting contrary to the express will of Congress. In his recent statement made during a press conference in Stockholm, the President indicated his belief that Article II vests him with just such authority, noting, “As Commander-in-Chief, I always preserve the right and the responsibility to act on behalf of America’s national security. I do not believe that I was required to take this to Congress.” The breadth of this assertion is remarkable. Note that the President is not asserting an inherent Article II authority to act in the face of congressional silence, an authority he almost certainly possesses. Nor is he limiting this assertion of inherent authority to responding to an attack or imminent attack against the United States, its armed forces, or even its nationals abroad, any one of which falls much more firmly within the scope of presidential authority. Why not? Because he knows his asserted causus belli for attacking Syria falls outside the scope of national self-defense or the defense or rescue of U.S. nationals abroad. Instead, it is a broad protection of ‘national security’ interests that ostensibly triggers inherent Article II war initiation authority. This broad assertion of unilateral executive war making authority is unsupported by either historic practice or generally accepted interpretations of Article II powers. Indeed, if the President is vested with inherent authority to unilaterally decide when to initiate hostilities against another nation, even after Congress considers and rejects an authorization for such action, it would substantially nullify Congress’ war powers. As Judge Green noted in Dellums v. Bush,

“While the Constitution itself speaks only of the congressional power to declare war, it is silent on the issue of the effect of a congressional vote that war not be initiated. However, if the War Clause is to have its normal meaning, it excludes from the power to declare war all branches other than the Congress. It also follows that if the Congress decides that United States forces should not be employed in foreign hostilities, and if the Executive does not of its own volition abandon participation in such hostilities, action by the courts would appear to be the only available means to break the deadlock in favor of the constitutional provision.” [but the court is on the sidelines here for now; it’s the Constitution that matters, and the political branches have to figure out how to apply it in this setting]

Judge Green’s assertion that judicial action would appear to be the “only” means to break such a deadlock is certainly overbroad. Congress always retains the ability to cut off funding for an operation, or even impeach and remove the President. However, as each of these remedies require not a mere majority opposed to a war, but a super majority necessary to either override a presidential veto of any bill to cut off funding or to convict the President if impeached, it is obvious why legislators would resort to a judicial remedy in such a situation. It is also possible that existing funding designated for operations would be insufficient to sustain an ongoing operation, which would necessitate a supplemental funding bill enabling a simple majority of one house to prevent continuation of an operation. What Judge Green does seem to have right is that allowing a President to initiate a war unjustified as an act of national self-defense or defense of nationals contrary to the express will of Congress would essentially nullify the declaration power vested in Congress. Should this or any president prevail in such a challenge, it would be logical to alter the title of future AUMF’s to EUMF’s – Endorsement for the Use of Military Force.

Odds are that this type of constitutional impasse will not materialize in the coming days. Congress will almost certainly support the President and grant him the authority he seeks. They will view it as authority, he will view it as endorsement. But the “what if” raises vital questions about the limits of the President’s inherent war making powers when the national security interest at stake is not protection of the nation from attack or imminent threat of attack, but punishing a state for gross violations of international law. For the sake of our nation, our armed forces, and potential future victims of weapons of mass destruction I sincerely hope that such an impasse is avoided. If it is, however, defining the war powers balance between the two political branches of our government will remain as difficult tomorrow as it is today.