Anyone Else Wistful for the Good Old Days, in Which Presidents Went It Alone?

by Peter Spiro

You never know, President Obama might turn things around. On the other hand, things sound bad on the Hill. The Administration would have to run the table to get a yes-vote from both houses of Congress (it’s uphill even in the Senate). It may not be too early to start writing the post-mortems.

The key mistake Obama made was going to Congress for approval. The disaster that has followed shows why presidents have (or now, perhaps, “used to have”) the power unilaterally to initiate limited uses of force.

If Obama had last Saturday gone ahead and announced that a limited strike was underway against select chemical-weapons sites in Syria — the sort of announcement everyone in the Administration thought he was going to make –, and that it would be over in 48 hours, he would have accomplished everything that he’s still looking to accomplish.

Yes, there would have been political backlash — there would have been, just as there has always been, Monday-morning quarterbacking on limited uses of force. But presidents always weathered that kind of backlash. Op-eds are written, a Dennis Kucinich lawsuit is dismissed (who will play his role in future episodes?), calls are made for reining in the imperial presidency. Then everything subsides back to the constitutional mean, in which Presidents are expected to make these decisions without putting them through the hall of mirrors that is Congress. (Real wars are different — the stakes are high but the objectives tend to be clearer, much clearer, in a way that focuses the legislative mind and incentivizes approval.)

Where we are in fact: if Obama loses the vote that he requested he will have two very bad options.

If he then goes it alone, there will be a domestic firestorm, framed not just in political but constitutional terms. At the very least I think we would see the House formally condemn the action (something not witnessed in the war powers context since the House censured President Polk in 1848 over his provocation of the Mexican-American War). As Sandy Levinson suggests, there would also “certainly be (reasonable) calls for impeachment.”

If, on the other hand, Obama backs down in the face of a legislative defeat, he’ll look fatally weak, something on which almost everyone seems to agree. He would that he still had the constitutional authority to conduct the operation notwithstanding the absence of authorization, and that the backing down was at his discretion. But in this context, actions speak louder than words. Asking for the authorization effected a constitutional giveaway; there’s no chance of a constitutional clawback, at least not for now.

This is of course not to say that a Syria strike on unilateral presidential authority would have solved the Syria situation. But it would have left the US in a far better position internationally than we’re likely to find ourselves a couple of weeks from now.

http://opiniojuris.org/2013/09/08/anyone-else-wistful-good-old-days-presidents-went-alone/

5 Responses

  1. Well,“The key mistake Obama made was going to Congress for approval.”   Isn’t he supposed to lead a democracy?   Isn’t that what they do? 

  2. 1) There is no such thing as a “limited use of force”. As Bob Schieffer says in “Face the Nation” on CBS (in the last minute of video http://www.cbsnews.com/video/watch/?id=50154603n ) : “If the Chinese parked a submarine off Manhattan Island and dumped a couple of cruise missiles into there, I think we would consider that an act of war”.

    2) Going to Congress is not a mistake. Barack Obama, a former constitutional law professor, is simply being true to his word : “As candidate Obama recognized in 2007, the president needs congressional authorization for a military attack that is not related to an actual or imminent threat to the United States” : http://www.latimes.com/opinion/commentary/la-oe-edelson-obama-syria-military-action-20130830,0,2055546.story .

  3. I miss the good old day when legal scholars where naive and idealistic:
    “[T]he historian of the future will look back with wonder and amazement to the time when nations did not settle their justiciable disputes by judicial process, and did not organize permanent courts for their trial and disposition.”, J.B. Scott, The proposed court of arbitral justice; letter of James Brown Scott to the Netherland Minister of Foreign Affairs, dated January 12, 1914, p.45.
     
    So why does the ICJ not have mandatory jurisdiction for use of force yet? Why should the attacked not be able to sue the attacker?
     
     

  4. “Anyone Else Wistful for the Good Old Days, in Which Presidents Went It Alone?”
    Hmm, that’s a tough one. Maybe Bill Kristol?

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