September 2013

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?