Author Archive for
Peter Spiro

More on Boehner’s Netanyahu Invite (and What It Says About Constitutional Change)

by Peter Spiro

My earlier post on whether John Boehner’s invitation to Benjamin Netanyahu seems to have triggered a little in-house conservative disagreement on the issue (or at least Weekly Standard’s Adam J. White is giving me credit for that). Mike Ramsey and David Bernstein come out against the invite’s constitutionality here and here; White argues in favor.

As I left off my first post, the question is appropriately raised but I think ultimately the Boehner move will go down as policy stupid but constitutionally legitimate. Appropriately raised because the invitation seems so patently at odds with a “one voice”/”sole organ” approach to foreign relations. Nice to have Mike Ramsey to confirm that the Founding generation wouldn’t have bought in (though Ryan Scoville dissents on the historical record here). But it would have provoked a huge controversy in the 20th century as well — see the much more informal interaction between Jim Wright and the Sandinistas during the Reagan years. Imagine if Wright had invited Sandinista leader Daniel Ortega to address Congress. I think a lot of folks would have deployed constitutional objections to that.

But just because it may have been unconstitutional then doesn’t mean it’s unconstitutional now.

The fact that it was left to a niche blogger to raise the constitutional question this time around pretty much proves the fact that this is now water under the constitutional bridge. There’s no way to put the lid on direct communication between members of Congress and foreign government officials. So much for “one voice.” One has to assume such communications are now dense. Making the jump from lots of behind-the-scenes contact to more formal actions like the Boehner invitation looks small. One might even argue that it is transparency enhancing. Better to play the institutional cards openly than hide them under the table. (Adam White highlights similar activity on the part of the courts, including the increasing amicus practice of foreign states. That practice would have raised a lot of eyebrows as recently as a couple of decades ago, especially on domestic issues; it’s now pretty routine.)

So the episode is a nice illustration of how changes in context can change constitutional understandings. Assuming the constitutional debate on the Boehner move remains restricted to a side conversation among constitutional scholars, it will supply a good precedent for similar moves on Congress’ part in the future. The practice then becomes constitutionally entrenched, accepted by all relevant actors. Any earlier understandings (including ones dating back to the founding) are overtaken by events. Th Constitution necessarily adapts to the world in which it has to operate.

Is Boehner’s Netanyahu Invite Unconstitutional?

by Peter Spiro

John Boehner has invited Bibi Netanyahu to address Congress. There’s a modern tradition of foreign leaders appearing before the legislature (list here). I’m willing to bet that every single one of those appearances was pre-cleared with the State Department or White House in advance.

I’m no student of Middle East politics, but it’s seems pretty clear that the the White House and the congressional GOP leadership are at loggerheads on US policy here and that the Boehner invitation is meant to advance the GOP (and Israeli) position on Iran. In the past, when members of Congress have gone freelance on foreign policy there’s been a tradition of waving around of the Logan Act, which provides:

Private correspondence with foreign governments.

Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both.

It happened most prominently when Jim Wright played footsie with Nicaragua’s Sandinista regime in the 1980s. It was suggested as a problem as recently as 2007 when Nancy Pelosi visited Syria against Bush Administration wishes. As conservative commentator Bob Turner argued in a Wall Street Journal op-ed (“Illegal Diplomacy“):

consider this statement by Albert Gallatin, the future Secretary of the Treasury under President Thomas Jefferson, who was wary of centralized government: “it would be extremely improper for a member of this House to enter into any correspondence with the French Republic . . . As we are not at war with France, an offence of this kind would not be high treason, yet it would be as criminal an act, as if we were at war . . . .” Indeed, the offense is greater when the usurpation of the president’s constitutional authority is done by a member of the legislature — all the more so by a Speaker of the House — because it violates not just statutory law but constitutes a usurpation of the powers of a separate branch and a breach of the oath of office Ms. Pelosi took to support the Constitution.

No intent here to compare Netanyahu and Assad, but the logic of presidential control applies in both cases. (This isn’t about actual prosecution under the Logan Act. No one is ever actually prosecuted under the measure; it’s more a focal point for highlighting structural aspects of foreign relations.) In both cases, presidential powers are “embarrassed” in the terms of Curtiss-Wright. Will the Wall Street Journal take Boehner to task for his move? Somehow I doubt it. (For that matter how could constitutional originalists square this with the Framers’ intent? No head of a foreign state appears to have addressed Congress prior to 1919.)

The White House has called the Boehner move a breach of protocol. If this were happening beyond the political anomalies of the Middle East, I wonder if it might be using some stronger language. In any case the episode will set a precedent for congressional bypass of executive branch foreign policy in interacting, fairly formally, with foreign government leaders. (Will the Speaker host something like a state dinner for Bibi?)

Mind you, I’m not sure it’s a bad precedent (again, leaving aside policy particulars of the ME situation). It’s a fact of life that governmental components are now semi-autonomous foreign policy players in a way that would have been unimaginable in the 18th century. The constitutional custom, norms, “protocols” — whatever you want to call them — are catching up to those realities. Presidents will just have to learn to deal with the new tools of foreign policy dissent.

UPDATE: More thoughts from me on this here. On the originalism point, don’t take it from me, take it from Mike Ramsey, easily the leading expert on originalism in the context of foreign affairs. The VC’s David Bernstein, a consistent Israel/Netanyahu/GOP backer, is also on board in thinking there is a constitutional problem.

International Law Ten Years Later — On the Ground and In the Academy

by Peter Spiro

You know you’ve reached a certain age when you start saying, “I remember when. . .”

Well, I remember when international law was considered a legal chimera and an academic backwater. Policymakers would take it into account in only a limited set of circumstances, and then usually only where it was consistent with other agendas. In law schools it was ghettoized: schools understood they needed one member of the faculty to cover international law courses, but at many it was only one. Among the international relations theorists, international law was the target of ridicule (“epiphenomenal,” delivered with a heavy dollop of condescension).

Things had begun to change around the time that I joined the blog in 2006. One sign of change was a new wave of entry-level international law faculty, among whom Chris, Peggy, and Julian prominently counted. International law felt like the academic equivalent of a start-up, and Opinio Juris was there, helping to build the community of international law academics (something reflected in our impressive list of alumni guest contributors). There was a time when it was required reading among IL scholars. The blog helped demonstrate international law’s relevance on a day-in, day-out basis.

In those early years, I felt like blogging here was part of that cause – to prove the reality of international law against a stolid cohort of non-believers, both in and outside of the academy. It wasn’t advocacy in the traditional sense; international law doesn’t always point to progressive (or otherwise “correct”) results. (In any case, one of OJ’s virtues is its ideological diversity.) More in the way of advocacy for the discipline, at a point at which its respectability was still contested.

Today, there’s no longer any real need to engage in that kind of promotional activity. I don’t feel like I have to do the sort of cheerleading that I engaged in my early years here. International law has left its Ice Age behind. It is now arguably the center of the action, both on the ground and in the academy, as it comes to touch every area of law. It is in its take-off phase. Foundations are being built that will have consequences for generations to come. There’s still a tremendous level of instability. Some institutions now in their infancy will crash and burn. But others will survive. Things happening today will be studied by future generations, even if they aren’t necessarily very high-profile in the contemporary imagination. Some institution-builders anonymously at work today will be celebrated only long after they are dead.

The accelerated growth isn’t all upside, even leaving aside the inevitable missteps and false starts that are part of any take-off. In the “be careful what you wish for” department, international law has grown to the point where it’s no longer a unified field. It’s a lot of fields that are starting to go their own way. The number of international law generalists is dwindling; it’s impossible to keep up with developments in fields as diverse as those in domestic law. The level of specialization now makes it tough to talk across specialties. It’s like your first cousins — you have a recent common ancestor and probably spent some time together in your youth, but may more recently have drifted apart. The next generation will likely as not be strangers.

That’s presents a challenge for a blog that remains generalist in orientation. There are times when the debates in the weeds aren’t worth following if it’s not your particular area. Appealing to the larger community gets more difficult.

I’m also old enough to remember when blogging was new (not so old!). As Julian points out, it has changed – much more serious now, less of the breezy sort of pointers and back-and-forth chatter, much of which has moved to Twitter (which itself has started to get more serious). The emergence of other international law-oriented blogs (Just Security and Lawfare in particular) is a testament to that seriousness, as well as another data point evidencing the robust state of the field. In any case it’s been fun to be a part of a project that has seen these things through.

Obama’s Immigration Action: (Probably) Constitutional

by Peter Spiro

I was quoted in the NY Times on Friday on Obama’s executive action on immigration to the effect that it is unprecedented in scale and formality. I’ll stick to that position, but that doesn’t mean that I think that the executive action is unconstitutional. Just a few thoughts to clear that up (especially since David Brooks used the quote on NPR to support his position against the action).

The action may be unprecedented, but not in a discontinuous way. The media is full of discussions of prior “deferred action” programs, most of them involving global hot spots. Immigration enforcement has always been severely underfunded, which has demanded systematic identification of enforcement priorities. Once a matter of internal administrative guidance, since John Lennon forced transparency in the early 1970s these priorities have been a matter of public record.

But there’s never been anything like this in terms of numbers. More important, no president has undertaken this kind of program in the face of this kind of opposition. No other president appears to have used executive action to break a legislative logjam.

Consider the “Family Fairness” program undertaken by the George H.W. Bush administration in February 1990 to protect spouses and children of those whose status was regularized under the landmark 1986 legislation, a precedent that got a lot of play last week. The action affected a large number (as many as 1.5 million). It also involved work authorization. But the action appears to have been utterly uncontroversial. The action was announced by the commissioner of the INS, not the White House. The NY Times item reporting the action (published on page 28) did not so much as mention George Bush much less any opposition to the move. Subsequent legislative validation was hardly reported at all (it was part of a package that increased annual legal immigration quotas). In short, the Bush administration move was uncontested. (UPDATE: The Washington Post debunks the 1.5 million figure here. It was probably under 100,000, which helps explain the absence of controversy.)

That makes it a pretty weak precedent. The Obama action, to say the least, is being vigorously contested. It doesn’t mean Obama’s action is unconstitutional. It means that the Obama action is provisional. It could be overcome.

The courts will stay away. It’s not clear who would have standing to challenge the action. Even if a court got to the merits, there is recent precedent (the 2012 decision in Arizona v. United States) clearly inscribing the president’s prosecutorial discretion over immigration enforcement.

Congress will have to carry its own water in overcoming the Obama move, with assists from other elites and the public at large. I’m not sure what it would take beyond an improbable defunding. We may see non-binding “sense of” resolutions decrying the action in constitutional terms. Those would count for something as formal institutional pronouncements.

The ultimate test may be whether Congress eventually comes on board and fully regularizes the status of beneficiaries of the executive action. No Republican president is going to reverse the action and start deporting these sympathetic people. But that doesn’t mean Congress will adopt Obama’s action as a matter of law. Listen for those (like David Brooks) who favor real immigration reform but oppose the Obama move. That’s the control group on the constitutional issue.

Meanwhile, immigrants covered by the executive action are definitely better off for it. But their status will still be second-class. The government will discriminate against them on benefits like health care, and of course they won’t have the vote. Their ultimate status may depend on whether Obama’s constitutional gambit is a successful one, and everybody falls into line with it.

Kuwait Bulk-Orders Comoros Citizenship for Stateless Bidoon

by Peter Spiro

Citizenship for sale schemes have become an increasingly common phenomenon as the rich from non-Western states look to upgrade their travel privileges. The likes of Malta, Cyprus, and St. Kitts have had some success selling citizenship to plutocrats from Russia, China and other non-visa waiver countries. The revenues supply a nice fiscal bump at low marginal cost to these small states. The price is fairly steep (more than a million Euros in the case of Schengen-advantaged Malta) but the number of buyers has been relatively small.

That’s cash-for-passports on a retail basis. We now have reports of the first wholesale purchase. Kuwait has long been criticized for its refusal to extend Kuwaiti citizenship to native-born tribal Bidoon, who as a result have been left stateless. (See this report from Human Rights Watch, for example.) Kuwait continues to deny the Bidoon Kuwaiti citizenship. But it is now moving to procure them citizenship in the Comoros. Kuwait purports to solve the statelessness problem. The Comoros (not a rich country) gets a couple of hundred million dollars for the favor.

Full report here from Atossa Abrahamian in Aljazeera America. Those Bidoon who accept Comoros citizenship will no longer be stateless, which will better their lot in place in Kuwait for things like health care. But human rights groups aren’t buying. The Comoros scheme will continue to deny the Bidoon access to citizenship in their place of habitual residence. That’s problematic as a matter of international human rights, which is beginning to assimilate an “access to citizenship” norm beyond the long-established regime against statelessness.

The transaction itself is probably consistent with international law. States have near-complete discretion with respect to the extension of citizenship. If the Comoros wants to sell nationality on a bulk basis to a group of people that have no ties to the Comoros, that’s its business, at least to the extent that the Comoros doesn’t try to assert the nominal nationality against other states (which would bring the ICJ’s Nottebohm threshold of “genuine links” into play). That’s highly unlikely, since the Comoros won’t have much interest in expending diplomatic resources on behalf of citizens with whom it has no organic social connection.

So the deal is likely to stick. It might even serve as a template for other states that host large stateless populations. Hard to argue that this doesn’t supply further evidence of citizenship’s degradation, but there’s not much to do about it.

 

Zivotofsky and the Disaggregated State

by Peter Spiro

Transcript of today’s argument here. Scalia, Roberts, and Alito are siding with petitioner (and Congress), Kagan and Sotomoyor are with the Government. Breyer, Ginsburg, and Kennedy didn’t tip their hands clearly one way or the other.

A lot of speech-related framings. Zivotofsky’s lawyer argued that allowing “Israel” as a choice for those born in Jerusalem is a matter of self-identification. Kagan had the best one-liner of the day in response, noting that it is “a very selective vanity plate law” insofar as it doesn’t give Palestinians the same choice. On the other side there was some characterization of the law as imposing “compelled speech” on the Government. Justice Kennedy took care of that with prospective disclaimers that the executive branch could issue, even on the passport itself.

Along those lines, there was this interesting response from Justice Alito to SG Verrelli’s assertion that the statute poses a “very serious risk” of harming US credibility on the sensitive issue of Jerusalem’s status:

Justice Alito: Why would that be so? No matter how this Court decides, everyone will know what the position of the President is. Everyone will know what Congress thought when they passed this legislation. Whatever we do, that’s not going to be changed, and our decision isn’t going to be based on any view that we may have about whether Jerusalem should be regarded as part of Israel or the capital of Israel.

So why will there be any effect on foreign policy except by people who will misunderstand the situation, either ­­ — either because they really don’t understand it or they will exploit it in some way?

He has a point. One might add that everyone will know that Congress has no idea what it’s doing on foreign policy or anything else, and that “everyone” includes most of the world. Certainly sophisticated foreign government elites — they know that on everything from climate change to the International Criminal Court to human rights, Congress is way, way behind the curve.

That would take care of many contexts but perhaps not this one. There will be some people out there (not sophisticated government elites) who could take the passport policy the wrong way, not knowing that Congress is out to lunch and that US policy has not changed. That’s where the risk comes in. It’s what makes this case less than ideal for adapting the Constitution to the new global dynamic. The Middle East is a throwback to the old world. Arguments like Noah Feldman’s here still make a lot of sense when it comes to Israel-Palestine, even if they don’t make so much sense anywhere else.

But the risk may be small enough that the Court is willing to take it. As Wells Bennett notes, some of the Justices seemed not really to believe the Government’s predictions of dire foreign policy consequences. (On this score it may help them that there doesn’t seem to be a whole lot of back-up evidence.) If the Court rebuffs the executive branch and all hell doesn’t break loose when Zivotofsky and others get their passports, it will undermine all such claims in future cases, and we can expect the Government to get a dwindling bump from the increasingly putative foreign relations power.

Three Reasons Why Jerusalem Passport Statute Survives Zivotofsky

by Peter Spiro

Everyone is ramping up for Monday’s Supreme Court argument in Zivotofsky v. Kerry, with notable entries from Jack Goldsmith on Lawfare, Marty Lederman on Just Security, and Eugene Kontorovich on Volokh. They have been debating a narrow doctrinal basis (suggested by the SG and pressed by Jack) for striking down the law as a kind of passport regulation beyond Congress’ power under Article I.

A little more on that below, but in the meantime, here are three atmospheric factors that point to sustaining the statute, none of which will be mentioned in the decision.

1. Passports would say “Israel,” not “Jerusalem, Israel”. Along the way, Zivotofsky modified his demand from the latter to the former. If he wins, his passport will list his place of birth simply as “Israel”. This makes a huge difference in the optics, literally. There are already an estimated 100,000 US passports that list “Israel” as place of birth; upholding the passport measure will only increase the number. None will say “Jerusalem, Israel.”

The visual out on the web of the passport with the Stars and Stripes and other official US Government ornamentation as background on the personal information page would have easily been mistranslated as US Government recognition of Israeli sovereignty. Without the graphic, there’s too much explaining to do — you have to connect the document with a person (and that person’s birth information) to cause the offense. The attenuation should mitigate the risk of damage on the ground.

2. The government lacks the amicus support one has come to expect in a case like this. Where is the brief from former U.S. diplomats? In Medellin, Madeleine Albright et al. argued that the failure to find the VCCR self-executing would do serious damage to US foreign relations. There’s no equivalent in Zivotofsky, in circumstances in which the risk of damage would seem an order of magnitude higher (in the end, US-Mexico relations survived Medellin’s execution, and there have been no reported cases of other countries violating US citizen rights under the VCCR). The silence from other quarters might make the justices feel a little more confident that upholding the statute is not going to spark riots in the Arab world.

The government garnered only three amici in support. Perhaps everyone is scared away from taking a stance that looks anti-Israel. The American-Arab Anti-Discrimination League makes a non-delegation argument (as in, the statute unconstitutionally delegates decisionmaking to private individuals, namely, those who choose “Israel” over “Jerusalem”). The “True Torah Jews” argue that Zivotofsky lacks standing. And one David Boyle makes a grab-bag of arguments, including a Logan Act claim. Can anyone with a bar admission file green briefs these days? On the petitioner’s side, check out Louis Fisher’s anti-Curtiss-Wright diatribe (okay, did the Government have to cite Curtiss-Wright more than a dozen times in its brief?).

3. Why would the Court have taken the case, except to reverse? If the Court were inclined to strike the statute down, letting the D.C. Circuit’s creditable ruling stand would have accomplished that objective in a low-profile, low-cost way.

The doctrinal math for sustaining the statute is straightforward. The Secretary’s action is readily framed as Youngstown category 3 (much more so than the presidential memo in Medellin). From there, it’s a simple matter of finding Congress to have authority over the issuance of passports.

Assuming it doesn’t ignite the Arab Street, the decision won’t be of immediate consequence. Recognition decisions are much less important than they once were, and the probability of serious splits between Congress and the White House slighter still (hence the relative paucity of recent historical precedent for the issue). Ditto for passport authority parameters. This just isn’t something that gets fought over very often. Because the result looks unthreatening in these ways, I don’t see the Court going through Article I gymnastics to carve out this particular aspect of passport issuance from what is otherwise clearly within congressional authority (that is, some general authority over the issuance of passports under the foreign commerce and naturalization clauses). The Article I argument sounds more like a hairsplitty Breyer dissent than a broadly reasoned Roberts majority.

Upholding the statute would fit nicely into the Court’s project of normalizing foreign relations law. Zivotofsky I was a key step in that agenda, playing the Marbury card against the conventionally deployed political question doctrine in this kind of foreign relations dispute. Medellin was another. Upholding the statute would be normalizing. Exclusive presidential powers are exceptional; they seem less amenable to judicial supervision, especially when they are located in an amorphous and historically uncabined foreign relations power.

Update: Eugene Kontorovich notes here that there aren’t any amicus briefs from foreign governments, either. One wouldn’t think that unusual, but (as Eugene points out) such foreign government amicus participation has become pretty routine. (One other case in which foreign governments went missing: last year’s treaty power case, Bond v. United States.) Eugene is right to remind us that we shouldn’t read too much into amicus non-participation. But the silence might make the Court more confident in rebuffing the Government and its argument that enforcing the statute will upsets the apple cart of Middle East peace.

Paul Barrett’s Law of the Jungle (Excellent Account of Chevron Ecuador)

by Peter Spiro

Paul Barrett gave a talk earlier this week at Temple on his Law of the Jungle. It’s a terrific journalistic account of the epic 20-year battle over Chevron’s pollution of Ecuador’s rain forest.

For anyone with a vague awareness of the case the book supplies a highly readable cheat-sheet. I suspect like many with incidental interests in international law, I had some idea that Chevron (Texaco) did some awful things in Ecuador but also that there was something not-quite-right about the plaintiffs’ side of the equation. Barrett’s account fills out the picture on both sides.

The book is a model biography of a case with epic turns. It’s also in many respects the biography of Steven Donziger, the activist lawyer who made this case different from other suits against US multinationals for misdeeds abroad. Barrett paints a pretty persuasive picture of how Donziger’s hubris ultimately did him in. For starters, Donziger had himself shadowed by a documentary filmmaker, the raw footage of which ended up discoverable along with the rest of his paper trail. Material that would ordinarily have remained protected by attorney-client privilege ends up supplying the backbone to Barrett’s narrative.

That gives the book something of an unbalanced feel — the equivalent from Chevron’s side isn’t part of the record ($400 million in fees to Gibson Dunn!), so Chevron’s litigating maneuvers get much less air time here. Conservatives and the business community will be happy with the result (see this favorable review in the Wall Street Journal, for instance). But although Chevron got itself in trouble in various respects along the way (starting with the oil drilling itself, but also including the strategically disastrous push to have the proceedings transferred to an Ecuadorian court which ultimately delivered an $18 billion judgment in the case), its lawyering was clearly of a more conventional description. There are interesting cameos of Ecuadorian politicians and judges, litigation venture capitalists, and other US lawyers who misguidedly jumped on board even after the veneer of celebrities and good press had started to crack. But it’s Donziger that makes this the exceptional case.

And exceptional for the telling. For any cause lawyer, this is a cautionary tale. Sure, one has to play public interest cases from various angles, in and outside the courtroom (including of course the media, with which Donziger proved masterful until things started falling apart). But there are limits, and Donziger clearly exceeded them on various fronts. Though he may yet survive the RICO judgment entered against him in the SDNY (on appeal, on fairly technical grounds unrelated to the underlying facts), he’ll come out of this with a severely tarnished reputation among progressives as well as more natural adversaries.

I’m not sure that the lessons are generalizable much beyond that. The book closes with thoughts on how US class-action lawyers have overreached in other contexts. I don’t know that Chevron Ecuador necessarily points in that direction. US-style litigation could still take hold on a global basis even as it gets a haircut at home. This case shows that transnational disputes have yet to be adequately institutionalized, with much greater potential to get out of hand in various directions. No one really wins on that terrain.

Looks Like AUMF Basis for ISIL Operation Will Stick

by Peter Spiro

After a flurry of commentary in the wake of Obama’s speech last week and the on-background legal justification that came with it, the silence has been deafening. The immediate reaction to the AUMF hook for the ISIL operation was something approaching disbelief. It came out of the blue and everyone felt blindsided.

But it is attracting some support. Marty Lederman offers a qualified defense here. Cass Sunstein is all in, so by definition it is a credible legal argument. In the New York Times, the ed board and Bruce Ackerman predictably condemn the justification. But the level of agitation among policy elites seems low, on par with responses to past presidential uses of force. There is a lot of chatter on the Hill, but the prospects for affirmative legislation to authorize or limit (or for that matter prohibit) the ISIL operation are slim. There is no groundswell of opposition from the public.

In other words, this one is going to stick. There will be no serious challenge to the Administration’s legal argument that the President has the authority to undertake the operation. From the Administration’s perspective, the AUMF basis has the advantage of turning off the War Powers Resolution’s 60-day clock. It may also look less confrontational to use a statutory justification (even if it is a stretch) than a constitutional one. It fits more comfortably into the Administration’s narrative of interbranch cooperation.

But it may not matter that the Administration grounds its argument in the AUMF and not in its independent constitutional powers under article II and historical practice. The bottom line is the same. The test: how will future presidents put the episode to work? On the one hand, to the extent that it’s just about applying a particular statute to particular circumstances, it might be seen as limited to the facts, good for this day and train only.

On the other hand, one could imagine it being deployed in support of an article II argument, especially to the extent the statutory basis for the operation looks thin in historical perspective. The informality of the justification would make it more pliable. (Will we get the full legal work-out on this from OLC? Maybe not.) If I were an OLC lawyer looking to justify some future military operation on presidential authority alone, it would look like a precedent to me.

The Administration’s strategy on the WPR clock in the Libya context had the same features and may have the same kind of legacy. The “hostilities” argument was thin as an exercise in statutory interpretation, but it was less confrontational than a constitutional claim (minimalism goes to war). The legacy there won’t just be about what qualifies as “hostilities” for WPR purposes. It is as much about the efficacy of the 60-day clock. The Libya episode doesn’t undermine claims that the WPR is unconstitutional. It might even support those claims, at least indirectly (especially as coupled with the Clinton Administration’s similarly thin defense against application of the 60-day clock in the Kosovo case).

So ultimately it may not matter too much which card the Administration played in asserting authority for the ISIL operation. As in the past, a president failed to secure specific, contemporaneous authorization for a limited use of force, and nobody really pushed back.

ISIL Foreign Fighters: You Can’t Take Their Citizenship. Can You Take Their Passports?

by Peter Spiro

The concern over ISIL foreign fighters had ramped up even before President Obama announced that he will preside over a September 24th UN Security Council Meeting on the subject. No surprise that politicians are jumping on the bandwagon. Ted Cruz introduced legislation last week in the Senate that would purport to terminate the citizenship of those associated with terrorist organizations. Michelle Bachmann has done the same over in the House. (Funny how the two chief sponsors of expatriation laws have their own personal experience with the loss of citizenship, Cruz with Canadian, Bachmann with Swiss.)

But Bachmann’s bill goes further in mandating passport revocation.

SEC. 4. AUTHORITY TO DENY OR REVOKE PASSPORT AND PASSPORT CARD.

(a) Ineligibility-

(1) ISSUANCE- Except as provided under subsection (b), the Secretary of State may not issue a passport or passport card to any individual whom the Secretary has determined is a member of an organization the Secretary has designated as a foreign terrorist organization pursuant to section 219 of the Immigration and Nationality Act (8 U.S.C. 1189) that is engaging in hostilities against the United States or its allies.

(2) REVOCATION- The Secretary of State shall revoke a passport or passport card previously issued to any individual described in paragraph (1).

(b) Exceptions-

(1) EMERGENCY AND HUMANITARIAN SITUATIONS- Notwithstanding subsection (a), the Secretary of State may issue a passport or passport card, in emergency circumstances or for humanitarian reasons, to an individual described in paragraph (1) of such subsection.

(2) LIMITATION FOR RETURN TO UNITED STATES- Notwithstanding subsection (a)(2), the Secretary of State, before revocation, may–

(A) limit a previously issued passport or passport card only for return travel to the United States; or (B) issue a limited passport or passport card that only permits return travel to the United States.

In contrast to citizenship-stripping, this kind of passport-stripping would pass constitutional muster from a rights perspective. In Haig v. Agee, the Supreme Court upheld passport revocation where justified by national security interests (that case involved Philip Agee, notorious for disclosing the names of undercover CIA operatives). No problem doing that in the context of ISIL fighters, one wouldn’t think.

To the extent there’s an issue here, it would involve separation of powers, Congress dictating to the President. The Supreme Court will have something to say about that this term. But the humanitarian exceptions clause undercuts any claim that this trespasses on presidential power, regardless of where the Zivotovksy case ends up.

At the same time, it’s pretty clear that the President could do this on his own (that was the case in Agee). A UNSC resolution (assuming one is adopted) would further legitimize the policy. Insofar as Congress has trouble getting its act together on anything, the Obama Administration might make passport-stripping a subsidiary component of its anti-ISIL strategy.

Obama’s Lame Justification for the ISIL Strikes (He Played the Wrong Card)

by Peter Spiro

I’ll pile on in deploring the legal justification for the expanded operation against the Islamic State. No one is buying the AUMF basis. In addition to Jens below, Jack Goldsmith and Jennifer Daskal have devastating critiques here and here.

The justification could have lasting negative consequences for interbranch relations in the war powers context. The 2001 AUMF involved a context in which congressional authorization was necessary, the response to the 9/11 attacks comprising real “war” for constitutional purposes. It has now been deformed beyond all recognition. This will deter future Congresses from authorizing the use of force even where such congressional authorization is necessary.

It’s a little like Tonkin Gulf. That resolution gave the President what he needed to respond to an (alleged) attack by North Vietnamese forces. But the ensuing conflict was beyond anything that Congress could have imagined at the time, and it felt burned for a generation thereafter for having written what turned out to be a blank check. Depending on how the ISIL operation goes, Obama’s justification could result a similar kind of institutional resentment and distrust, which will make cooperation even more difficult than it already is.

Part of the disappointment here is that he had a much better card to play: longstanding historical practice. (This typically comes under an Article II/Commander in Chief label, though I don’t think you need the constitutional text to get there). The ISIL operation would have comfortably fit into the tradition of Presidents undertaking limited uses of force without congressional authorization. There would have been continuity to that argument — many would have disagreed, but I think the critique would have subsided in due course, because it would have enjoyed a strong basis in the practice. I don’t know if the critique of the AUMF justification is going to subside so quickly. The early returns are not promising.

Three Reasons Why Obama Will Not (and Should Not) Seek Congressional Okay for ISIL Strikes

by Peter Spiro

It looks like President Obama learned his lesson. Last summer he decided to seek Congress’s advance approval for a strike against Syria’s chemical weapons capabilities. Political support for the operation evaporated. Obama looked weak and waffly (the decision was taken on a dime after a 45-minute South Lawn stroll with chief of staff Denis McDonough, almost certainly not vetted through the legal chain of command). Even though the ISIS operation will probably be more significant than what he had in mind for Assad, he won’t be looking for a formal nod from Congress.

In the run-up to the decision (which will likely be announced in his speech Wednesday night) there emerged a nearly unanimous chorus of voices — scholars, lawmakers, commentators — arguing in favor of advance congressional authorization. Among law profs, those pressing the case included Jack Goldsmith, Harold Koh, Ilya Somin, Steve Vladeck and Jennifer Daskal. Tim Kaine and Ted Cruz agreed on this one. The Atlantic’s Conor Freidersdorf had this stinging column pressing for a congressional mandate.

Why Obama is better served bucking this consensus:

1. Authorization would not have been easy to get. Most sane people agree that ISIS presents a threat that needs to be addressed. Prospective military action against the entity enjoys high levels of US popular support.

But that doesn’t mean Congress would have handed Obama the authorization he sought, even on a narrowly tailored basis. Remember, Congress is totally dysfunctional. GOP members facing reelection in November may be loath to do anything that supports the President. The tradition of politics stopping at the water’s edge seems quaint.

If an authorization measure were voted down, Obama would have boxed himself into a corner. Either he would have backed down, with US (and global) security taking the hit. Or he could have persisted with the action on a lonely and legally shaky basis. Although he would surely have framed a request for congressional authorization as constitutionally discretionary (as he did with Syria), that line would have rung hollow in the wake of rejection. This is a context in which actions speak louder than words. The legitimacy of any military action following a failed authorization would have been undermined at home.

And what would Congress’s approval have won him, assuming he got it? Politically, not much. Congress’s favorability ratings are at all-time lows (it is less popular than the U.S. going communist). Anything that can get through Congress now must by definition be so popular that Congress’s approval is itself like a single candle on a crowded cake. That small reward wasn’t worth the significant downside risk of a rebuffed request.

2. Seeking congressional okay would have set a terrible precedent for the future. Leaving aside direct attacks on the United States, there won’t be an easier case for military strikes than against the Islamic State, whose brutality has provoked international revulsion. Most future cases will involve adversaries not nearly so scary. The rise of Rand Paul Republicanism will raise the bar for authorizing any military action, however well advised. Imagine a close case arising during a GOP primary season. If President Obama had asked today, his successors would have had to ask tomorrow.

In that respect, he’s lucky that the Syria CW episode mooted out before it developed any further (it almost certainly would have gone badly). As an incomplete episode it didn’t set down a constitutional precedent. It’s a lot easier to walk back from Rose Garden statement than from a closed constitutional case-file.

3. Obama has ample constitutional authority for not securing congressional authorization. There has been a lot of hair splitting on constitutional war powers lately, the unfortunate byproduct perhaps of the AUMF experience. But the basic dividing line (as nicely argued in the OLC Libya opinion) is between real wars (requiring advance congressional authorization) and everything else (not requiring it). Whatever the ISIL operation ends up being, it is unlikely to be of the former description, involving high risk of significant casualties, huge appropriations that Congress can’t refuse, and escalation. It won’t be “war” for constitutional purposes. I don’t need Article II for this. I’ll take 200+ years of history.

There will be inevitable carping about the refusal to seek the congressional okay here. But that has always been the case, even with respect to quick and painless military action. It will be a little louder than usual this time around. There are the contingencies of this particular operation, which is likely to be complicated and drawn out, with no immediate prospects of erasing the problem. There may also be a broader shift against using force in the wake of Iraq and Afghanistan. But Obama will weather the denunciations, just as have all of his predecessors, validating the constitutional order in the process.