Author Archive for
Peter Spiro

Olympic Free Agency (An Idea Whose Time Has Not Come, Apparently)

by Peter Spiro

I have a piece up on Slate arguing that the Olympics should no longer require competitors to have the nationality of the country for which they compete.

A journalist friend of mine once told me, “Don’t ever read the comments. Just don’t.” Misguidedly thinking that Slate readers were somehow exempt from the laws of the internet, I made that mistake. Maybe 10 to 1 against. A lot of ad hominem stuff. (To this one, really, I’m not such a bad guy.) Doesn’t everyone know that we academics are supposed to play the role of the court jester, saying things that other people can’t?

On the substantive side, two responses:

1) The seemingly reflexive opposition to eliminating nationality requirements (“I’m not even going to read this piece”) takes no account of athlete interests. If you’re the number three player in China, you’re probably also the number three player in the world, but because of the two-competitor per-country quota in singles table tennis, you don’t get to compete. That seems unfair.

Restrictions on transfer of nationality are in some ways worse. The Olympic Charter requires a three-year cooling-off period when an athlete wants to compete for another country (waivable at the discretion of the country of origin). Sporting federation rules add another layer, sometimes extreme. Soccer and basketball prohibit transfers altogether. Once you’ve played for one country at the international level you cannot play for any other. That looks to me like a human rights problem, a kind of modern-day feudalism.

2) A number of commenters suggest my proposal will lead to corporate teams rather than national ones. I’m not suggesting (for now) that the Olympics abandon the state-based orientation, for team sports at least, just that individual players not be required to have citizenship in the country whose team they’re playing for.

But the role of corporate sponsorship is implicated here. It might be part of the answer. To the extent that the Jamaican bobsled team attracts a lot of attention, corporations should be interested in footing training bills in a way that Jamaica the state may not be. A big part of the charm is that the team is labeled as Jamaican. Corporations will have an interest in backing teams not just from the United States and other big countries. (Here is an example from Sochi involving tiny Tonga, though perhaps not one to be emulated.)

Regardless of nationality rules, we seem to be moving towards corporate sponsorship in any case. Would that be the end of the world? In Korea, baseball teams sport the name of companies not cities (and the fans are astonishingly fanatic). To the extent companies had their name on Olympic scorecards, they might be even more generous with their teams, with athletes and fans as the ultimate beneficiary. But I mean this as a THOUGHT EXPERIMENT ONLY, so please, no need for negative responses below!

Obama’s NSA Reform: Foreigners Get Protections, Too

by Peter Spiro

From the third paragraph of President Obama’s implementation of surveillance reforms (Presidential Policy Directive/PPD-28).

[O]ur signals intelligence activities must take into account that all persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and that all persons have legitimate privacy interests in the handling of their personal information.

The primary operative provision of the directive, section 2, adopts limitations on bulk surveillance data that “are intended to protect the privacy and civil liberties of all persons, whatever their nationality and regardless of where they might reside.” Likewise for section 4 and the safeguarding of personal information. (Protections for non-citizens are much more prominent in the operative instrument than in Obama’s Justice Department speech today, which unsurprisingly played to domestic politics more than international sensitivities, though it is there, too.) 

So Obama bought into a key Review Group recommendation. Whether or not one thinks the overall policy will suffice to rein in the NSA (a mixed verdict, at best), the fact that it applies to citizens and non-citizens alike strikes me as a pretty big deal – can’t think of an obvious precedent. As the biggest player on the global landscape, it will certainly contribute to the crystallization of an international right to privacy.

It also reduces the importance of the Supreme Court’s 1990 ruling in Verdugo-Urquidez, which found non-US citizens outside the United States to enjoy no Fourth Amendment rights (and which no doubt supplied the key legal authority for NSA programs aimed at foreigners). That doctrine becomes less consequential as the net supplied by other sources of law rises below rights located in the Constitution. The absence of constitutional rights no longer translates into no rights. This is another front on which sovereigntist victories in the Supreme Court will be hollowed out over the long run by forces beyond its control

Citizenship Round-Up: Nine Trends from 2013

by Peter Spiro

Citizenship practice and policy is mostly below the news radar; change is slow; and the field tends not to be reported in any sort of integrated way. So here are the key threads from 2013 and how they might spin out in 2014.

1. Citizenship is not priceless.  A growing number of states are selling citizenship. Malta is the latest. EU citizenship can be yours for 1.15mn Euros. Hungary, Spain, and Portugal now offer permanent residency in return for smaller investments in residential property, which can lead to citizenship in short order; and Cyprus tossed consolation passports to foreigners who lost more than three million Euros in the country’s banking collapse. The trend has been somewhat predictably lamented by liberal nationalists (see this forum, for example, on EUI’s excellent citizenship observatory site, with a lead contribution from Ayelet Shachar), but look for other states to cash in on a commodity that has no effective marginal cost. Will 2014 see a passport price war?

2. Even the Germans can live with dual citizenship. Americans will have a hard time understanding how big a flashpoint dual citizenship has been in German politics over the last 15 years. As a condition for remaining a part of Angela Merkel’s coalition after recent elections, Social Democrats secured the elimination of the so-called “option model” that had required German-born dual nationals to renounce one or the other by age 23. Dual Turkish-German citizens living in Germany are the big winners. If Germans can live with dual citizenship, any country can. Expect the dramatic trend towards acceptance of the status to move into its mopping up stage, with remaining holdouts (e.g., Japan) giving up their old-world jealousies.

3. American no more. 2013 saw a continued uptick in the number of individuals renouncing U.S. citizenship, with Tina Turner following in the footsteps of Facebook co-founder Eduardo Saverin, along with thousands of ordinary Americans living abroad. Taxes supply the clear motivation, as much the burdensome administrative requirements imposed by the Foreign Account Tax Compliance Act (FATCA) as the payment obligations themselves. Expat websites are aflame with outraged citizens ready to cut the cord. Expect this story to get closer to the front burner as FATCA enforcement kicks in during 2014. Do external Americans have enough political clout to repulse this IRS juggernaut?

4. Foreigners have privacy rights, too. In the NSA’s massive post-9/11 surveillance apparatus, it was open season on non-citizens outside the United States. With good jurisprudential reason: the Supreme Court (in Verdugo-Urquidez) squarely held that non-resident foreigners have no Fourth Amendment rights against the U.S. government. But that understanding is under pressure from other quarters. There’s the prospect of an international right to privacy. That won’t have much effect on America’s spymasters, at least not in the short run. The President’s NSA review board might be more influential. Its recent report called for substantial limitations on eavesdropping on foreigners (see pages 155-56). It will be interesting to see whether Obama buys in.

5. A human right to citizenship. The Dominican Republic came under withering human rights fire after its Supreme Court declared Dominican-born individuals of undocumented parents (almost all Haitian) not to enjoy Dominican citizenship. The ruling leaves 200,000 effectively stateless. Those crying foul included the major human rights groups, the UN, major powers, the Caribbean Community, and the Dominican diaspora. Expect the DR to reverse course during the coming year or face some material consequences. Other states are also coming under increasing scrutiny for rights-problematic citizenship practices. The Gulf States are getting more bad press for their notoriously ungenerous naturalization laws. Notwithstanding significant goodwill in the wake of the transition to democracy, Burma is not getting a free pass on its continuing refusal to facilitate citizenship for the Rohingyas. Human rights-based citizenship claims are clearly on the upswing, a context in which sovereignty once supplied a trumping defense.

6. Obama’s gives up on The New Citizenship. President Obama centered citizenship as a theme in a number of high profile speeches, including the trifecta of his nomination acceptance speech, his second inaugural address, and the State of the Union. In his words, citizenship “describes the way we’re made. It describes what we believe. It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations.” Lofty rhetoric, but nobody seemed to notice. Don’t expect any more stabs at this one. Much as he would like it to, this will not go down as the defining label of the Obama Presidency.

7. Ted Cruz may be a Canadian, but he is eligible for the presidency. There’s a delicious irony in the fact that the candidate most attractive to Obama-obsessed birthers himself has a much bigger question-mark relating to presidential eligibility. But even though Ted Cruz was born in Canada (and holds Canadian citizenship as a result), he is almost certainly eligible to run for president as a “natural born” U.S. citizen, holding citizenship at birth through his mother. Cruz says he has applied for termination of his Canadian citizenship. Expect the questions to linger if his candidacy looks viable; it’s just too easy a poke in the Tea Party gullet.

8. The path to legal residency matters more than the path to citizenship. At least among those affected, namely, 11-13 million undocumented aliens in the United States, as evidenced in a Pew Hispanic Center poll and reported by Julia Preston in a NYT story here. This can’t be surprising, since the main drawback of being out of status is locational insecurity. So why the persistence of the popular political tagline, “a path to citizenship”? It plays better for political proponents of regularization by lending their agenda a high-minded civic orientation. It also seems required by American notions of equality: we can’t just give undocumented aliens permanent residence insofar as it would offend baseline equality norms. Could reform advocates cave on this in 2014 if it presents the only path to a deal? Maybe.

9. Recementing ties to long-lost brothers and sisters. Spain followed through on its 2012 promise to extend citizenship to descendants of Sephardic Jews expelled from Spain half a millennium ago. Though meaningful ties persist (including in a still-living language spoken by Sephardi), one might wonder if the Spanish government was looking to capitalize on somewhat tenuous ties to its economic advantage, granting citizenship to nonresidents at the same time residents (Moroccans, for example) face significant obstacles to naturalization. More controversially, Hungary moved ahead with policies to extend citizenship — and the vote — to nationalistic co-ethnics in neighboring Slovakia and Romania supportive of the right-wing government in Budapest. Look for more countries to strategically relax requirements for citizenship by descent as they increasingly see diaspora populations as an economic and/or political resource.

And a couple to watch for 2014: what would be the UK/EU citizenship mechanics of Scottish independence; will increasingly common birth tourism packages revive efforts to scale back birthright citizenship in the US; and how will citizenships of convenience play out in the Sochi Olympics. Happy New Year!

Somalia to Ratify Children’s Rights Convention (You Know What That Means)

by Peter Spiro

Not otherwise newsworthy. . . except that it makes the US the only country in the world that will not have ratified it (full list of accessions here). It’s a glaring manifestation of American exceptionalism, and not in a good way.

With the Disabilities Convention making another go of it in the Senate, perhaps the US could turn the corner on its problem with human rights treaties (Bob Corker is wobbling, would be a key switch to yes). Holding out in complete isolation will increasingly be of symbolic value only, catering to a shrinking minority of Boltonite international law nay-sayers, as universal treaty norms move into the realm of customary law and creep in through other channels.

Bhagwati in Foreign Affairs on Bottom-Up Immigration Reform

by Peter Spiro

Columbia University’s Jagdish Bhagwati and Francisco Rivera-Batiz have an excellent piece in the November/December issue of Foreign Affairs in which they throw up their hands at the prospect of comprehensive immigration reform and look to the states for some progress on the issue. The piece served as the basis for Bhagwati’s delivery last week of the 2013 Emma Lazarus Lecture, co-sponsored by Columbia Law School and its School of International and Public Affairs. I was delighted to serve as a discussant for the lecture.

Bhagwati makes two basic points in the piece: that federal policy on undocumented immigrants is inhumane in an unfixable way, and that the more promising vehicle for advancing rights is through competition among the states. We should, in other words, give up on Washington and look to state capitals by way of moving forward on immigration reform.

Count me in. As Bhagwati points out (the reflexes of many immigrant advocates notwithstanding), the federal government, even under Democrat presidents, is capable of great cruelties when it comes to the treatment of undocumented aliens. The Obama Administration has deported a record number of non-citizens, many of them for trivial crimes. The Senate’s version of immigration reform includes a ridiculous increase (by almost everyone’s estimation) in the border security budget. Anyone assuming that comprehensive immigration reform will be friendly to immigrant interests has history to argue against.

The states, meanwhile, will see the error of their ways in treating undocumented immigrants badly. If undocumented immigrants feel unwelcome, they will leave for more hospitable jurisdictions. That by itself will harm a state’s economy — witness the crops left rotting on the vines in Alabama after it enacted the draconian HB 56 in 2011. Greater harm results from a tarnished brand. After Arizona enacted SB 1070, it lost tens of millions of dollars in convention and tourism dollars (Mexico issued a travel advisory cautioning against travel there). It can hardly help Alabama’s future efforts to attract big-ticket foreign investment after it locked up German and then Japanese auto manufacturing executives for possible violations of its law.

Hence the very real possibilities of “race to the top” federalism in the immigration context.

Even in the wake of the Supreme Court’s decision last year in Arizona v. United States, which gutted SB 1070, the states have room to differentiate their treatment of undocumented aliens. States can adopt their own sanctions regimes against those who employ undocumented workers. They are free to grant or deny in-state tuition to undocumented alien college students. They can grant or deny drivers licenses to the so-called childhood arrivals insulated from deportation as a matter of Obama administration policy. They can grant or deny other state public benefits to undocumented aliens. (The most recent example: whether an undocumented immigrant is eligible to practice law.) Finally, they can adopt (or not) the kind of “papers, please” measure that the Supreme Court upheld in the Arizona case.

But this discretion is mostly at the margins. For the states to play a central role in immigration reform, they’ll need more regulatory space. That will require federal activation. Devolving power to the states itself might grease the wheels to securing comprehensive immigration reform in Washington, allowing federal legislators to pass the buck downstairs. . . .

Opinio Juris Podcast on Arguments in Bond v. United States

by Peter Spiro

Peggy, Julian, Duncan and I took a stab at a podcast discussion of Tuesday’s Supreme Court arguments in Bond v. United States.

 

 

You can now find an audio of the argument itself here. Mentioned in the course of the discussion are related posts by David Golove and Michael Ramsey here and here. The Nick Rosencranz Harvard Law Review article that has been a key point of attack is found here (Eric Posner’s brutal critique here). The excellent symposium volume on Missouri v. Holland put together by Peggy McGuinness in 2008 is found here.

We’ll hope to do this again in the future (but only if we can find some good theme music).

Disabilities Treaty Committee in the Crosshairs (LawProf to the Rescue)

by Peter Spiro

Very interesting hearing yesterday before the Senate Foreign Relations Committee on the UN Convention on the Rights of Persons with Disabilities. C-Span video here.

Treaty opponents are focused on the associated Committee on the Rights of Persons with Disabilities (charged with considering state-party compliance) and the risk of evolving treaty meanings. It’s perfect terrain on which to transpose longstanding anxieties regarding activist judges onto even more freighted, counter-majoritarian-challenged international institutions. In yesterday’s hearing, treaty opponents pushed the line that the committee would end up interpreting the the CRPD, for example, to find a right to abortion (and, of course, to prohibit home schooling).

Enter University of Georgia law professor Timothy Meyer. As a witness, Tim offered up a way to switch some votes: beef up an understanding making clear that treaty committee interpretations would have no consequence. In the last attempt at Senate approval, the resolution package included an understanding to the effect that “The United States of America understands that the Committee on the Rights of Persons with Disabilities has no authority to compel actions by states parties, and the United States of America does not consider conclusions, recommendations, or general comments issued by the Committee as constituting customary international law or to be legally binding on the United States in any manner.”

To this, Tim would add:

The United States further understands that the Committee’s interpretations of the Convention are not entitled to any weight apart from that given to them by States Parties to the Convention.

Moreover, the United States understands that no interpretation of the obligations of the Convention issued by the Committee or any other international institution can have binding legal effect with regard to the United States unless the United States consents to such an interpretation in accordance with its constitutionally required procedures.

Who knows, maybe this is the path to ratification. Ranking member Bob Corker seemed to be buying, and there was an unusually high level of genuine engagement with Tim as a witness (another way of saying that he was very effective). He urged Tim to work with treaty foes Michael Farris and Susan Yoshihara to work out a RUDs package that “fully inoculates” the US from the parade of putative CRPD horribles. (All very well for US ratification purposes, but would seem to invite international hackles that US RUDs are getting even more inconsistent with the objects and purposes of the treaty.)

The hearing is worth a background listen. A number of (misplaced) allusions from treaty skeptics to the Bond argument taking place across the street at the Supreme Court, of the “fool me once, shame on you, fool me twice, shame on me” variety (see, for instance, Jeff Flake at 1:34, persuasively rebutted by Dick Durbin at 1:42). Supporters stressed how acceding to the treaty would bolster US leadership globally on disability rights (and how it would incidentally benefit disabled Americans travelling abroad). The overriding concern was with insuring with triple redundancy that the treaty could never force the US to change its way of doing things — as if the US can sustain some sort of splendid isolation from international law.

Bond v. United States and the Non-Use of the Treaty Power

by Peter Spiro

Has the federal government ever put Missouri v. Holland to work? I don’t think so, though I always hesitate to state it categorically. The Supreme Court’s 1920 decision in Holland squarely held that the Treaty Power adds something to other enumerated federal authorities. But there appears to be no instance in which the federal government has actually used a treaty to do something that it couldn’t do under some other power, other than in the (putative) controversy implicated by Bond itself. (The Supreme Court hears arguments in Bond tomorrow.)

I thought for a moment I was nailed on this point reading through the amicus brief submitted by John Bellinger and other former State Department Legal Advisers. The brief highlights the Controlled Substances Act and its status as implementing legislation for the 1961 Single Convention on Narcotic Drugs. (Well, that would be a big one!) The Act does put the treaty to work in interesting ways, including as a kind of international delegation under which domestic procedures for drug classification can be ignored if a drug becomes controlled under an international agreement. See 21 U.S.C. 811(d). Very interesting, but somewhat beside the point. As the Supreme Court recently held in Raich, Congress has the power to regulate controlled substances under the Commerce Clause.

The same goes for other agreements discussed in the Legal Advisers’ brief, including agreements relating to environmental protection, diplomatic immunity, and international driver’s licenses. In other words, the U.S. could enter into those agreements — and implement them — even if Missouri v. Holland were overruled.

The non-practice under Holland cuts both ways. As those supporting the government point out, it shows that political process works to protect state interests. The Treaty Power as interpreted by Justice Holmes looks pretty scary in theory, from a states rights perspective, to the extent it could swallow up all constraints on federal power. But in practice it’s been toothless.

On the other hand, complete non-use by the political branches might evidence that Missouri v. Holland doesn’t reflect constitutional norms on the question, that the Treaty Power has fallen into a kind of constitutional desuetude. In other words, Missouri v. Holland may have been overruled by nearly a century’s worth of subsequent contrary practice.

Either way, the lack of any real practice (and the anomalous circumstances of Bond itself) cautions against a merits ruling on the Treaty Power issue, in the spirit of judicial minimalism and constitutional avoidance. Who knows, there may come a time when the political branches are interested in intentionally asserting a more robust Treaty Power. That world would almost surely be a different one than we find ourselves in today (different enough to overcome the longstanding refusal to use the Treaty Power to expand federal authorities). Better to wait to see what that world looks like before deciding so important a question.

The Improbable Bond v. United States

by Peter Spiro

As foreign relations law wonks gear up for next Tuesday’s argument in Bond v. United States, I wanted to ask, how did we end up with this case, anyway? The small-time, slightly sordid facts are (for classroom purposes) a lawprof’s dream. For those of you who haven’t been following along, the case involves a love triangle in which a wife attacks her husband’s lover, now pregnant with his child. Instead of attacking with a tennis racket or small appliance or some kitchen crockery, she more imaginatively sprinkles toxic chemicals on the woman’s car door, doorknob, and mailbox (the backstory is nicely recounted here).

Instead of pursuing the case under state assault and/or harassment laws, the government prosecuted Bond under 18 U.S.C. 229(a)(1), which criminalizes the use of chemical weapons and was enacted pursuant to the Chemical Weapons Convention.

My question: how did the government decide to pursue the case under the CWC? A case that would otherwise have sleepily played out in a local DA’s office may have come to federal attention through postal inspectors. After that, was it some enterprising young prosecutor who couldn’t seem to shoehorn the case to fit any other federal crime? One can almost imagine an a-ha moment for some newly-minted, hard-working AUSA, late night, deep into the books — “we can nail her for chemical weapons!”

Can we just admit, then, that this is a freak case? The background doesn’t affect the affect the legal analysis but it sure will affect the atmospherics. One can hardly imagine a worse case from the government’s perspective for defending an expansive Treaty Power. I wonder if that AUSA got kudos for creativity. Why didn’t State and/or Justice make this case go away? Why fight so significant a battle on such insignificant terrain? It’s not as if the government is pressing and protecting a clear policy agenda here. Our CWC treaty partners would hardly be offended if Carol Anne Bond were sprung.

Given that the federal government has made very, very little use of the Treaty Power (possibly never) to enlarge its constitutional authority, maybe it would serve everyone better if the Court dodged the broad issue and ruled on a narrow one. The case could be dispatched on narrow statutory interpretation grounds: the provision should not be read to cover the conduct involved. But maybe that’s more than we can hope for from this Court, which looks increasingly intent on asserting itself in the realm of foreign affairs. 

NSA Files: An Emerging Human Right to Privacy?

by Peter Spiro

Josh Gerstein has this interesting piece at Politico on how the citizenship divide is breaking down as a defensible perimeter in the legal justification of electronic surveillance. It’s clear where the old reflex is coming from: lawyers steeped in a constitutional tradition that distinguishes citizens from foreigners (and US territory from foreign territory) in the application of constitutional rights. (The key cases are Reid v. Covert and US v. Verdugo-Urquidez.) But that’s not going to fly any more in the face of globalized rights consciousness.

The concern is general publics, not foreign government leaders. The latter should know how to protect themselves. I sure hope that the German government has Angela Merkel on a very secure phone now — the US government may no longer be eavesdropping, but lots of others, including sophisticated nongovernmental persons, may be. As Ian Hurd puts it with respect to the promise not to eavesdrop on foreign officials, “Breaking news: 35 people won’t be spied on, 7,119,999,955 will.”

Maybe not forever. We’re already seeing efforts to universalize data protection efforts against security surveillance. There’s this report from FP of a UN initiative:

Brazil and Germany today joined forces to press for the adoption of a U.N. General Resolution that promotes the right of privacy on the internet, marking the first major international effort to restrain the National Security Agency’s intrusions into the online communications of foreigners, according to diplomatic sources familiar with the push. . . .

Brazilian and German diplomats met in New York today with a small group of Latin American and European governments to consider a draft resolution that calls for expanding privacy rights contained in the International Covenant Civil and Political Rights to the online world. The draft does not refer to a flurry of American spying revelations that have caused a political uproar around the world, particularly in Brazil and Germany. But it was clear that the revelation provided the political momentum to trigger today’s move to the United Nations. The blowback from the NSA leaks continues to agonize U.S. diplomats and military officials concerned about America’s image abroad.

Expect to see more of this kind of activity in places like the treaty committees and among special rapporteurs, as well as on a bilateral/regional basis (think TPP and and TTIP) and in domestic legislation. Article 17 of the ICCPR supplies a basic hook by prohibiting “arbitrary or unlawful interference” with privacy. No way that this ends up as a specified hard norm any time soon, but an accretion of steps may well add up to an international norm against blanket data collection. Obviously you can’t simply transpose domestic requirements (warrants and the like) for enforcement-related surveillance against private persons, but going forward governments may have to satisfy some sort of individualized thresholds for listening in.

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.

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.