What Congressional Approval Won't Do: Trim Obama's Power or Make War Legal

Critics think Obama has boxed himself in and surrendered executive-branch power to Congress. They’re in for a big surprise.
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Mike Theiler/Reuters

One of the most misleading metaphors in the discussion of President Obama’s Syria policy is that the president has “boxed himself in” or has “painted himself into a corner.” These metaphors treat a president’s available actions as if they were physical spaces and limits on action as if they were physical walls. Such metaphors would make sense only if we also stipulated that Obama has the power to snap his fingers and create a door or window wherever he likes. The Syria crisis has not created a new precedent for limiting presidential power. To the contrary, it has offered multiple opportunities for increasing it.

If Congress says no to Obama, it will not significantly restrain future presidents from using military force. At best, it will preserve current understandings about presidential power. If Congress says yes, it may bestow significant new powers on future presidents -- and it will also commit the United States to violating international law. For Obama plans to violate the United Nations Charter, and he wants Congress to give him its blessing.

People who believe Obama has painted himself into a corner or boxed himself in might not remember that the president always has the option to ask Congress to authorize any military action he proposes, thus sharing the responsibility for decision if the enterprise goes sour. If Congress refuses, Obama can easily back away from any threats he has made against Syria, pointing to the fact that Congress would not go along. There is no corner. There is no box.

Wouldn’t congressional refusal make the United States look weak, as critics including Senator John McCain warn loudly? Hardly. The next dictator who acts rashly will face a different situation and a different calculus. The UN Security Council or NATO may feel differently about the need to act. There may be a new threat to American interests that lets Obama or the next president offer a different justification for acting. It just won’t matter very much what Obama said about red lines in the past. World leaders say provocative things all the time and then ignore them. Their motto is: That was then, and this is now.

If Congress turns him down, won’t Obama be undermined at home, as other critics claim? In what sense? It is hard to see how the Republicans could be less cooperative than they already are. And it’s not in the interest of Democrats to fault a president of their own party for acceding to what Congress wants instead of acting unilaterally.

Some commentators argue (or hope) that whatever happens, Obama’s request for military authorization will be an important precedent that will begin to restore the constitutional balance between the president and Congress in the area of war powers. Don’t bet on it. By asking for congressional authorization in this case, Obama has not ceded any authority that he ­or any other president ­has previously asserted in war powers.

Syria presents a case in which previous precedents did not apply. There is no direct threat to American security, American personnel, or American interests. There is no Security Council resolution to enforce. And there is no claim that America needs to shore up the credibility of NATO or another important security alliance. Nor does Obama have even the feeble justification that the Clinton Administration offered in Kosovo­: that congressional appropriations midway through the operation offered tacit and retroactive approval for the bombings.

It is naive to think that the next time a president wants to send forces abroad without congressional approval, he or she will be deterred by the fact that Barack Obama once sought congressional permission to bomb Syria. If a president can plausibly assert that any of the previous justifications apply -- ­including those offered in the Libya intervention -- the case of Syria is easily distinguishable.

Perhaps more to the point, Congress still cannot go to the courts to stop the president, given existing legal precedents. Congress may respond by refusing to appropriate funds, but that is a remedy that they have always had -- and have rarely had the political will to exercise.

The most important limit on presidential adventurism is political, not legal. It will turn less on the precedent of Syria than on whether the last adventure turned out well or badly.

In fact, the Syria episode offers Obama­ and future presidents­ new opportunities for increasing presidential power. Obama has submitted a fairly broad authorization for the use of military force (AUMF) proposal to Congress. It is not limited either temporally or geographically; it does not specifically exclude the use of ground troops; and it requires only that the president determine that there is a plausible connection between his use of force and the use of weapons of mass destruction in the Syrian civil war. If Congress adopts this proposal, President Obama ­and every future president ­can simply add it to the existing body of AUMFs and congressional authorizations.

In the American system, presidents often gain the most power not by acting unilaterally or in defiance of congressional statutes but by relying on previous congressional authorizations and interpreting them generously to expand their authority­ -- sometimes in ways that Congress never dreamed of. A case in point is the 2001 AUMF against al-Qaeda, which has no time limit. It has served as the justification for a wide range of executive actions by Presidents George W. Bush and Obama, and it will probably to continue to do so well into the future. That is a good reason to amend Obama’s proposal for a new AUMF to include a sunset clause, a geographical restriction, and a limit on what kinds of forces can be used.

When it comes to increasing executive power, congressional statutes are often a president’s best friend. Indeed, Bush got in the most trouble during his first term precisely in those areas in which he failed to seek congressional authorization: ­military tribunals and electronic surveillance. Bush learned his lesson in his second term. He asked Congress for authorization in the Military Commissions Act of 2006, the Protect America Act of 2007, and the FISA Amendments Act of 2008. Congress passed all of them, ratifying most of what Bush had already done -- and, equally important, creating broad and permanent new powers in the executive branch. Much of the expansion of surveillance under Obama has occurred through aggressive executive-branch interpretation of congressional authorizations like these, as well as of the Patriot Act, another congressional authorization from the Bush years.

Ratification of an AUMF for Syria might set a precedent for Congress as much as for Obama. It would suggest that Congress agrees that the United States should enforce international norms against the use of dangerous weapons ­or intervene to prevent serious violations of human rights -- ­even when the United Nations will not lend its support.

That precedent would be worrisome for a different reason. Most of the debate over Syria in U.S. politics has focused on whether Obama’s proposed action would violate the U.S. Constitution. What may get lost in the debate is that even if Congress approves, an attack on Syria would still violate international law ­-- in particular, the UN Charter.

When a member state is not defending itself against attack, the charter generally permits the use of force only when authorized by a Security Council resolution. And there has been no such authorization in the case of Syria.

The whole point of the charter is to prevent member states from attacking each other based on their individual interpretations of international law. If Russia or China decided to attack an American ally on the grounds that it had violated international law, the United States would surely object, and rightly so. Even if America’s goal is humanitarian intervention with the purest of motives, it would be legal under the charter only if the Security Council determined that humanitarian intervention was justified. What Obama is proposing to do is precisely what the charter was designed to prevent.

That is reason enough for Congress to turn Obama down, although I suspect that this justification will not weigh very heavily with most members. Still, if it does, Congress will take Obama’s own call for respecting and enforcing international norms seriously -- more seriously than Obama himself. That is a precedent worth pursuing.

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Jack M. Balkin is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School, and the founder and director of Yale's Information Society Project.

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