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

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.

Presented by

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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