'The Congress Shall Have Power ... to Declare War'

Obama should seek congressional approval before ordering any strikes on Syria because the law compels him to do so, but that isn't the only argument for a legislative vote:

  • The legislature is in a better position than the executive branch to carry out the will of the American people, which ought to dictate United States foreign policy.
  • A congressional debate can help to test the arguments for intervention, which may well be wanting given the dearth of public scrutiny they've gotten.
  • Every two years, Americans decide whether to keep or oust their representatives in the House. Knowing where they stand on hugely consequential matters of national policy is integral to the American system functioning.
  • A war to defeat ISIS would be a huge undertaking. Embarking without the support of the citizenry casts doubt on whether the country would see the effort through.
  • It is dangerous to give a single man the power to take a nation to war without anyone being able to do a thing to stop him. It is, in fact, anti-Madisonian.

As I recently noted in my Orange County Register column, the fault here is not Obama's alone. Many legislators bear a large portion of the blame: "Taking a vote in favor of war, or against it, is a perilous act. They’re declaring themselves on a subject of great consequence. If they’re proven by later events to have judged poorly, they can be held accountable. As a result, many legislators abdicate their Constitutional responsibilities on matters of war and peace." Americans can nevertheless contact their congressional representatives and demand their position.

Some will argue, like Jack Goldsmith, that Obama can lawfully strike Syria if he wants to do so. Obama supporters shouldn't fool themselves about how such arguments are grounded. Goldsmith writes:

For what it is worth, the President is on firm legal ground in deploying force unilaterally against IS, without congressional authorization, for the self-defense of the nation.

There has been no published legal opinion on the use of force against IS, but a good summary of the authorities that the administration is relying on can be found in this once-much-criticized opinion by John Yoo, written on September 25, 2001. That opinion garnered many precedents to conclude that “the Constitution vests the President with the power to strike terrorist groups or organizations that cannot be demonstrably linked to the September 11 incidents, but that, nonetheless, pose a similar threat to the security of the United States and the lives of its people, whether at home or overseas.” This is precisely the logic of the current and planned use of force against IS.

Obama is, indeed, engaged in John Yoo logic, the very thing he repudiated to win election. Yoo's standard would effectively let the president go to war anywhere he wanted. Despite Goldsmith's embrace of Yoo logic, he adds, "the President can rely on the logic and precedents in Yoo’s opinion for quite a while. But domestic legal authority is not now what matters. What matters is domestic legitimacy, and for that the President needs, and should want, Congress’s support."

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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