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

By Conor Friedersdorf

Senators Bob Corker, Rand Paul, and Tim Kaine agree: Congress should be consulted before President Obama takes any more military action in Iraq or Syria. "This fight, and the threat posed by ISIL, is serious enough that Congress and the administration must be united on U.S. policy going forward,” Kaine said in a statement. “I urge the administration to use the next two weeks to clearly define the strategy and objectives of its mission ... then bring it to Congress for a debate and authorization vote.”

President Obama knows the Constitution demands that. Before taking office, he was a U.S. senator and a lecturer in constitutional law at the University of Chicago, so he had expertise to draw upon when asked about the war power in 2007. "The President does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation," he told the Boston Globe.

Yet twice in his present term, Obama has prepared to unilaterally order military strikes on Syria, in violation of both the law and his own previous notion of prudent policy. "History has shown us time and again that military action is most successful when it is authorized and supported by the Legislative branch," he declared in that same 2007 interview. "It is always preferable to have the informed consent of Congress prior to any military action."

Always.

The first time that Obama nearly ordered a strike on Syria without congressional permission, he was going to target the country's repressive dictator. He "abruptly changed course" at the last moment and sought legislative input. In doing so, he avoided an intervention that the American public did not support. The New York Times nevertheless characterized that act of deference to the Constitution as a "risky gamble" for the White House, as if the country was clamoring for a new war. As predicted, the public forgot about Syria as soon as it faded from the news, and Obama paid no political price for not bombing the country.

Today, the White House is once again signaling that war may be close at hand, though this time instead of striking Syria's dictator, there is talk of U.S. air strikes against ISIS, a radical Islamist group that Syria's dictator is currently fighting. Picking up on the hawkish shrieks of Chuck Hagel and John Kerry, The New York Times notes that "Obama has authorized surveillance flights over Syria, a precursor to potential airstrikes there," while Yahoo News reports that the White House has no plans to ask Congress for permission if it decides to start bombing.

That is scandalous, though many journalists don't seem to agree. "The White House maintains the president has the authority to act unilaterally in Syria and Iraq for now," Lauren Fox declared at U.S. News and World Report. "The War Powers Act gives the president 90 days to intervene militarily without congressional approval."

Incorrect! The War Powers Resolution does no such thing. Read it yourself:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to

   (1) a declaration of war,
   (2) specific statutory authorization, or
   (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

The language is unambiguous. Absent a declaration of war or a statutory authorization from Congress, the president can't introduce the U.S. Armed Forces into hostilities save in "a national emergency created by attack upon the United States." If the president lawfully begins hostilities abroad due to such an attack, then he has 60 days to engage in hostilities without congressional approval. A 30-day extension can be obtained, but only if "the President determines and certifies to Congress in writing that unavoidable military necessity respecting the safety of United States Armed Forces requires the continued use of such armed forces in the course of bringing about a prompt removal of such forces." The War Powers Resolution is not a 90-day blank check for war! It's the same statute the Obama administration violated when it attacked Libya.

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."

This article available online at:

http://www.theatlantic.com/politics/archive/2014/08/the-congress-shall-have-power-to-declare-war/379189/