Many years ago, I attended a panel consisting of the legendary Barney Frank. (I think there were others, but somehow they didn't get a word in.) An audience member asked Frank how Congress could take back some of its power to declare war, which had been "usurped by the executive."
Frank gave him his trademark who-let-you-in-you-moron look. "Usurped it?" he said. "USURPED it? We throw it at him! We BEG him to take it!"
Not much has changed in the past 20 years. Faced with a question of war and peace, Congress as an institution seems to hope the president will act without asking permission. That way, members can attack him if things go south, and pass resolutions praising themselves if they go well.
Even what seems like a step back for executive power may actually be a retreat for Congress's shared responsibility. For an example, look at the language of the Senate joint resolution approved this week by the Foreign Relations Committee to authorize a military strike in Syria. Hidden among the "whereas" boilerplate in the document -- mostly discussing the villainy of Assad and the danger of chemical weapons -- is this short clause: "Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States ..."
Glides right past the eye, doesn't it? Good old Constitution, empowering the president to protect us all!
The only problem is it's not true, and it represents a two-century high-water mark in claims of executive power. Having been consulted by the president, Congress is poised to respond by throwing back at him not only the current decision but sweeping new powers he didn't have before.
During this crisis, all of us should be checking Lawfare the way heart patients check their pulses. Jack Goldsmith of Harvard, writing there, was the first I know of to pick up the strange little constitutional time bomb:
The draft AUMF enhances, through congressional recognition, the President's claims of independent constitutional authority to use force in Syria. Here is why. The draft acknowledges in its last "Whereas" clause that the President "has authority under the Constitution to use force in order to defend the national security interests of the United States." This broad and unqualified congressional acknowledgment of independent presidential constitutional power takes on special significance when combined with other "Whereas" findings, especially Congress's recognition that (a) "Syria's acquisition of weapons of mass destruction threatens ... the national security interests of the United States; and (b) "Syria's use of weapons of mass destruction and its conduct and actions constitute a grave threat to ... the national security interests of the United States." (My emphases.)
I think these provisions together constitute congressional acknowledgement that the President has constitutional authority, independent of the AUMF, to use military force to defend against the acknowledged threat to U.S. national security interests posed by the Syrian acquisition and use of WMD .... Note that this very broad congressional acknowledgment of presidential power does not suggest any geographical limitation.
... [T]he Senate's draft "Whereas" clause is much broader than the analogous ones during the Bush era. The "Whereas" clause in the 2001 AUMF, which at the time was criticized for being quite broad, is more concrete and narrow than the Senate draft, for it recognizes only that "the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States." (The 2002 Iraq AUMF has the same basic language as the 2001 AUMF).
The "Whereas" language in the draft AUMF gives significant support to the position that the President has some (uncertain) independent constitutional authority to use force in Syria, regardless of what Congress authorizes, and (perhaps) beyond what Congress authorizes. Since I believe that a unilateral presidential use of force in Syria would go beyond all past OLC precedents, the "Whereas" clause as currently drafted is especially important to the President's novel constitutional position.
Note that this astonishing language did not appear in the administration's own draft authorization. Having been asked for broad authority already, the warriors on the Senate Foreign Relations Committee, for all their minimizing language, have in practice widened the White House's mandate -- to the point that, if it is adopted by Congress, neither Barack Obama nor any future president will likely have to come back for additional authority to fight against Syria and its chemical weapons anywhere in the region. And it will have written into law an explicit statement that the president doesn't need authorization to use force anywhere, any time he or she determines that "national security" demands it.
I have consulted my presidential-power gurus and there is widespread concern verging on horror. Peter Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University's Moritz College of Law, summarized for publication what I have been hearing from those I respect:
A Congressional resolution conceding, without limit, that the president "has authority under the Constitution to use force in order to defend the national security interests of the United States," is not only constitutionally wrong, but institutionally weird. As Stephen Griffin has documented, no president would have made such a strong claim before World War II, and no president since Truman -- whatever their rhetoric -- has committed U.S. forces to a major deployment abroad without congressional authorization. This "whereas" clause is contrary to the Constitution's original meaning, contrary to the War Powers Resolution, subversive of Congress's proper role in war powers decision making, and wholly unnecessary to frame the operational provisions of an AUMF on Syria..
In an email exchange, Louis Fisher, who has studied separation of powers for four decades at the Congressional Research Service and is now scholar in residence at the Constitution Project, agreed:
The final Whereas clause in the Senate bill represents an extraordinary abdication of congressional authority and violates the basic principle of republican government. Lawmakers should never publicly (or privately) acknowledge that the president has some kind of open-ended authority under the Constitution to use force when he personally finds it necessary to defend the "national security interests of the United States."
In the next few weeks, we will hear a lot of self-congratulation about how our robust democracy allows an open debate on the question of peace and war. Let's not get too giddy about our national commitment to the rule of law. In the midst of the discussion, our legislators may be throwing all their power (which is really our power as citizens) at this and future presidents.