Decision to Ask Congress to Authorize Syria Attack Rejuvenates Legislative Role in War

By Jonathan Broder, CQ Roll Call

President Barack Obama’s decision to seek congressional authorization in advance of a limited military strike against Syria could set a precedent that gives Congress greater war powers and makes it far more difficult for future presidents to act on their own, legal experts say. Such a precedent could even result in less muscular U.S. foreign policies and a lower American profile in the world.

Ever since the end of the Vietnam War in 1973, successive American presidents have regarded congressional restraints on the executive’s war powers — such as the War Powers Resolution of that year (PL 93-148) — as unconstitutional or, at best, purely advisory, freeing them to launch numerous minor military operations across the globe without advance congressional approval.

In cases where lawmakers have sued the executive for overstepping its powers, the Supreme Court has always declined to rule, calling on the two branches to iron out their differences.

In the case of major military engagements, however, such as the 1991 Persian Gulf war and the 2003 Iraq war, presidents have sought and secured congressional authorizations to use force, but for political — not constitutional — reasons. But when Obama launched a no-fly zone over Libya in 2011, he did not ask for advance authorization from Congress, nor was Congress able to muster enough agreement to weigh in one way or the other.

Obama also maintains he does not need congressional authorization to strike Syria in retaliation for a chemical weapons attack.

“The president knows he has the power to do this, but he is empowering the Congress to empower the nation through the decision that we make together,” Secretary of State John Kerry said Sunday on CNN.

But the fact that Obama wants the legislature’s nod for the limited use of force against Syria may mark a watershed in the modern history of war powers, said Peter Spiro, a professor of constitutional and national security and Temple University law School.

“This sets a precedent that will be difficult to walk back from,” he wrote in an email. “This could shift the balance in Congress’ favor. Future presidents will have a tougher time going it alone.”

Isolated at Home and Abroad
Politically, Obama’s move appears to be an attempt to break out of the isolation he’s been facing both domestically and internationally ever since his administration began signalling that a U.S. attack on Syria was imminent.

From their home states and districts, a chorus of both Republicans and Democrats had been demanding the president recall Congress from its August recess to get authorization for a military strike, which many lawmakers regard as having little military value in the first place. Meanwhile, opinion polls show a war-weary American public opposed to another military operation in the Middle East.

Internationally, Russia, one of Syria’s principal backers and a veto-wielding member of the United Nations Security Council, opposes any U.N. resolution that would sanction an attack.

Obama suffered perhaps his greatest blow last week when Britain, normally a reliable partner in U.S. military operations, backed away following the surprise defeat of an attack-related government resolution in the British parliament.

While lawmakers applauded Obama’s move as an acknowledgement of the role Congress should play in matters of war, the administration can expect to encounter a flood of questions and criticism over how the president’s proposed strike fits into his overall policy toward Syria, now in the third year of a civil war that has killed at least 100,000 people.

Two Senate committees — Foreign Relations and Armed Services — are scheduled to return early from the congressional recess to begin their debate over an administration draft of an authorization measure on Tuesday.

“The Administration’s Syria policy has been incoherent, and there are many unanswered questions, so I welcome the President’s decision to seek congressional authorization for any use of military force and look forward to a vigorous debate on this critical issue.,” California Republican Ed Royce, chairman of the House Foreign Affairs Committee, said Saturday in a written statement.

Big Gamble
Some conservative legal experts say Obama would have been better off not seeking congressional authorization and attacking Syria using his executive powers.

“He’s got no political capital, he’s got no good will on the Hill, and he’s provided no rationale for this concept at all,” says David Rivkin, a former Justice Department and White House official in the Ronald Reagan and George H.W. Bush administrations. “This is the first time I can remember in American history when it’s a bad idea to go to Congress.”

It is impossible to know at this point if Obama will win a vote authorizing force against Syria.

“The President is taking a big risk here,” Jack L. Goldsmith, a former Justice Department official in the George W. Bush administration, wrote on the popular legal blog, Lawfare.com. “But he will be incomparably strengthened, legally and especially politically, if he is able to win congressional support. And in any event his request for support from Congress will force every member to be accountable, one way or the other, for what he does.”

But legal experts agree that a loss would weaken both Obama and the presidency’s historic monopoly on war-making authority, shifting the balance of power to Congress.

“A loss could set a precedent in which future presidents always have to ask for a resolution for any kind of military action,” said Stephen Griffin, a constitutional law professor and expert on war powers at Tulane University. “I think there’s a danger there of making it more likely that Congress will feel its oats and demand such resolutions in the future.”

Griffin says Republican defense hawks, who traditionally have favored broad presidential war powers, are not going be pleased with such a development. “But that’s hard to articulate now because so many House Republicans are either determined to humiliate Obama or they’re genuinely war-weary,” he said.

He noted that hawkish lawmakers such as Republican Sens. John McCain of Arizona and Lindsey Graham of South Carolina — both of whom have suggested they will oppose Obama’s proposed Syria resolution because it doesn’t go far enough — may find their preference for a strong executive swept away if Obama loses the authorization vote.

Short-Term Gain, Long-Term Problems
On the other hand, some legal experts regard Obama’s abrupt decision to seek congressional authorization for a limited attack on Syria as a short-term political masterstroke, even if he loses the vote.

Kal Raustiala, a law professor at UCLA and director of the school’s Burkle Center for International Relations, said the president could get political cover and possibly a face-saving out of the Syria crisis if Congress votes against authorizing force. Just as British Prime Minister David Cameron bowed to the will of parliament, Obama could do the same, he said.

Moreover, added Griffin, “a no vote protects him from any further charges that we should intervene if Assad keeps doing even worse things.”

That may provide Obama with some respite from the Syria crisis as he leaves on Tuesday for a G-20 summit in St. Petersburg, Russia, and as his administration and Congress gear up for battles this fall over the debt ceiling, federal spending, and immigration.

But in places like the Middle East and beyond, Obama and his successors can expect Congress to demand more say in war-related decisions.

“If Presidents have to worry about getting congressional approval for the use of force, it presents another possible brake point,” Spiro wrote in an email. “There are many balls in the air in a situations like this one; a requirement of congressional approval adds a big one. To the extent that congressional approval is a question mark in any particular situation, it adds to the “no” column in deciding whether to use force.”

He added, “In the past, presidents have had to worry about a lot of things when it comes to limited uses of force, but this hasn’t been one of them. This will lower the odds of US intervention in many situations.”

jonathanbroder@cqrollcall.com
Source: CQ News
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