Posted by on September 03, 2013 in Blog

By Isaac Levey
Legal Fellow

President Obama made a surprise announcement Saturday that he will seek congressional authorization before using military force against the Syrian regime in response to President Bashar al-Assad’s use of chemical weapons last week. The announcement, in addition to raising serious questions of political strategy and military policy (which will be discussed by my excellent colleague Yasmine Taeb), has reignited an ancient legal debate far older than the American system of government, a question as old as law itself. It is a question of who makes the great decisions of national policy in a constitutional democracy, specifically: how should nations fight wars?

The Constitution, in Theory and in Practice

The United States Constitution provides that Congress, and Congress alone, can declare war, but it makes the President the Commander-in-Chief of the Armed Forces. As is almost always the case in our Government, the Framers imagined that Congress would make policy and the President would execute it. That may have been manageable in 1789, in a global system in which solemn, total wars were fought between nations, governments, and armies in uniform. Wars started and ended with formal, definite acts by both sides that everyone could see and point to – a declaration of war; a formal surrender; the signing of an armistice or peace treaty – and as a consequence people could always know whether their country was at war, and with whom. Today, when the United States faces military threats not associated with any state – and not even necessarily from one defined terrorist organization – the interplay between the Legislative and Executive Branches in defending the nation is much less clear.

Despite the distinction between starting a war (Congress’ job) and fighting it (the President’s), the Constitution says nothing about whether and when the President can ever use the military without congressional authorization; or whether Congress can authorize the use of military force without a declaration of total war. Nor is it clear whether Congress, over the President’s objection, can stop a war. An act repealing a declaration of war or rescinding an authorization to use force would have to be signed by the President, or passed by a two-thirds majority of each House over his veto. The only clear way for Congress to stop military action is its power of the purse: it can simply refuse to fund any military activities. This is a frustratingly blunt tool, and political considerations often make it simply impossible, however unpopular the war may be, for Congress to refuse to fund our troops in the field.

The United States has not been formally at war with any nation since the surrender of Japan in August 1945 marked the end of World War II. But in the almost seventy years since, we have militarily intervened in too many countries to count, and fought five large-scale wars against four different countries (Korea; Vietnam; Iraq; Afghanistan; and Iraq again). Some of those wars have involved fighting in other nations: the Vietnam War took us into Cambodia; the first Persian Gulf War involved fighting both in Iraq and Kuwait; and the anti-terrorism operations in Afghanistan have stretched at times into Pakistan. Were these interventions unconstitutional? Almost certainly not, because at least for the five major “wars” mentioned, Congress passed resolutions authorizing the President to use military force. It is generally understood, at least with regard to the more recent conflicts, that these resolutions were functionally and legally equivalent to declarations of total war. They allowed the President to use the extraordinary powers the Constitution confers on his office as Commander-in-Chief, even when the conflict does not involve another nation. Hence the Authorization for the Use of Military Force (AUMF), passed immediately after the September 11 attacks and still in effect, allows the President to use his war powers against al-Qaeda, the Taliban, their allies, and anyone else responsible for those atrocities.

The War Powers Resolution: (Un?)-Constitutional Uncertainty

In 1973 (during the height of controversy over Vietnam and Cambodia), Congress enacted the War Powers Resolution (WPR), the strongest check on executive power in this arena in the country’s history. It allows the President to use military force without prior authorization, but if he does, he must notify Congress almost immediately and explain his action. If Congress doesn’t authorize the action, within sixty days, the President must pull all forces out of hostilities (the President can extend this time by an additional thirty days if necessary for the safety of the military). In short, the WPR prohibits the President from using military force, without the consent of Congress, for more than ninety days. (Since the 2001 AUMF explicitly constitutes an authorization under the WPR, the ninety-day clock and the other limits of the Resolution are inapplicable to any action taken in the “war on terror.”)

The WPR’s requirements apply only to situations where our forces are introduced into “hostilities,” but it doesn’t say what that means. President Obama’s Justice Department argued in 2011 that the congressionally unauthorized intervention in Libya, even though lasting more than ninety days, didn’t violate the WPR because our forces weren’t engaged in “hostilities” as the Resolution uses that term. That argument can charitably be described as implausible – only a lawyer would say that a military force deliberately trying to kill people is not engaged in hostilities – but Libya wasn’t the first time Presidents have apparently disregarded the limits of the WPR. President Clinton did the same thing when he ordered air strikes against Serbia in 1999 over humanitarian atrocities in Kosovo.

The WPR was passed by the required two-thirds majority of each House of Congress after it was vetoed by President Richard Nixon, who argued that it infringed on the President’s powers as Commander-in-Chief. Despite significant differences in views of executive power, six of the seven Presidents since (four Republicans and two Democrats, with Jimmy Carter being the only exception) have argued at some point that the WPR is unconstitutional for the same reason. The courts probably will never answer that question (nor will they rule how the WPR defines “hostilities,”) because the doctrine of “standing” requires a person filing suit to show that the action being challenged has injured them in some way. Courts have reiterated over and over again that a citizen can't sue the government simply to make it follow the law; the plaintiff needs some personal stake in the case. In other words, even if the President violated the WPR, no one could get into court to stop him because no one, probably not even Members of Congress, would be injured by his refusal to follow it.

The WPR was an attempt to clarify the respective functions of the Legislative and Executive Branches in war, and in particular to insure that “the collective judgment of both Congress and the President will apply” when the U.S. takes military action. But in practice, it has simply created more confusion and constitutional uncertainty. Since the provision requiring the President to remove our forces from hostilities when Congress refuses to authorize them is usually ignored, and it is practically unenforceable in any event (whether constitutional or not), Congress is simply left where it started: if it truly wishes to stop the President from fighting a war, it must refuse to fund our military.

The Syria Dilemma

This brings us back to Syria. The President clearly has authority under the WPR – and most likely under the Constitution – to intervene in Syria without Congress’ assent. The type of intervention being discussed is limited in scope. It would most likely be a series of air strikes, and would not involve ground troops. Whether or not it is appropriate to use the American military for this sort of “slap on the wrist” – to simply admonish the Assad regime for its use of chemical weapons – the mission (whatever it is) is unlikely to take more than sixty days. Thus the President could act unilaterally without violating the WPR, and statements by politicians and journalists that the Resolution bars the President from attacking Syria without congressional approval are plainly incorrect. The President may act without congressional approval for sixty days.

Whether this balance conforms to the Constitution is debatable. The idea that Congress has to authorize all military action, at least in the absence of the most existential threat to the United States, is an appealing notion. But it is simply not consistent with the history of this Nation. American Presidents have authorized military action without Congress far back as 1801, the WPR permits them to do so expressly, and it is difficult to imagine how any court could ever hold to the contrary. To be sure, Congress, not the President, makes the laws in this country. But the President’s powers as Commander-in-Chief allow him to authorize limited military intervention, and nothing in the War Powers Resolution says otherwise.

It was a surprising decision for President Obama to seek authorization from Congress before going into Syria, and it was probably a good one. The spirit and purpose of the separation-of-powers doctrine pervading our Constitution should always encourage the Branches to consult and agree with each other on decisions as grave as the use of military force. But there is simply no support for the claim, a claim made recently by too many liberals and civil libertarians who should know better, that the President may never use military force abroad without the prior approval of Congress.

 

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