On Tuesday night, President Obama asked Congress to delay a vote authorizing military action against Syria. During the same speech, however, he reserved what he claims is his right as commander-in-chief to act independently if Congress fails to go along with his proposals.

Sen. Bob Corker, the senior Republican on the Foreign Relations Committee, earlier said that members of the administration would be “far better off if they seek authorization based upon our national interests, which would provide the kind of public debate and legitimacy that can only come from Congress.”

Better off? A unique legitimacy coming only from Congressional approval? Is that just a helpful suggestion to the president or a claim of actual authority?

Let’s all hope for diplomatic solutions with the Assad regime. Let’s hope for consensus at home. But let’s also hope for thirty-hour work weeks, traffic-free commutes, and calorie-free cheese. Then, let’s talk about who gets to decide where American forces go when push comes to shove….

First, let’s look to the Constitution. Our founding document gives Congress the power to declare war in Article I, Section 8. Article II, Section 2 provides that the president is commander-in-chief of the armed forces. The text of the Constitution itself provides little further guidance about how exactly these two powers interact. So much for bare textualism.

History helps fill in the picture a bit. Notably, the United States has conducted military hostilities abroad more than 100 times in its history, but has only declared war in five situations — the War of 1812, the Mexican-American War, the Spanish-American War, and World Wars I and II. Even in instances such as the 2003 Iraq War, where Congress granted legislative authorization, Congress never declared war. This historical reality alone hints strongly that we either have an abysmal track record of infidelity to our Constitution (always possible, granted) or “declare war” does not mean what you might think it means.

When the framers drafted the Constitution, they rejected the diffuse power structure of the Articles of Confederation and took steps to consolidate authority. This, in part, recognized the need for a nimble executive who could act quickly and decisively in ways that neither Congress nor state governments could. Nowhere is this executive power so vital as military involvement in foreign affairs.

Moreover, the framers of the Constitution likely appreciated the difference between “declaring war” and engaging in military hostilities. In the 17th and 18th centuries, declarations of war served primarily as formal statements about the diplomatic relationship between nations, not as indications of whether boots were on the ground or swords were drawn. There’s good historical reason to think that, though Alexander Hamilton and his ilk were wary of too much power vested in a monarch, they acknowledged the need for a strong commander-in-chief capable of directing military action without first seeking a Congressional declaration of war.

In 1973, Congress passed the War Powers Resolution. While the WPR supposedly offers further guidance about the interplay between the legislative and executive branches, it may blur the lines of the relationship further. President Nixon vetoed the measure, though Congress later overrode his decision. No president since him has acknowledged the constitutionality of the WPR, though most have played along with its substance.

At the start of the WPR, in 50 U.S.C. § 1541, Congress recognizes

“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.”

In 50 U.S.C. § 1542, the WPR further provides:

“The President in every possible instance shall consult with Congress before introducing United States Armed Forces into hostilities or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and after every such introduction shall consult regularly with the Congress until United States Armed Forces are no longer engaged in hostilities or have been removed from such situations.”

President Obama joined his Republican and Democratic predecessors by carefully declining to acknowledge the binding authority of the WPR. He may have been politically shrewd to invite Congress to debate a Syrian strike. He is surely wiser still to exhaust diplomatic options before proceeding. But what if he acts without Congressional approval or refuses to comply with all of the reporting procedures of the WPR?

That’s no mere hypothetical. In 1999, during U.S. and NATO air attacks in Yugoslavia, members of Congress led by Tom Campbell of California sued President Clinton over his failure to comply with the specific requirements of the WPR. In Campbell v. Clinton, a panel of the D.C. Circuit ruled that members of Congress did not have standing to challenge violations of the War Powers Resolution.

This leaves us in the awkward position of knowing that, even if the War Powers Resolution is not itself unconstitutional: (a) the WPR grants the president the authority to act militarily without the support of Congress, subject to certain limitations; (b) even if the president does act beyond the scope of authority granted him by the WPR, Congress has limited options in response; and (c) challenging the president’s actions in federal court is not among those options. Congress retains legislative remedies, including the power to defund military actions with which it disagrees.

This brings us back to the current situation with Syria. Hawks and doves alike are ruffling their feathers, albeit in somewhat unusual ways, with many Democrats calling for armed aggression and many Republicans calling for peaceful restraint. Political judgments about the prudence of military assault are one thing. I’ve got mine. Likely you’ve got yours. However, my opposition to armed action need not be cloaked in claims about lack of presidential power.

Just as one need not support the gassing of babies in order to oppose military intervention against the Assad regime, one need not support President Obama’s particular choice to lead us into Syria in order to support the President’s authority to make that choice. There is an important difference between recognizing presidential authority to act militarily without Congressional approval and supporting his exercise of that authority in these circumstances. In this case, President Obama’s got a right to be wrong.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She will be working at the Center for Legal Pedagogy at Texas Southern University during the 2013-2014 academic year. She looks forward to a career of teaching and writing about, but never practicing, law. You can reach her at [email protected]


comments sponsored by

19 comments (hidden for your protection) Show all comments