President Barack Obama has announced that while he is now seeking to launch a limited military strike on Syria to punish dictator Bashar al-Assad’s recent apparent use of chemical weapons, he will seek Congress’ authorization before acting. Some observers — including PolicyMic’s own Brian Frydenborg — have lauded this move as a possible harbinger of a less imperial presidency. I, for one, am far less impressed. Merely seeking congressional authorization before ordering combat operations does not distinguish Obama from many of his predecessors. The truly critical legal matter at this point, in my view, is the nature of whatever authorization Congress gives the president, if it approves the intervention at all. If Congress passes a resolution that gives the president excessive discretion to initiate war on his own — such as the draft resolution the White House has already proposed — that measure will violate Article I, Section 8 of the Constitution, which gives Congress alone the authority to declare war.
To be sure, the question of whether Article I’s Declare War Clause really does require congressional consent for presidential warmaking is controversial. Yet the Clause’s ratification history indicates that the Framers of the Constitution intended to park the power to initiate war on Capitol Hill, not in the Oval Office (except in cases of sudden attacks). During the Constitutional Convention of 1787, Roger Sherman of Connecticut remarked, “The Executive should be able to repel and not to commence war” [emphasis added]. James Madison later opined that “the executive has no right, in any case, to decide the question, whether there is or is not cause for declaring war.” No less a proponent of broad executive power than Alexander Hamilton wrote in The Federalist #69 that the president’s powers are confined to “the direction of war when authorized or begun.” As University of San Diego law professor Michael D. Ramsey has noted, at least eight delegates to the Constitutional Convention of 1787 specifically stated that the president should not have substantial control over the decision to go to war.
The next question, then, is what kind of military action qualifies as a “war.” I am on the same page as George Mason University law professor Ilya Somin, who has acknowledged that “Some small-scale uses of force may not rise to the level of a war and therefore can be undertaken by the president alone under his authority as commander in chief of the armed forces.” Exactly where the line between limited military intervention and full-fledged war should be drawn is far from clear. However, as Professor Somin reasons, “a large-scale military action against a foreign government clearly qualifies as ‘war.’” If the looming attack on Syrian forces remains a short-lived series of air strikes from beginning to end, then President Obama probably does not need Congress’ say-so. Should the intervention veer off into a protracted campaign with broader objectives, however, Congress’ approval will become necessary.
Now we arrive at the heart of the matter: Congressional authorizations for the use of military force (or “AUMFs” for short) do not necessarily legitimize presidential warmaking as a constitutional matter. Depending on how they are worded and framed, they may still violate Article 1 of the Constitution. AUMFs that give the president excessive discretion to initiate war are unconstitutional delegations of Congress’ war power to the executive branch. This is based on the premise known as “nondelegation” doctrine, which holds that since the people have delegated to legislators the solemn responsibility to make laws, those representatives may not then abdicate that duty to other agencies.
Mind you, the Supreme Court largely eviscerated nondelegation doctrine almost a century ago, allowing Congress to set overall policy by statute and then let the executive branch implement it. Yet this “intelligible principle” doctrine needn’t and shouldn’t apply to the initiation of war. When Congress delegates its war power, it turns that power over to the president only, not to a whole administrative agency made up of trained professionals who can confer on important policy issues. When the president alone decides whether to go to war, there is no procedural check to minimize the risk of presidential errors — errors for which this and other nations must pay dearly in blood and treasure.
Given all these factors, the proposed draft resolution that the White House has released is frankly worrisome. Its language authorizing President Obama “to use the Armed Forces of the United States as he determines to be necessary and appropriate” [emphasis mine] makes it constitutionally suspect. Those words appear to authorize the president not to commence military operations, but to decide unilaterally whether and when to attack Syria at all. Such terms would amount to exactly the kind of delegation of Congress’ power to declare war that violates the Constitution’s separation of powers. It echoes the language of the 2002 Iraq War AUMF and the 1964 Tonkin Gulf Resolution, both of which also smacked of unconstitutional delegation, for the same reason.
Other problems with the draft resolution’s language abound. Professor Somin has already warned that this wording could prove to be a recipe for mission creep. I further note with particular concern the authorization for Obama to use the whole U.S. armed forces, rather than only air and naval forces. This would enable the president to put “boots on the ground” in Syria after all — despite his disavowal of that measure — should he deem that necessary in the future. This suggests a certain duplicity on the White House’s part. President Obama has asked Congress to authorize a limited strike, but has proposed statutory language that would enable him to escalate that campaign into a war by sending in ground troops. If the president is serious about keeping this intervention short and sweet, he has no business asking Congress for such a blank check.
I myself oppose intervening in Syria, for all the reasons that others have already stated. If Congress rejects that stance, however, it should at least take the president at his word and tailor its authorization narrowly. Obama says he has no intention of putting American boots on Syrian soil? Then authorize him to use air and naval forces — nothing more. The President wants to intervene in Syria only? Then limit the President’s authorized use of force to Syrian territory exclusively (which the draft resolution doesn’t do). It is high time that Congress got serious about restraining gung-ho Presidents from charging recklessly into battle.
Troublingly, Obama has not committed to respect Congress’ wishes in the event that it votes to deny him authorization. If he does order strikes on Syria in the teeth of that refusal, Congress must have the courage to cut off funding for the mission. Congress’ power of the purse is the only effective means of cabining executive discretion. Litigation will not work; if court cases like Massachusetts v. Laird and Doe v. Bush — in which the 1st Circuit Court of Appeals declined to find the Vietnam and Iraq Wars unconstitutional — are any indication, federal courts are unlikely to rein in bellicose presidents. Rather than uphold or invalidate war powers delegations outright, the courts simply sidestep the issue on procedural grounds. This is understandable; no judge wants to strike down a particular AUMF, only to bear the blame for any national security crisis that may hypothetically result.
Only Congress can show that the “imperial president” has no clothes, and it can only do so by withdrawing funding from unauthorized military deployments. (This is especially true given that Presidents often cite appropriations of funding for military campaigns as evidence of congressional assent.) So if Obama disingenuously attacks Syria in defiance of Congress’ will, or expands the campaign beyond what Congress does authorize, Congress must stand up and show who is really the boss, according to the Constitution. The American people’s representatives should heed the words of former Supreme Court Justice Robert Jackson: “We may say that power to legislate for emergencies belongs in the hands of Congress, but only Congress itself can prevent power from slipping through its fingers.”