Syria Request Puts Congress — and White House — in a Bind

President Barack Obama, joined by Congressional leaders, speaks to the media in the Cabinet Room of the White House in Washington, Tuesday, Sept. 3, 2013, prior to a meeting with members of Congress to discuss the situation in Syria. From left are, National Security Adviser Susan Rice, the president, House Speaker John Boehner of Ohio, and House Minority Leader Nancy Pelosi of Calif.
National Journal
Sara Sorcher
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Sara Sorcher
Sept. 8, 2013, 8 a.m.

Both the White House and Con­gress are on treach­er­ous turf as law­makers get ready to vote on wheth­er to mount a mil­it­ary strike against Syr­ia, but many ana­lysts say the ex­ec­ut­ive branch faces the biggest risks — both now and in the fu­ture.

Leg­al ex­perts say the vote on a res­ol­u­tion — which is by no means cer­tain to pass — may set a new pre­ced­ent for pres­id­en­tial de­cision-mak­ing in fu­ture con­flicts, and could leave Pres­id­ent Obama with no good op­tions in Syr­ia if he does not get the per­mis­sion he wants.

“This could set a pre­ced­ent that con­strains fu­ture pres­id­ents,” Temple Uni­versity in­ter­na­tion­al law pro­fess­or Peter Spiro said. “It will make it harder for a pres­id­ent to go it alone in the fu­ture.”

If the pres­id­ent uses force des­pite Con­gress’s op­pos­i­tion, and in the face of polls show­ing wide­spread pub­lic res­ist­ance to mil­it­ary ac­tion in Syr­ia, Spiro said, “there’s go­ing to be a real out­cry that will have been mag­ni­fied by go­ing to Con­gress.”

There also could be leg­al con­sequences if Obama acts in de­fi­ance of law­makers. “I do not be­lieve the pres­id­ent would choose to pro­voke a con­sti­tu­tion­al crisis by ig­nor­ing the will of Con­gress,” said Mi­chael Glen­non, in­ter­na­tion­al law pro­fess­or at Tufts Uni­versity’s Fletch­er School of Law and Dip­lomacy.

In re­cent dec­ades, pres­id­ents have as­ser­ted sig­ni­fic­ant power to launch lim­ited mil­it­ary strikes without au­thor­iz­a­tion from the le­gis­lat­ive branch. Obama him­self ap­proved strikes in Libya to sup­port rebels fight­ing to de­pose Muam­mar el-Qad­dafi. And he used Con­gress’s 2001 au­thor­iz­a­tion for mil­it­ary force after the Sept. 11 at­tacks to ex­pand a cov­ert drone pro­gram to kill those his ad­min­is­tra­tion deems en­emy com­batants, in­clud­ing Amer­ic­an cit­izens.

Con­gress has of­ten lacked the will or the abil­ity to push back against in­de­pend­ent ac­tion by the pres­id­ent.

The con­sti­tu­tion­al pro­vi­sion that Con­gress shall have the power to de­clare war is “largely a nullity,” said former Rep. Lee Hamilton, D-Ind., who chaired the House For­eign Af­fairs Com­mit­tee and now dir­ects In­di­ana Uni­versity’s Cen­ter on Con­gress. Law­makers have not in­voked that power since World War II.

Syr­ia may provide an op­por­tun­ity for Con­gress to step up to their “con­sti­tu­tion­al re­spons­ib­il­it­ies” after be­ing vir­tu­ally “ab­sent” in over­sight of drones and si­lent as the Na­tion­al Se­cur­ity Agency ex­pan­ded its sur­veil­lance and mon­it­or­ing, Hamilton said.

But as Spiro noted: “It’s tough for col­lect­ive bod­ies to get their act to­geth­er “¦ and that’s why his­tor­ic­ally, Con­gress has looked tooth­less.”

This is the in­her­ent prob­lem with pres­id­ents seek­ing con­gres­sion­al ap­prov­al after they have already deemed mil­it­ary ac­tion in the na­tion­al in­terest, es­pe­cially in an era where everything from de­fi­cit re­duc­tion to im­mig­ra­tion causes grid­lock and when de­cisions must be made quickly.

Obama strongly im­plied he could act alone last week. “I al­ways re­serve the right and re­spons­ib­il­ity to act on be­half of Amer­ica’s na­tion­al se­cur­ity,” the pres­id­ent said. This in­sist­ence, ac­cord­ing to Columbia Uni­versity na­tion­al se­cur­ity law pro­fess­or Mat­thew Wax­man, is to avoid cre­at­ing the lim­it­a­tions Spiro fears.

“By ar­guing that leg­ally he could go ahead without Con­gress, [Obama] con­tin­ues to plant the flag for a broad and as­sert­ive ex­ec­ut­ive-branch au­thor­ity,” Wax­man said. “Had he not said that, and im­plied that Con­gress [grant­ing] au­thor­ity was ne­ces­sary, that would not ne­ces­sar­ily have bound a fu­ture pres­id­ent, but it would have cast more doubt on his broad uni­lat­er­al powers to launch sim­il­ar strikes.”

A big ques­tion re­mains as to how far Con­gress, if it passes any­thing, will go to de­lin­eate the para­met­ers of a strike and how much it will leave to Obama. A res­ol­u­tion will be a tough vote for many law­makers, who will have to an­swer for it back home in their dis­tricts — and in their reelec­tion cam­paigns.

“Mem­bers don’t like cast­ing votes like that, wheth­er the votes are about drone strikes or Syr­ia or cy­ber­war or any­thing else that could cause con­stitu­ents to vote against them,” Glen­non said. “Their whole in­cent­ive is to seek cred­it and avoid blame.”

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