Balkinization  

Friday, August 30, 2013

The Constitutionality of the Syrian Intervention (Or: Why I am not a war powers hardliner)

Stephen Griffin

Let’s assume the Syrian intervention involves using bombs and cruise missiles against the Assad regime.  Now, I could pose the constitutional question this way: what does the Constitution have to say about President Obama’s proposed Syrian intervention?  But if I did, you would be misled, especially if you were a non-lawyer unfamiliar with war powers.  Because you would assume that I wouldn’t ask the question unless I had a well-developed set of materials, such as the constitutional text and lots of cases, to bring to bear in order to generate the answer.  In fact, the text is somewhat thin and everyone agrees the case law is almost nonexistent.  So we might start wondering how all of the constitutional experts opining on the intervention are so sure of their arguments.

War powers hardliners or “congressionalists,” think they know the answers to questions like the Syrian intervention. In fact, they regard such questions as easily answered.  Hardliners believe that Congress must approve any war, at least any “offensive” war, construed as any offensive military action whatsoever.  They also believe the commander in chief clause simply creates an office and not a substantive power and that the president’s power to lead or control foreign affairs is not founded on the Constitution but only on the statutory authority granted by Congress.

In the course of writing my book Long Wars and the Constitution I came to realize that the hardline position has many problems.  Some of these problems are directly relevant to evaluating the Syrian intervention, such as the idea that the president is limited to “defensive” action when acting unilaterally without the consent of Congress.  In this post, I will stick pretty close to the Syrian intervention because a full treatment of the flaws of the hardline position would try your patience.  But in brief: the distinction between “offensive” and “defensive” wars or military action is conceptually incoherent in light of our full experience since 1789.  Further, many commentators agree that the commander in chief clause is a substantive power and that the president is granted authority over foreign affairs not only by longstanding practice and the logic of how government institutions work, but also by the text of the Constitution itself.

 

 
The constitutional justification for unilateral action starts then with the wide discretion the president has over the conduct of foreign affairs.  Especially under what I term the “post-1945 constitutional order” presidents understand that they are chiefly responsible for advancing the foreign policy and defending the national security of the United States.  In fact, they appreciate that especially when something goes wrong, such as the 9/11 attacks, they will be held solely responsible by the American people.  This means presidents believe they must be in charge – power should follow responsibility or so they plausibly think.

The Constitution does not in literal terms get in any president’s way in this respect unless they want to start what the Office of Legal Counsel has termed a “war in the constitutional sense,” a war such as Vietnam, the Persian Gulf War of 1990-91, Afghanistan and Iraq.  In other words, the degree of congressional involvement that is required by the Constitution is related, sensibly enough, to what the president wants to do.  There is an important link in this respect between the purposes that animated the framers in the eighteenth century and the experience of our own time.  As the framers understood from their experience with the Revolutionary War, wars that summon the efforts of the nation as a whole absolutely require interbranch deliberation.  This is part of the thinking that went into the “declare war” clause – marking out wars as special, not any sort of military action.  By the way, don’t get too excited about OLC opinions – although I review all the opinions in Long Wars, let’s remember that it is ultimately the views of the president that count, not the lawyers.

If you are still bothered by the prospect of unilateral presidential action, I would encourage you to ask a question that is different from the one I started with.  How did presidents acquire the ability to act unilaterally in the first place?  Our first presidents had no such power and so the dispute over Obama’s proposed action could not occur in the early republic.  Of course, the practical capacity and resources to act unilaterally, to strike almost instantly anywhere in the world in service of America’s interests, was granted to multiple presidents over the decades since 1945 by multiple Congresses.  Who put the president in this position?  We all did and through the democratic process to boot.  In Long Wars, I argue that this change in capacity changed the “constitutional order,” the way the Constitution is implemented in the real world.

But can we take back this power?  Given Congress’ broad authority over the substance of the military, along with the “declare war” clause, of course we can. An analogy to the removal power may be helpful. Under a widely accepted (though not universally shared) understanding of the removal power, presidents have broad discretion to remove executive officials.  At the same time, however, Congress can set conditions by statute over the removal of any particular official.  So it is with presidential power and the use of force in foreign affairs.  The president has broad authority to act, but his authority can be limited through the exercise of Congress’ constitutional powers.  If Congress wants to update the War Powers Resolution (clearly constitutional on my account), that’s fine.  Such a reconsideration of the WPR is in fact long overdue.

So the problems Obama has with the Syrian intervention are primarily problems of policy and politics, not constitutional law.  The public is war-weary and skeptical, as Americans tend to be after major wars that do not work out as planned.  Major wars such as Afghanistan and Iraq always exact major costs of all kinds.  Minor military interventions, such as Obama’s previous foray into Libya, do not.  They therefore are unlikely to pose a significant danger to our system of separation of powers or, if you like, the contemporary constitutional order.

 

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