Balkinization  

Sunday, September 01, 2013

Obama's Big Decision on Syria: Untangling the Constitutional and Political Strands

Stephen Griffin

President Obama’s decision to ask for a congressional authorization for his proposed strike at Syria is both consistent and inconsistent with past constitutional and political practice.   I should note that I am comparing his decision to those of presidents since 1945, which, as I detail in my book Long Wars and the Constitution, is the most appropriate baseline for comparison.  Since Truman’s much criticized decision not to ask for a congressional authorization for the Korean War, presidents have generally asked for authorizations for major military operations (or, as I argue in the book, “wars”), but have not usually sought prior approval for minor interventions or substantial covert operations, even those involving combat and ground troops.  So you may not remember the authorizations for Johnson’s 1965 invasion of the Dominican Republic, Reagan’s 1983 invasion of Grenada, or George H.W. Bush’s invasion of Panama – because there weren’t any!  Exceptions?  Kennedy readied an invasion force in the 1962 Cuban missile crisis and did not intend to obtain an authorization for D-day style landings involving 100,000 troops.  He consulted only with the congressional leadership (who generally wanted to invade!)  Yet Kennedy also probably regarded invasion as a terrible risk that had the status of an ultimate last resort rather than a reasonable alternative that he was eager to employ.

We could talk about Obama’s decision to ask for a congressional authorization in a post-Cold War context, but I suspect it is more reasonable to update the context to that of post-Iraq.  His judgment seems to be that in this uncertain war-weary time and lacking international support, he should go to Congress for a big vote over what will probably be, in historical terms, a minor military air operation.  This is indeed something new and inconsistent with past presidential practice.  However, note Obama’s statement.  Consistent with the practice of all post-1945 presidents, he claims that he has the authority under the Constitution to make this decision by himself.  As a legal matter, this makes the authorization advisory only from the perspective of the executive branch.  Congress may be expected to take the opposite view.  If Obama were to go ahead after a negative vote, he would be in some constitutional jeopardy, possibly impeachment territory.  Let’s note that this is not a hypothetical possibility.  Bush I was willing to run this risk if the congressional vote on the 1991 Persian Gulf War had gone the other way.  Yet Obama is likely to comply with whatever judgment Congress makes on political grounds.

 
The more important political inconsistency with past practice is that presidents generally ask for authorizations only in circumstances where they are reasonably certain they will prevail.  Bush’s decision to ask for an authorization for the Persian Gulf War might be an outlier here.  Yet prior to this decision, the administration had gotten its lobbying act together by winning the support of the Security Council and getting its message out more effectively.  So Bush could assure himself of at least even odds.  I don’t see that here.  As detailed in various news reports, Obama has his reasons for going to Congress, but the political atmosphere is far from friendly.  Historical experience has been that presidents never benefit from losing votes.  Perhaps Obama, arguably an avid student of the “long game,” sees something here that the rest of us do not.

Legal analysts are discussing what kind of “precedent” Obama will set.  In Long Wars, I detail why it is a bad idea to conceptualize the executive-legislative relationship as if events such as the Libyan intervention were akin to common law decisions.  For this post, however, I’ll assume that talk of precedent makes sense.  So let’s keep in mind that the “precedent” set will depend just as much on how well Congress deliberates as on what Obama has done so far.  This is why I don’t regard the “Kosovo precedent,” whatever it may be, as very useful.  Congress wasn’t willing to back Clinton’s air campaign in Kosovo in 1999, but it was hardly in the best frame of mind to rationally consider a complex foreign policy matter in the wake of the Clinton impeachment.  Believe it or not, there are scholarly accounts of the Kosovo campaign that do not even mention the impeachment, a slightly more important constitutional event that was occurring at roughly the same time.  All the evidence that has accumulated since shows that Republican members of Congress especially were overwhelmed by their personal hatred (or, if you like, justifiable contempt) toward Clinton which clearly impaired their ability to deliberate in a rational way.  Thus Congress took a series of confusing votes on the campaign that never amounted to anything as far as a legal precedent.

In Long Wars, I argue that what matters about congressional authorizations is that they increase the probability the executive branch will get its ducks in row as to the rationale for the proposed operation.  Genuine interbranch deliberation forces the executive branch to think the matter through.  But the quality of deliberation in Congress matters as well, although from a historical point of view not as much as you might think.  In any case, any “precedent” set here will depend also on Congress’ willingness to deliberate.  Does anyone really believe that a Congress (especially a House of Representatives) that uses the debt ceiling as a bargaining chip for whether the government will be allowed to operate at all constitutes a responsible partner for the president on foreign policy?  And if the answer to this question is no, what sort of valid legal precedent can be set with one of the institutions responsible for making the decision abdicates any reasonable notion of deliberation?  In other words, no precedent is set (should be set) unless both sides fulfill their responsibility under the Constitution.  If they do, this creates a virtuous “cycle of accountability,” as I argue in Long Wars.

 

 

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