an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I have a somewhat different view than Sandy about whether Obama's request to Congress constitutes any sort of gamble. As I explain in more detail over at the Atlantic, if Congress doesn't approve, Obama will simply accede. For reasons I explain in the Atlantic piece, this will have relatively little effect on America's reputation abroad. World leaders say provocative things all the time and then just ignore them. Obama is no different.
There will be few consequences domestically either. Acceding to Congress will not weaken Obama with either party. He is in his second term, so he never has to face election. The Republicans couldn't be any more uncooperative than they already are, and the Democrats have no interest in undermining a president of their own party who actually asked Congress for permission to engage in a military strike. And since the public doesn't really want an attack, not acting is unlikely to lose the Democrats many seats in Congress in 2014.
Moreover, if Congress does vote authorization, Obama-- and future presidents-- will be able to pocket yet another AMUF. Sandy and I have pointed out in our work on constitutional crisis and dictatorship that in the American system, presidents get the most power not from acting unilaterally, but from aggressively interpreting previous congressional authorizations. The proposed AUMF that Obama has sent Congress is quite broad, and has no temporal or geographical limits. It doesn't even prevent the use of ground troops. No matter what Obama decides to do, I'm sure he would be delighted to get such an authorization for future use.
Finally, the elephant in the room is that even if Congress authorizes Obama's strike on Syria, it will still be in violation of the United Nations Charter. The war will still be illegal under international law.
Under the U.N. Charter, it is illegal for member states to attack each other because they claim another state is violating international law unless they are acting in self-defense or unless they are authorized to do so by a Security Council resolution. There is no such resolution with respect to Syria. The whole point of the Charter is to keep (for example) Russia from attacking (for example) Israel because Russia claims that Israel is violating international law. What goes for Russia attacking Israel also goes for the United States attacking Syria.
This story is being under-reported in the press. Imagine a New York Times headline that read:
Obama seeks to violate United Nations Charter: Asks Congress's Blessing.
But that is exactly what is happening. Obama may say that he is just trying to enforce international norms, but he is doing it by violating article 2(4) of the United Nations Charter. To invoke a metaphor from another war, he is destroying the village in order to save it.
To be sure, most members of Congress don't care very much about international law. But this is the real precedent that they would be creating by approving this ill-advised strike. Posted
by JB [link]