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.
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.