White House

Obama's Syria Maneuver and the Limits of War Powers


President Barack Obama meets with his National Security Staff to discuss the situation in Syria, Aug. 30, 2013

Photograph by Pete Souza/Official White House Photo

President Barack Obama meets with his National Security Staff to discuss the situation in Syria, Aug. 30, 2013

President Barack Obama is spending much of his Labor Day weekend lobbying Congress for authorization to take military action against the Syrian government. By most accounts, he made his surprise decision to seek lawmakers’ backing for political reasons—above all, the need to rally a war-weary electorate and insulate himself from Republican sniping if he unilaterally ordered a punitive strike against the Syrian regime that didn’t work as planned.
 
It may not have been prominent in the president’s calculus, but there’s another very good reason to go to Congress: respecting the (admittedly vague) constitutional limits on the commander-in-chief’s war power. A former constitutional law professor at the University of Chicago, Obama described those limits during his first run for the White House. “The president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation,” Obama said in an interview with the Boston Globe in 2007. “As commander-in-chief, the president does have a duty to protect and defend the United States. In instances of self-defense, the president would be within his constitutional authority to act before advising Congress or seeking its consent,” he added.
 
By Obama’s version of the constitutional standard, the proposed bombing or missile attack on Syria in response to that nation’s use of chemical weapons against its own people would require congressional approval, according to Jack Goldsmith, a professor of law at Harvard who specializes in national security. As Goldsmith cogently explained in a recent post on the Lawfare blog: In Syria, “neither U.S. persons nor property are at stake, and no plausible self-defense rationale exists.” Goldsmith, who served as a senior Justice Department official during the George W. Bush administration, generally has an expansive view of presidential power to use military force abroad without congressional authorization. About Obama’s current dilemma, however, he posed these sensible questions:

‘Since U.S. intervention in Syria portends many foreseeably bad consequences, and because there is so little support in the nation for this intervention, why not get Congress on board—not just to legitimate the action, but also to spread political risk?  Why exacerbate the growing perception—justified or not—of a presidency indifferent to legal constraints?  Why not follow the example of George H.W. Bush, who sought and received congressional authorization for the 1991 invasion of Iraq, or George W. Bush, who did the same for the 2003 invasion of Iraq?”

Obama’s decision to get congressional authorization has been interpreted by some analysts, including our Bloomberg News colleagues Michael Tackett and Mike Dorning, as marking “a rare moment in the last half century when a president unilaterally decided to give some power back to another government branch.” That may turn out to be correct. In the long run, though, a willingness to defer to lawmakers on Syria could actually enhance Obama’s strength, rather than weaken him.

“It’s quite uncertain what a military strike is going to produce,” Robert Dallek, a presidential historian, told Bloomberg News. “He really shouldn’t go it alone. It’s wise to bring Congress into it. It gets him much more of a broad consensus.”

Barrett_190
Barrett is an assistant managing editor and senior writer at Bloomberg Businessweek. His new book, Law of the Jungle, which tells the story of the Chevron oil pollution case in Ecuador, will be published by Crown in September 2014.

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