Did Obama Need To Go To Congress?

Marty Lederman thinks “that President Obama’s decision to ask Congress for authorization for the use of force in Syria is to be commended, and welcomed”:

Presidents will certainly continue to assert the power to act unilaterally, subject to statutory and international law constraints.  But if and when a President wishes to act for a reason that has not previously been the basis for unilateral action (such as to degrade another nation’s ability to use certain weapons), and/or in a manner that violates a U.S. treaty obligation, past practice will support obtaining congressional authorization, even as the question of the President’s unilateral authority in such circumstances remains untested and unresolved.

I agree – and in fact, think this move could make this moment in US history a possibly pivotal one. Jack Goldsmith weighs in:

The constitutional problem with pure humanitarian interventions – and especially ones (like Kosovo and Syria) that lack Security Council cover, and thus that do not implicate the supportive Korean War precedent – is that Presidents cannot easily articulate a national interest to trigger the Commander in Chief’s authority that is not at the same time boundless.  President Obama, like President Clinton before him in Kosovo, had a hard time making that legal argument because it is in fact a hard argument to make.  That is one reason (among many others) why I think it was a good idea, from a domestic constitutional perspective, for the President in this context to seek congressional approval.

Andrew Rudalevige notes that, since the 1973 War Powers Resolution (WPR), “actions where prior congressional authority was not sought have some characteristics in common not present in the Syrian case”:

First, they have a rationale in self-defense, even imaginatively defined. In the WPR, presidents are given authority to use force when there is (1) a declaration of war; (2) a specific statutory authorization; or (3) ”a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Obviously options (1) and (2) can be based on any rationale, or none; but they do not – yet – apply to the Syrian situation. So one question facing Obama was whether (3) would cover sufficient ground. Some cases are easy, as with the (failed) rescue attempt of the American hostages in Iran in 1980 or the 1998 missile strikes after the African embassy bombings. In other cases presidents have been very generous in their interpretation of “attack upon the United States.”  The 1989 invasion of Panama was explained by President Bush as a response to General Manuel Noriega’s “reckless threats and attacks upon Americans in Panama [which] created an imminent danger to the 35,000 American citizens” there. The 1983 invasion of Grenada was publicly justified by President Reagan along similar lines: “first, and of overriding importance, to protect innocent lives,” and not just any lives: “American lives are at stake.” Still, it’s hard to stretch to this from the Syrian rationale, sold before today largely as punishment for the violation of international norms.

Second – in addition or instead—they had multilateral support, a cause of action endorsed by the international community, normally with a humanitarian component. Even Reagan in Grenada was careful to stress that the US had been invited to respond, that it was doing so in concert with other nations in the region (whose battleship inventory was perhaps a bit thin), and that ”this collective action has been forced on us by events that have no precedent in the eastern Caribbean and no place in any civilized society.” Likewise in Somalia (1992), Kosovo (1999), and Libya (2011), one could cite both humanitarian concerns, and treaty obligations (e.g. with the United Nations, NATO, or both). The WPR specifically rules out inferring authority to use force from such obligations (see Section 8(a)(2).)  Nonetheless, they muddy the legal waters.

In Syria, Obama has neither of these covering contexts to justify action.

Drum wishes that Obama had gotten authorization on all of his interventions abroad:

The real reason I’m disappointed is that Obama had a chance to set a new precedent in foreign policy and didn’t take it. Whatever else we liberals might think about George Bush’s military acumen, he left office having explicitly asked Congress to authorize both of his major military actions before he undertook them. If Obama had acknowledged the War Powers Act as good law, acknowledged Congress’s constitutional role in warmaking, and then voluntarily asked Congress for authorization of his proposed military operations in both Libya and Syria without being pressured into it, there’s a good chance that future presidents would feel bound to do the same. This is the way norms become settled, and this is a norm that would have truly changed Washington DC for the better.

But he didn’t do that, despite his apparent belief in 2007 that it was the right thing to do. It was a missed chance, and a disappointing one. I had hoped for better.

Me too. But that doesn’t mean sacrificing the opportunity now.