To ask permission or not to ask permission… is that the question? Syria, separation of powers, and constitutional interpretation

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Since 2011, beginning with the commencement of the Arab Spring, Syria has been engulfed in protest and civil war.  An overwhelming number of Syrians—last estimated at over 100,000—have been killed in the conflict.

On August 21, 2013, a portion of Syria known as Ghouta fell under attack.  During the attack, rockets released a lethal nerve agent known as sarin.  Based on available intelligence, the White House later concluded “with high confidence” that the Syrian government was responsible for the attack.  Moreover, the White House report estimated that 1,429 individuals—nearly one-third of them children—were killed in the attack.

The events in Syria prompted President Obama to address the nation about potential United States military action against the Assad regime.  In his remarks to the nation on August 31, 2013, President Obama announced his intent to seek approval from Congress regarding future military action.  Despite his intention to seek approval, President Obama also noted his belief that he has “the authority to carry out this military action without specific congressional authorization.”

While the immediacy of potential military action has passed, there are lingering questions regarding the separation of powers in the United States government.

Recent events have rendered U.S. military action in Syria a less likely proposition.  Due to intense international pressure following the Ghouta attack, Syria has agreed to become a signatory to the Chemical Weapons Convention.  More importantly, on the heels of an agreement between Russia and the United States calling for destruction of chemical weapons in Syria, the United Nations Security Council passed a resolution also requiring disarmament.

While the immediacy of potential military action has passed, there are lingering questions regarding the separation of powers in the United States government.  Would President Obama legally have been required to receive congressional authorization prior to military action in Syria?  The answer to that question is not necessarily clear.

“The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities … are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.”

Congress derives its war powers from Article I, Section 8, Clause 11 of the United States Constitution: “[The Congress shall have Power…] [t]o declare War….”  Among the other war-related powers granted to Congress in Article I, Section 8 are the powers to raise and support an army, to provide and maintain a navy, and to make rules regulating those forces.

By contrast, the President traces his war powers to the commander-in-chief clause located in Article II, Section 2, Clause 1 of the Constitution: “The President shall be Commander in Chief of the Army and Navy of the United States, and of the militia of the several States, when called into the actual Service of the United States….”

In 1973, Congress adopted the War Powers Resolution, intended as a check on the President’s Commander-in-Chief powers:

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

The resolution requires the President to notify Congress within forty-eight hours of introducing armed forces into hostilities.  Where congressional authorization is not forthcoming, the resolution generally forbids armed forces from remaining in hostilities for more than sixty days.

There has never been a successful legal challenge of an alleged violation of the War Powers Resolution.

At the time the resolution was passed, President Nixon attempted to exercise his veto powers.  However, that attempt was overridden by two-thirds of Congress.  According to the Library of Congress, “U.S. Presidents have consistently taken the position that the War Powers Resolution is an unconstitutional infringement upon the power of the executive branch.”  Despite this belief, most Presidents have nevertheless attempted to comply with the Resolution’s requirements.  Even in the case of those Presidents who have arguably not complied, there has never been a successful legal challenge of an alleged violation.

When there is an imminent threat or national emergency, it is undisputed that the President has the power and authority to respond appropriately, even if it involves immediate military action.  This is a power expressly granted to the President by the War Powers Resolution.

That Congress would delegate this power to the President is unsurprising.  In times of national emergency, the President, as a unilateral source of power, is far more equipped to deal with crises.  The President has “energy” that Congress simply does not possess.  While the President can make a decision and act swiftly to quash a threat, the same decision would likely have the potential to deadlock Congress for hours, days, weeks, or even months.  The President has the unity to act on his own, while Congress must move as a collective body.

An issue arises, however, when there is no actual or imminent threat to the United States, yet the President plans to introduce American troops into hostilities without congressional authorization.  What are the President’s powers in those types of situations?

The correct answer is not abundantly clear, primarily because the issue is a matter of constitutional interpretation.

Although President Obama most recently stated that he did not actually need specific authorization from Congress in order to take military action in Syria, it appears that even he is not completely certain.  In 2007, responding to a question about Iran, then-Senator Obama stated that “[t]he 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.”

Applying President Obama’s 2007 rhetoric to the situation in Syria, it seems that Candidate Obama likely would not approve of President Obama taking unilateral military action in Syria.  Stopping atrocities such as the tragedy in Syria is a noble endeavor, and may well be justified on other grounds, such as humanitarian intervention; however, the events in Syria do not represent “an actual or imminent threat” to the United States.  President Obama’s varied statements are understandable, given the wide range of viewpoints on this issue and the political realities of the Presidency.  Importantly, President Obama’s stated position aligns with that of past Presidents.  The correct answer is not abundantly clear, however, primarily because it is a matter of constitutional interpretation.

“The President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest”

Further complicating President Obama’s stance on the issue is the Obama Administration’s decision to take military action in Libya in 2011.  President Obama neither sought nor received congressional approval of United States military involvement in Libya.  Following the involvement in Libya, the Attorney General’s Office concluded (pdf) that “the President had the constitutional authority to direct the use of force in Libya because he could reasonably determine that such use of force was in the national interest” (emphasis added).  The “national interest” justification comes neither from the Constitution nor from a statute passed by Congress; rather, the memorandum cites only previous opinions of the Attorney General’s Office that justified military force on that grounds.  The precedent established by former executive officials is plainly a part of the decision-making by the current administration.

Two of President Obama’s former defense secretaries, Robert Gates and Leon Panetta, recently commented on the issue in Syria.  Although they disagreed on the ultimate course of action, both agreed that President Obama would not need authorization from Congress in order to take military action.

Representatives from both sides of the aisle have not only expressed their opinions to the media, but have also notified President Obama directly.

Members of Congress have not been silent concerning their interpretation of President Obama’s responsibilities.  Rather than a run-of-the-mill partisan issue, the debate appears to become one between the branches: Congress against President instead of Democrat against Republican.

Representatives from both sides of the aisle have not only expressed their opinions to the media, but have also notified President Obama directly.  Representative Barbara Lee, a Democrat from California, wrote a letter to President Obama (pdf), in which she was joined by fifty-three other Democrats:

… Congress has the constitutional obligation and power to approve military force, even if the United States or its direct interests (such as embassies) have not been attacked or threatened with an attack.  As such, we strongly urge you to seek an affirmative decision of Congress prior to committing any U.S. military engagement to this complex crisis.

Likewise, Representative Scott Rigell, a Republican from Virginia, has penned a letter to President Obama (pdf), in which 116 other Congressional members joined:

While the Founders wisely gave the Office of the President the authority to act in emergencies, they foresaw the need to ensure public debate – and the active engagement of Congress – prior to committing U.S. military assets.  Engaging our military in Syria when no direct threat to the United States exists and without prior congressional authorization would violate the separation of powers that is clearly delineated in the Constitution.

Although general public opinion should not necessarily have any direct influence over the matter, it is worth noting that sixty-nine percent of respondents in a recent CNN poll (pdf) did not think it would be in the national interest of the United States to be involved in the conflict in Syria.  “We the people” elect our representatives to Congress so that they may stand in our place and represent our interests.  When Congress’ constitutional power is potentially undermined, however, the will of the public likely plays a diminished role.

There is also a case to be made in favor of an expansive view of the President’s war powers.

There is also a case to be made in favor of an expansive view of the President’s war powers.  One rationale is that the act of declaring war granted to Congress in Article I, Section 8 refers to a formality, separate from the President’s act of making war.  Under this interpretation, Congress’ responsibility is that of making a formal declaration after conflict has already begun that merely changes the status of the relationship between the United States and an opposing nation.

Another argument in favor of expansive Presidential war powers is that the Constitution grants Congress the “power of the purse.”  The Constitution gives Congress the exclusive power to raise and support an army and to provide and maintain a navy.  What Congress giveth, Congress can taketh away.  Proponents of expansive Presidential war powers may argue that the President was intended to have the power to command the military forces pursuant to Article II, Section 2, and that if Congress is unhappy with the President’s decision it may simply check the President’s power by defunding the military.  Of course, this assumes members of Congress would be willing to take the untenable position of blatantly undermining the President’s authority in the eyes of the global community (and in the eyes of the electorate), not to mention the politically-damaging act of potentially placing troops in harms’ way.

“The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

When the founding fathers descended on Philadelphia for the Constitutional Convention of 1787, they did so with the intent of establishing a Constitution for the newly formed United States that had rebelled from the harsh control of the monarch a decade earlier.  For obvious reasons, they did not necessarily want to replicate the oppression they had long experienced from the Crown.  But at the same time, they did not wish to repeat one of the many the mistakes of the Articles of Confederation and fail to provide for a chief executive.

Alexander Hamilton published Federalist Paper No. 69 in 1788, in which he contrasted the President’s commander-in-chief powers from those of the English king:

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

The first President of the United States, George Washington, was of a similar belief: “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

In a letter to Thomas Jefferson, James Madison observed that “[t]he Constitution supposes, what the History of all [governments] demonstrates, that the [Executive] is the branch of power most interested in war, [and] most prone to it.  It has accordingly with studied care, vested the question of war in the [Legislature].”

For as long as the United States has been a predominant player in the international community, Presidents, Congressmen, and constitutional experts have disagreed on the scope of the President’s war powers.

The scope of the President’s war powers was disputed long before the recent events in Syria, and it is not likely that this ongoing dispute will be resolved in the foreseeable future.  For as long as the United States has been a predominant player in the international community, Presidents, Congressmen, and constitutional experts have disagreed on the scope of the President’s war powers.  Given the complex nature of the issue and the various methods of constitutional interpretation, reasonable minds are free to disagree.  It appears that even President Obama—the chief executive of the world’s preeminent superpower and a former Constitutional law professor—has moved back and forth on the issue, demonstrating just how complicated separation of powers issues can be.