Legal experts disagree on whether and how President Obama has authority to attack Syria without Congress, but they do agree–along with military experts–that Obama is wrong both on law and on policy.
The Federalist Society is America’s premier legal forum for conservatives and libertarians, famous for hosting debates on the big issues of the day. They will typically have a legal giant from their own ranks take on some liberal lion from public life or an elite law school.
On Aug. 29, however, they had two of their own square off. Prof. John Yoo of the University of California-Berkley took on Prof. Saikrishna Prakash from the University of Virginia. Not only are they both conservatives, they are both former law clerks to Justice Clarence Thomas, the most conservative member of the Supreme Court and the most consistent advocate of originalism: the school of thought that every provision in every law–including the Constitution as the Supreme Law of the Land–must be interpreted in accordance with what the voters understood to be its original meaning.
This hour-long debate presented two opposing visions of war-making power under the U.S. Constitution, with Yoo arguing Obama has authority to act and Prakash holding he does not. Even Yoo, however, said that Obama’s position is otherwise wrong.
Yoo argued that the Constitution’s Commander-in-Chief Clause empowers the president to use force without seeking Congress’ approval. He said lawmakers have only two checks on the president’s military power: Congress can refuse the president the funds he needs to build a military or deny funds for specific military operations.
He later explained this was an almost-perfect check before World War II, since before then the nation did not maintain a large standing army, and, consequently, a president had to ask Congress to enlarge the military to facilitate fighting a full-scale war.
Yoo noted that Article I, Section 10 of the Constitution forbids states from waging war unless Congress first approves, unless a state is invaded and cannot wait for Congress. He explained that the Framers of the Constitution could have included that same language when describing the federal war-making power yet did not do so.
Yoo blamed Congress for this problem, saying Congress could design the military as primarily a defensive force to protect the homeland. Congress could also add language in its annual appropriations forbidding those funds from being spent on offensive military campaigns without express congressional approval. Congress chooses not to take this responsibility and instead gives the president a massive military without limitation and with the statutory authority to transfer funds between military accounts. This enables a president to pay for at least the first stages of a campaign without needing supplemental funding.
Yoo–who was a top legal advisor during the Bush years when the War on Terror was launched–believes that the presidency is designed b the Constitution to be secretive, fast, and decisive. Yoo argued this is exactly what is required in military matters, rather than long public debates before Congress.
Prakash disagreed. For more than a century prior to the adoption of the Constitution, the typical way a nation declared war was to launch a military campaign against them. Yet even though, as the commander in chief, the president could order his generals to take military action, the Framers included the Declare War Clause in the Constitution, providing that only Congress can declare war. This provision is included in Article I, Section 8, which lists the enumerated (i.e., specific) powers of Congress.
Prakash argued the Constitution uses a belt-and-suspenders approach when it comes to committing the United Stated to war. Under his theory–held by most conservatives–the double-protection here is that the House and Senate must authorize a war, and then the president must choose to exercise that authority by launching military operations.
Virtually everyone recognizes three exceptions to this general rule. The president may act to defend the nation against an actual or imminent attack on the American homeland or American citizens, or a similar dire threat to our national security. He may also retaliate if Americans are attacked. Additionally, the president may fulfill our clear treaty obligations. Such international obligations are either adopted through a treaty, which requires a two-thirds approval of the Senate, or an international executive agreement approved by a normal majority of both the House and Senate.
Prakash criticized Obama’s contention that he requires Congress’ approval to launch a war while asserting military campaigns like Libya in 2011 or Syria now are not wars, arguing it’s not a war if the enemy does not have a meaningful ability to fight back and place American lives at risk. Prakash called Obama’s argument “incoherent.”
Yoo agreed, calling Obama’s position “silly.” He claimed under Obama’s logic, dropping a nuke on Damascus would not be waging war, because no one would be able to shoot back since they would all be dead.
These legal experts also agree that no president has inherent authority to enforce “international norms”–whether for humanitarian relief or any other reason. The use of chemical weapons is horrible and reprehensible but carries no automatic authority to allow a president to wage war without Congress.
Nor does a president have carte blanche power to engage in a “police action.” If a foreign nation launched missiles into New York City to “punish” us or put a “shot across our bow,” we would regard it as an act of war and respond accordingly.
Nor does the president have additional authority under the War Powers Resolution of 1973. Commonly referred to as the War Powers Act, it is actually designed to limit presidential power, not expand it. Even if it tried to expand it, no federal statute can change the Constitution’s separation of powers. If it tried to confer additional power to the presidency, it would be unconstitutional.
Experts argue that not only is Obama wrong on the law, but he’s also wrong on policy. The U.S. military should not be sent to war without clear military objectives and articulating America’s national interest. There are none here, as Obama says that he wants to punish Assad and send a message but is not trying to remove him from power or announcing any other clear goals for such an attack.
Some are also criticizing Obama’s ineffective foreign diplomacy, with Britain and Germany refusing to support America while France’s support is now flagging. With each day that passes, Syrian President Bashar al-Assad is moving his weapons out of harm’s way, further decreasing the effectiveness of such a strike.
The situation with Syria has revived criticisms of Obama from 2008, when both Republicans and Democrats (such as Hillary Clinton) argued that Obama was too inexperienced and did not have a coherent philosophy on foreign policy or a firm grasp as to when and how to use military force. Critics now cite the current situation as proof that Obama’s Middle East policy is nonexistent, and that America looks weak, feckless, and indecisive to friends and foes alike.
America should only go to war in Syria if it’s in the vital national-security interests of the United States. Then the American people would support action, and Congress would respond to that support by voting to authorize war. If Congress refuses to authorize war, then they must also be ready to back up that decision.
For Obama to win the vote, he will have to make the case for war. Everyone seems to agree that President Obama has not succeeded on that front so far.
Breitbart News legal columnist Ken Klukowski is a fellow with the American Civil Rights Union and on faculty at Liberty University School of Law. Follow him on Twitter @kenklukowski.