With Congress highly unlikely to take the initiative, Barack Obama did something unexpected and good for American constitutionalism: he asked for congressional approval for military action against Syria. His recognition that warmaking is fundamentally a shared rather than a unilateral presidential power is most welcome. But this victory for a more rational policy process will ring hollow if Congress gives the Obama administration everything it's asking for.
Admittedly, not everyone sees Obama asking Congress to fulfill its constitutional responsibilities as a good thing. You may remember the second Bush administration from such events as ... oh, I don't know ... the several catastrophic foreign policy blunders that happened under its watch. Rather than permanently hiding their heads in shame, several architects of these military and human rights disasters are publicly complaining about Obama's turn from presidential unilateralism. John Yoo, the arbitrary torture advocate and producer of theories of executive power that are the antithesis of scholarship, is very upset:
But the reasons why the Framers did not lodge the war power solely with Congress point to the pitfalls of this approach. Legislatures are slow — Congress will not vote on the authorization until the second week of September. They are fractious — even if a strike is in the national interest, the political difficulties of assembling majorities in both houses at the same time are always significant. They do not act with unity, secrecy, and speed. It seems likely that Assad will learn everything he needs to know about our tactics, strategy, and political will from a lengthy legislative debate.
First, note the classic Yoovian fancy shuffling, making a modest and unexceptionable claim ("the Framers did not lodge the war power solely with Congress") to advance a radical and implausible theory (the executive branch can unilaterally use military force in non-emergency circumstances.) The rest of the paragraph consists of recycled Hamilton that is not, as far as it goes, wrong. It remains true that "[d]ecision, activity, secrecy, and despatch will generally characterize the proceedings" of the executive branch much more than Congress.
The problem with Yoo's argument lies in the assumption that "unity, secrecy, and speed" are inherently good things when it comes to military policy. It is true that these are desirable qualities when it comes to genuine military emergencies, but this has nothing to do with Syria, that does not pose any substantial threat to American security interest. The example of the Bush administration, meanwhile, is a grim reminder of the downsides of unity, secrecy and speed—when military decisions do not have to be adequately defended it is likely to result in exaggerated threats and minimized costs with potentially awful consequences. It a political context in which getting a Deputy Secretary of Agriculture confirmed requires extensive congressional oversight, the decision to go to war merits at least as much caution and power-sharing.
Congress does not really take its responsibilities seriously, however, if it merely rubber stamps the open-ended authority the Obama administration is asking for. As the Atlantic's Garance Franke-Ruta observes, a broad resolution combined with the necessity of maintaining support from congressional Republicans could actually result in more extensive military action than would have resulted from unilateral presidential action. While in general shared warmaking powers are preferable to unilateral ones, the former hardly guarantee good outcomes.
My preferred response by Congress as of now would be that it reject the administration's request. To put it bluntly, the case for military action against Syria has not been effectively made. It's hard to argue that the United States would be standing up for worldwide norms against chemical weapons given the lack of international support—even from America's heartiest allies. With the Republican leadership in Congress coming out in favor of authorization, however, this is probably unlikely to happen.
If Congress is going to delegate some authority to the executive branch, it should at least be the narrower version some senators are proposing than the blank check the administration is seeking. There is a major disconnect between the very limited response the administration is advocating publicly and the open-ended AUMF it has requested. Congress should ensure that any authorization is narrowly tailored to the means the Obama administration claims it intends to use. It is particularly important that any authorization exclude the use of ground forces. If the administration wants to escalate beyond what it claims to be necessary, it should go back to Congress again.
Once enacted, authorizations to use military force are never construed narrowly by the White House. Congress should take its authority seriously and either reject the request to use forces or authorize only very limited military strikes. The Obama administration claims it isn't seeking a protracted military conflict with the goal of regime change—like the one that produced the disaster in Iraq. Congress should hold him to that. And if it gives the president broad authority, it can't (as some Democratic members of Congress tried to do after voting for an AUMF everybody knew was an invitation to go to war) wash its hands of responsibility for what happens next.
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