As President Obama prepares to bypass Congress and take the United States into war in Syria, it is worth looking at the constitutional underpinnings of President Obama’s position that he doesn’t need congressional authorization for his planned adventure in the Middle East.
Setting aside the fact that Obama is contradicting his own interpretation of the war powers clause of the Constitution that he offered in an interview that was published in The Boston Globe on Dec. 20, 2007:
“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," said then-Senator and former constitutional law professor Barack Obama.
Now that he is President, however, and it suits his still murky purposes to intervene in Syria, President Obama is relying on the opinion of his White House lawyers and a Bill Clinton-style parsing of the concept of “hostilities.”
Back when Obama decided to intervene in the Libyan civil war, the White House Office of Legal Counsel concluded that:
“…President Obama could rely on his constitutional power to safeguard the national interest by directing the anticipated military operations in Libya – which were limited in their nature, scope and duration – without prior congressional authorization.”
As Representative Scott Rigell (VA- 2) put it in an August 28 letter signed by a bipartisan group of over 100 members of Congress knocking down Obama's claim that the United States was not “engaged in hostilities” in Libya, Rigell and his House colleagues asked, “If the use of 221 Tomahawk cruise missiles, 704 Joint Direct Attack Munitions, and 42 Predator Hellfire missiles expended in Libya does not constitute ‘hostilities,’ what does?”
The letter signed by this bipartisan group makes the point that intervention in Syria, like Obama’s unauthorized intervention in Libya, is not only unconstitutional, but that the President’s argument asserting the power to intervene is (without using the word) disingenuous in the extreme. .” (you can read the entire letter here courtesy of our friends at CNSNews.com)
The letter to President Obama is an excellent and concise statement of the separation of powers as it relates to the congressional authority to authorize – or not authorize – military action, but we think Congressman Rigell made an even better argument in a great interview he gave to Terence P. Jeffrey of CNSNews.com.
“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,” Rigell wrote in the letter. “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.”
Not only does Obama’s planned military intervention in Syria contradict Obama’s own position on the separation of powers when he was in the Senate, it contradicts the view of George Washington, who was actually at the Constitutional Convention and later, while serving as President, had to operate under the newly adopted Constitution.
As Terence P. Jeffrey of CNS noted in his interview with Congressman Rigell, “The draft language that the Constitutional Convention discussed on Aug. 17, 1787, according to notes that were taken that day by James Madison, gave Congress the power to ‘make war.’ Madison himself and Elbridge Gerry of Massachusetts ‘moved to insert 'declare,' striking out 'make' war; leaving to the Executive the power to repel sudden attacks.’ The convention accepted this change and the argument for it.”
George Washington, who presided over the Constitutional Convention, acted on this understanding of the war power when he was president. In 1793, Washington wrote: "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."
Rigell, who serves on the House Armed Services Committee, and served six years in the Marine Corps Reserve, said George Washington's understanding of the war power is reflected in the letter he and his colleagues have sent to the president.
Of course, the most authoritative way to stop Obama dead in his tracks would be for Speaker of the House John Boehner to call the House back into session to exercise Congress’s constitutional authority to authorize – or not authorize – the use of military force in Syria. But the likelihood of that is beginning to look pretty remote.
Unless Speaker Boehner calls the House back into session to prevent President Obama from usurping Congress’s constitutional authority to authorize – or not authorize – the use of military force in Syria, Speaker Boehner’s most historic act may be that he sat by and did nothing while an understanding of the Constitution that has stood since George Washington was President was vaporized by the cruise missiles Barack Obama is preparing to rain down on Syria.