Sep 4

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The War Powers Resolution debate continues



Posted 7 months, 18 days ago.

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As the Obama administration and Congress debate about missile strikes against Syria, an argument that started in 2011 about Libya has life again: What are the military limits of a U.S. President?

obamadronesOn our blog last week, the University of Virginia’s Robert F. Turner wrote that, “The President clearly has the power to do [use military force] without first getting a formal Declaration of War from Congress or complying with the terms of the 1973 War Powers Resolution. While, for prudential reasons, it might be wise to get Congress on board, the Constitution doesn’t even require the President to ‘consult’ with Congress.”

On blogs of Lawfare and The Atlantic, however, leading voices from the right, such as Harvard Law School’s Jack Goldsmith, and from the left, Baltimore Law School’s Garrett Epps, beg to differ.

Back in 2011, President Obama decided to start military action in Libya and then justify his actions to Congress. This time, the process is reversed, leaving some serious questions about the President’s role in relation to the War Powers Resolution–an act most Presidents have ignored or worked around when deciding to use military force overseas.

Goldsmith writes that, while his view about presidential power to use military force abroad is generally as robust as that stated in the past by the Justice Department’s Office of Legal Counsel, for three reasons he believes that American military action in Syria without authorization by Congress will “push presidential war unilateralism beyond where it has gone before.”

Goldsmith argues there is no plausible argument based on American self-defense, since neither Americans nor their property are in danger in Syria; a unilateral strike would undermine rather than uphold the integrity of the U.N. Charter, so the argument for upholding the charter relied on for unilateral military actions by the United States since the Korean War doesn’t work; and the precedent of unilateral action in Kosovo doesn’t hold either, because there the United States could argue it was defending important security obligations under NATO, which it would not be in Syria.

Epps makes his own argument from a different perspective.

“I think it’s pretty clear that an American attack, without the sanction of the United Nations, the support of allies, the authorization of Congress — or, it must be said, much hope of meaningful success — would violate the Constitution,” he believes.

The President has the power, in Epps’ view, to defend the nation and Americans from attack and to respond to fast-moving events that threaten world order.

But, he adds, “U.S. citizens and military personnel are not under attack. It is not a split-second emergency. The President does not face a request from the Security Council, NATO, the Arab League or even the Organization of Eastern Caribbean States. This is precisely the kind of situation for which the Framers of our Constitution designed its division of authority between President and Congress. Sending our missiles against Syria is an act of war. If it is to be done, Congress, not the president, should approve.”

In Turner’s historical argument on Constitution Daily, he said, “the 1973 War Powers Resolution was an unconstitutional fraud.”

“Until this Administration, every President since Richard Nixon has viewed the War Powers Resolution as unconstitutional. By failing to follow that bipartisan tradition, President Obama has weakened his ability to defend his policies as lawful,” Turner said.

“As a policy matter, there are compelling arguments both for getting Congress formally on board first and against using military force to ‘punish’ Syrian President Bashar Aasad.  As a question of international law, the unilateral use of force without Security Council authorization to ‘punish’ even a notorious tyrant and war criminal finds little support.  But, pursuant to the Constitution, the President clearly has the power to do so,” he adds.

Don’t expect the debate to fade away, especially with the Obama administration facing an uphill battle to Congress to approve an attack on Syria without U.N. or NATO support.

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