Barack Obama and the imperial Presidency

President Barack Obama and Secretary of State John Kerry have said that the President has authority to order an attack on Syria on his own authority.  They say he is merely consulting Congress as a favor, and would still be free to act if Congress refused to pass his resolution.

Really?

Here are the words of the United States Constitution, which Obama and Kerry swore an oath to uphold.

Article One, Section 8.  The Congress shall have power … …

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land or Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrection and repel Invasion; … …

Article Two, Section 2.  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; … …

The Founders limited the power of the President to wage war because they didn’t want the new nation to be governed like a European monarchy, where the king could go to war for personal reasons unrelated to the welfare of the people.

Time passed, and over the years Presidents expanded their power and stretched their authority.   In response, Congress in 1973 passed the War Powers Resolution.   It began as follows.

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 went on to state that in cases of dire emergency, the President could initiate military action, provided that (1) he report to Congress the necessity and Constitutional authority for such action, (2) he cease action after 60 days unless given specific congressional authorization and (3) he cease action immediately if Congress so resolves.

When President George W. Bush asked Congress for authority to use military force against Al Qaeda and to force Saddam Hussein to comply with U.N. resolutions on weapons of mass destruction, I thought these were justified grants of authority for specific purposes.  But the two resolutions by Congress were used by Presidents Bush and Obama as open-ended grants of power to use whatever force they thought necessary against hostile governments and individuals.  President Obama’s proposed Syria resolution is subject to being interpreted in this open-ended way.

The House of Representatives refused to vote authority for the Libyan intervention, but Obama went ahead anyway.  I hope Congress asserts its authority in this case and that the President is prudent enough to heed its words.

§§§

Click on The administration’s proposed AUMF on Syria is very broad for analysis of President Obama’s proposed resolution by Jack Goldsmith of Harvard Law School.

Click on Obama dips toe in Syrian Rubicon for analysis by M.K. Bhaddrakumar, a former Indian diplomat, for Asia Times.

Click on Obama’s Carte Blanche War Resolution and The AUMF Crescent for more analysis.

Click on Syria crisis: Obama has ‘right to strike’ regardless of vote, says Kerry in The Guardian.

Click on Congress vs. the president on war power for Glenn Greenwald’s report from 2011 on the House vote to deny President Obama authority to attack Libya.  I had forgotten about this.

Click on Barack Obama Q&A for the transcript of a 2007 interview with Senator Barack Obama on the Constitutional and legal limits on the powers of the President.

Click on War Powers Resolution for the complete text.

Click on Constitution of the United States for the complete text.

Click on Syria Resolution Hits Turbulence in Senate for an update from Talking Points Memo.

Click on Arm-Twisting Session in Senate Before Syria Strike Vote for an update by David Dayen for Naked Capitalism.

Tags: AUMF, Authorization to Use Military Force, Constitution, Declaration of war, Syria, Syria Intervention, War Powers Resolution