The Future of Executive War Powers
The White House's decision to seek congressional approval to strike Syria is unlikely to mark a rollback of presidential authority regarding military force.
At the Diplomat, Robert Kelly wonders whether the U.S. decision to back down from attacking Syria may represent the beginning of a process of putting limits on presidential uses of military force. He contends that doing so would be a good thing both from a democratic point of view and for the content of American foreign policy (in that it would reduce the number of ill-considered wars that the country fights). In his words:
These moments are the return of democratic checks-and-balances in a competency where they have been dormant too long and have given us catastrophes like Vietnam, Iraq and a drone war that murders overseas Americans without due-process. These votes may be bad for this or that passing occupant of the West’s high offices, but there are healthy for our democracies and public control of government.
Kelly is no doubt right that as a general rule, when there is not a “clear and present national danger” that precludes legislative deliberation, Congress should vote before the country employs military force abroad. The question is whether the Syria episode actually presages a future in which this is more likely to happen consistently.
One thing that is for sure is that the choice to go to Congress on Syria was not motivated by a newfound appreciation within the executive branch for any legal limitations on its war-making powers. Indeed, in 2011 the administration undertook a larger military intervention in Libya than the one it advocated for Syria without any form of congressional approval. And in his Rose Garden speech announcing his decision to seek such approval on Syria, President Obama said, “I believe I have the authority to carry out this military action without specific congressional authorization.” It’s only because the proposed Syria intervention was so overwhelmingly unpopular among the American public, along with the “no” vote in the House of Commons in Britain, that the administration felt the need to try and get congressional buy-in.
Meanwhile, and conversely, the drone war that Kelly also decries rolls on, with substantial public support. In an April New York Times/CBS poll, fully 70 percent of respondents said that they favored “using unmanned aircraft or ‘drones’ to carry out bombing attacks against suspected terrorists in foreign countries.” Though the pace of drone strikes has decreased since its high a couple years ago, in 2013 the United States has still conducted forty-four strikes in Yemen and Pakistan—roughly one per week.
The campaign against Al Qaeda and its affiliates is legally justified by the 2001 Authorization for Use of Military Force (AUMF). This law was passed by Congress, but that was long enough ago and the AUMF has been stretched far enough that it’s fair to question whether the war that’s being conducted now is genuinely the same one that Congress authorized. Moreover, as Bobby Chesney argues at the New Republic, it may be that even if the AUMF were to expire, the targeted-killing campaign against terrorist organizations could continue with relatively few adjustments simply based on the president’s Article II powers as commander in chief. This isn’t likely to happen—the White House would certainly rather have some sort of congressional sanction underpinning its military actions—but if it did, as long as the conflict maintained high levels of public support, it’s hard to imagine that there would be a significant public outcry.
What this suggests is that the dynamic that restrained Obama from using force in Syria has much more to do with public attitudes about particular wars than it does their views about executive power. Looking at the record of the past half century, there’s not an obvious pattern regarding when presidents feel the need to go to Congress to authorize military action and when they don’t. It varies along with factors such as the extent of the proposed intervention, whether there’s sanction from some international body, whether there is a need for immediate action and the level of public support. In Syria, the proposed intervention was not as extensive as some that have occurred without congressional approval, such as Libya and Kosovo. But it was the apparent unpopularity of the cause (according to Gallup, it would have been more unpopular than any other conflict in recent memory) that offset this fact and convinced Obama to seek approval from Congress.
The legal position that Obama has articulated will certainly not restrain any future president—indeed, a future president could even use it to do exactly the opposite of what Obama did. As Jack Balkin wrote at the Atlantic, “The most important limit on presidential adventurism is political, not legal.” The Syria decision was made in a context in which the United States had already been at war for over a decade, in two major conflicts that had become increasingly unpopular. Moreover, many in both the public in Congress found the administration’s case for war in Syria to be weak. Neither of those things is guaranteed to be true the next time a president wants to use military force abroad. If a future president wants to go around Congress, the Syria episode will give his critics an additional data point to cite, but it will do little more than that. The bigger question will be how American public and elite opinion toward the use of force more generally evolves in the meantime.