If Congress won’t punish Obama for defying it on Syria, they should refuse to vote

posted at 11:21 am on September 5, 2013 by Allahpundit

A thought while we wait for the next breathless whip count from the House: What’s the point of voting on Syria if O’s free to disregard the result? Congress isn’t an advisory body like the National Security Council. They’re an equal branch, empowered constitutionally to declare war and theoretically designed to check executive power. That leaves them only two semi-dignified options here. One: Boehner can agree to hold a vote on the condition that if Obama, having conceded Congress’s role in this, then defies them, they’ll move to punish him somehow. Whether that means a court challenge, a formal censure stating that he’s in violation of the Constitution, or full-on impeachment is up to the leadership. But there needs to be some penalty. Two: If the leadership senses that there’s no majority willing to punish Obama, then the House simply shouldn’t vote. Even among Republicans, there are probably strong-form hawks who believe O has authority as commander-in-chief to attack an enemy unilaterally; they might refuse to punish him for defying Congress on those grounds, which is the core of the debate over the War Powers Act. Boehner should do a head count in advance and, if he can’t get to 218 in favor of penalizing O, he should announce that he won’t bring a Syria resolution to the floor. Don’t dignify Obama’s charade, in which congressional approval counts but congressional disapproval doesn’t, by participating in it. A vote on war by the national legislature either means something or it doesn’t.

The response to this, I assume, will be that it inadvertently plays into Obama’s hands. O, having shown his supposed magnanimity in consulting Congress, can now bomb away on grounds that John Boehner spurned him when he sought input from Congress. Boehner would, the argument goes, actually be sparing Obama the political difficulty of attacking after Congress has said no. But what’s the alternative? If the House votes no and O attacks anyway with impunity, the precedent will be set that the president doesn’t need to come to Congress anymore in matters of war (unless, maybe, he anticipates boots on the ground). In fact, after this fiasco, it’s a lead-pipe cinch that the president won’t come to Congress anymore even if O ends up prevailing narrowly in the House. It’s simply too risky for him to seek approval in advance. If Congress is serious about asserting its warmaking power, this is the best chance they’ll have for a long time to come. O put them in a spotlight because he got cold feet about the attack; now they can exploit it by setting their own precedent of insisting that he respect their wishes upon penalty of … something.

But what penalty? A court challenge won’t work. No federal judge is going to tell the C-in-C to cancel airstrikes in the works on grounds that only Congress has the power to declare war. The suit will be dismissed as a “political question” to be handled by the voters next year. A censure resolution might pass the House but Democratic hacks in the Senate will kill it. The nuclear option is impeachment, which would also be defeated in the Senate but would send a profound — and newsworthy — signal of disapproval once it passed the House. Would Republicans risk doing something like that, though, even to defend Congress’s constitutional prerogatives? The standard line when an angry conservative constituent asks Ted Cruz or some Republican backbencher to impeach Obama is that it’s pointless to try given the Democratic majority in the Senate. Harry Reid and company would never vote to remove him. And of course it’s hugely risky for the GOP at the polls if the public sides with O over them; one of the lessons they learned from the Clinton years is that impeachment, like shutting down the government, can backfire. Besides, GOP leaders would say, Obama technically hasn’t qualified for impeachment by defying Congress on war. He’s affronted checks and balances and unconstitutionally arrogated the warmaking power to himself, but that’s not a “high crime or misdemeanor” under any criminal statute. Ultimately, I think, they’d chicken out and all we’d get are solemn statements of disapproval at the podium. And knowing that, without assurances from O that he’ll respect Congress’s wishes, Boehner should pull the plug.

But not just yet. It’s time to seek those assurances first. Let’s make The One, whose fans love to remind you that he’s a con law professor, squirm over why it’s important to have the people’s representatives weigh in here but not so important that their consensus opinion should decide how America acts. And then let’s see if our friends in the media start asking House and Senate Democrats what they think should happen if O ignores a “no” vote in Congress. They’d see that, correctly, as a grave constitutional crisis if a Republican president did it. Time for them to squirm a little too.


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The nuclear option is impeachment, which would also be defeated in the Senate but would send a profound — and newsworthy — signal of disapproval once it passed the House.

What difference does it make?

Clinton wasn’t removed by the senate, but he still carries the stench of impeachment. Obama should be impeached in the House and so what if it doesn’t fly in the Senate. He will still carry the stench.

Mirimichi on September 5, 2013 at 1:26 PM

http://blog.constitutioncenter.org/2013/08/why-the-war-powers-resolution-isnt-a-key-factor-in-the-syria-situation/

The precedents for Presidential military powers

Congress has formally “declared war” 11 times during five wars, and it has granted approval under statutory Authorizations for the Use of Military Force (AUMFs) another half-dozen or so times.

But the president’s power to use defensive force, or “force short of war,” has been recognized since President Jefferson sent two-thirds of the U.S. Navy half-way around the known world with instructions to “sink and burn” ships of the Barbary Pirates—and didn’t even formally notify Congress for more than six months. No one in Congress complained that Jefferson had acted improperly.
The kinds of war historically associated with formal declarations have been clearly outlawed by international law, and no country has formally declared war since the UN Charter entered into force in 1945.
Like the power of Congress to “grant Letters of Marque and Reprisal” given in the same sentence (which authorized private ship owners to seize the ships of an enemy on the high seas, but were outlawed by the 1856 Declaration of Paris), the legislative power “to declare War” is today an anachronism.
International law has not changed our Constitution, and if a President decided to violate our treaties by launching an all-out aggressive war or authorizing war by private merchant vessels, Congress would still retain its constitutional negative.

But neither is likely to happen. This is not to dismiss the important powers Congress does have related to hostilities, as the Commander in Chief has no military force to “command” unless first raised by Congress and funded by appropriations.

Speaking of the UN Charter, in recommending that it receive the Senate’s advice and consent for ratification, the unanimous Senate Foreign Relations Committee report discouraged any efforts to limit the president’s ability to use armed force pursuant to the Charter, as that might “violate the spirit of the United States Constitution under which the President has well-established powers and obligations to use our armed forces without specific approval of Congress.”

jp on September 5, 2013 at 1:28 PM

Mirimichi on September 5, 2013 at 1:26 PM

I’m sorry, I was talking about demonrats, and to them, that is a resume enhancer.

Mirimichi on September 5, 2013 at 1:28 PM

appreciate the link. I’ll read the thing later. Can you toss up a thumbnail of that 78 page pdf?

Dusty on September 5, 2013 at 1:26 PM

just linked recent shorter version, same stuff by same Author above.

This whole thing is political b.s. and would not hold up in SCOTUS. There is a long history on this subject.

jp on September 5, 2013 at 1:30 PM

‘It is the exclusive province of Congress to change a state of peace into a state of war.’

- Justice William Paterson writing for the Court in United States v Smith, 1806

Resist We Much on September 5, 2013 at 1:33 PM

The suit will be dismissed as a “political question” to be handled by the voters next year.

Doe v Bush wasn’t dismissed as a ‘political question.’ It was decided by the First Circuit Court of Appeals and the Supreme Court denied cert, effectively agreeing with it.

Resist We Much on September 5, 2013 at 1:41 PM

Declaring War Is One Power That The President Absolutely Does Not Have

Resist We Much on September 5, 2013 at 1:32 PM

War Powers resolution allows the President to use military force for 60 days without authorization or declaration of war by Congress…

mnjg on September 5, 2013 at 1:42 PM

Declaring War Is One Power That The President Absolutely Does Not Have

Resist We Much on September 5, 2013 at 1:32 PM

War Powers resolution allows the President to use military force for 60 days without authorization or declaration of war by Congress…

mnjg on September 5, 2013 at 1:42 PM

I cover the WPRA in my piece. Did you read it?

Resist We Much on September 5, 2013 at 1:50 PM

War Powers Resolution Act

50 U.S.C. § 1541 – Purpose and policy

(a) Congressional declaration

It is the purpose of this chapter to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued use of such forces in hostilities or in such situations.

(b) Congressional legislative power under necessary and proper clause

Under article I, section 8, of the Constitution, it is specifically provided that the Congress shall have the power to make all laws necessary and proper for carrying into execution, not only its own powers but also all other powers vested by the Constitution in the Government of the United States, or in any department or officer hereof.

(c) Presidential executive power as Commander-in-Chief; limitation

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.

Has Syria declared war on the United States?

No, but AQ has and it is part of the ‘rebels’ of whom we are asked to arm and assist.

Is there yet any specific statutory authorisation for airstrikes on Syria?

No.

Has a national emergency been created by an attack from Syria upon the United States, its territories or possessions, or its armed forces?

Nope.

Resist We Much on September 5, 2013 at 2:01 PM

Solution: Condition a vote on Kerry and Hagel saying that they can’t go to war if Congress says no.

blammm on September 5, 2013 at 2:05 PM

Resist We Much on September 5, 2013 at 2:01 PM

All what you are publishing does not address the main point of the argument here which is the President of the United States under the War Powers Resolution has the right to order military actions for 60 days without Congress authorization or declaration of war…

mnjg on September 5, 2013 at 2:06 PM

All what you are publishing does not address the main point of the argument here which is the President of the United States under the War Powers Resolution has the right to order military actions for 60 days without Congress authorization or declaration of war…

mnjg on September 5, 2013 at 2:06 PM

Many of us consider the WPR to be an illegal abrogation of Constitutional powers.

In any case, it does not give the President the power to declare war. Bombing another nation when the United States is not in danger is not how the WPR was intended to be used.

In short, the President does not have the authority to start a war because his ego has been bruised.

Happy Nomad on September 5, 2013 at 2:12 PM

All what you are publishing does not address the main point of the argument here which is the President of the United States under the War Powers Resolution has the right to order military actions for 60 days without Congress authorization or declaration of war…

mnjg on September 5, 2013 at 2:06 PM

WITH LIMITATIONS as the War Powers Resolution Act clearly demonstrates. Syria doesn’t fall under the WPRA, AS WRITTEN.

And, I won’t even go into whether it is constitutional or not. You’ll notice that every President and many people complain about it, but have never taken the matter before the Supreme Court to decide.

Resist We Much on September 5, 2013 at 2:24 PM

In any case, it does not give the President the power to declare war. Bombing another nation when the United States is not in danger is not how the WPR was intended to be used.

In short, the President does not have the authority to start a war because his ego has been bruised.

Happy Nomad on September 5, 2013 at 2:12 PM

Not only intended, but specifically stated, which is why the WPRA limits the President’s ability to act to THREE areas.

Resist We Much on September 5, 2013 at 2:26 PM

Congress has formally “declared war” 11 times during five wars, and it has granted approval under statutory Authorizations for the Use of Military Force (AUMFs) another half-dozen or so times.

jp on September 5, 2013 at 1:28 PM

I’m a little tired of this “redefinition”. Stop using leftist talking points when they’re so clearly wrong.

An authorization for the use of military force is a declaration of war.

It is the authorization to, in fact, commit an act of war. After all, what else can you possibly call the use of military force BUT an act of war? If an enemy of ours uses military force against us, have we ever called it anything other than an act of war?

You fall into the trap leftists created just for you. The Constitution does not define the form that a declaration of war must take. An AUMF is certainly such a declaration, unless the phrases “act of war” and “military force” have changed their meaning since the founding. Care to make that case?

runawayyyy on September 5, 2013 at 2:28 PM

All what you are publishing does not address the main point of the argument here which is the President of the United States under the War Powers Resolution has the right to order military actions for 60 days without Congress authorization or declaration of war…

mnjg on September 5, 2013 at 2:06 PM

And hilw on earth will he fund this 60-days idiotic adventure??? The Pentagon doesn’t have the money for it, so he’ll be back to Congress to ask for money inno time…shouldn’t he soare himself the humiliation (alas, anither one), take no for an answer from the start and stop this face-saving kabuki?? Nobody cares aboit his ego, he’s already the laughing stock of the world, there’s nothing to save, he doesn’t have a ‘face’ no more (sic!)…

jimver on September 5, 2013 at 2:31 PM

‘How’ and ‘spare’ that is…

jimver on September 5, 2013 at 2:32 PM

Congress has formally “declared war” 11 times during five wars, and it has granted approval under statutory Authorizations for the Use of Military Force (AUMFs) another half-dozen or so times.

jp on September 5, 2013 at 1:28 PM

‘[T]he text of the October Resolution itself spells out justifications for a war and frames itself as an ‘authorisation’ of such a war.’

- Doe v Bush, 323 F.3d 133 (1st Cir. 2003)

As I wrote above, the Supreme Court denied cert effectively agreeing with the First Circuit Court of Appeals.

The fact of the matter is that neither the Constitution nor Federal law stipulate the form in which a declaration of war from Congress must take. So, if Congress must formally declare war, then it is sort of strange that there wasn’t a DECLARATION OF WAR for the First Barbary War, which occurred during Jefferson’s Presidency, and the Second Barbary War, which occurred during Madison’s administration, given that the former is considered the Father of the Declaration of Independence, in which the abuses of the King (a utilitarian executive) were cited at length, and the latter is called the Father of the Constitution because he was its primary author and, presumably, knew exactly what was intended by it. Rather than issuing formal declarations in either, Congress passed AUMFs for both.

Ron Paul and many Paulistinians joined with a plethora of Democrats, including quite a few of those who actually voted for both resolutions, to claim that both Afghanistan and Iraq were illegal wars. (I opposed both the Afghan ground war and the Iraq War, but neither was illegal.) Yet, like both Barbary Wars, Congress granted AUTHORISATION to the President to wage war for both.

Resist We Much on September 5, 2013 at 2:40 PM

If an enemy of ours uses military force against us, have we ever called it anything other than an act of war?

runawayyyy on September 5, 2013 at 2:28 PM

Sadly, yes. *shakes head* It doesn’t negate your point, but yeah, we have. *sigh*

GWB on September 5, 2013 at 2:45 PM

[jp on September 5, 2013 at 1:30 PM]

Thanks.

See this is the problem with I have with those who use Jefferson’s actions in the First Barbary War as a reference to the President’s executive power to declare war. In the post you link, Turner says this:

But the president’s power to use defensive force, or “force short of war,” has been recognized since President Jefferson sent two-thirds of the U.S. Navy half-way around the known world with instructions to “sink and burn” ships of the Barbary Pirates—and didn’t even formally notify Congress for more than six months. No one in Congress complained that Jefferson had acted improperly.

This is a manifestly misleading characterization of events. Jefferson sent three frigates and a schooner, which may have been two thirds of our navy. The instructions were several. Patrol the Mediterranean with the purpose of protecting our commerce, and deliver tributes to Algiers and Tunis and Tripoli unless they found we were at war by their declaration, in which case sink and burn those who were. We delivered tributes to Algiers and Tunis and found Tripoli had declared war in May, so we, in self-defense engaged them. This was in July – August. Jefferson reported this to Congress in January shortly after this was reported to back to Washington and asked for their continuance of the mission.

Read about it here. I don’t see this event being an argument for the President’s power to declare war or, for that matter some unitary privilege on authorization of the use of force, except insofar as it relates to self-defense of our interests as it occurs, or as they say, is imminent.

Based on Turner’s miscasting of the Jefferson’s actions alone, I’m not inclined to read further at this time, in the belief any other arguments for this power are as pitiful as this. I’ll read it later and I may be wrong in this opinion, but, if I were you, I’d be a little more circumspect about using Turner in defense of Obama on Syria.

Dusty on September 5, 2013 at 2:47 PM

But, Jefferson DID go to Congress and it did authorise the First Barbary War…

‘I communicate [to you] all material information on this subject, that in the exercise of this important function confided by the Constitution to the Legislature exclusively their judgment may form itself on a knowledge and consideration of every circumstance of weight…CONSIDERING THAT CONGRESS ALONE IS CONSTITUTIONALLY INVESTED WITH THE POWER OF CHANGING OUR CONDITION FROM PEACE TO WAR, I HAVE THOUGHT IT MY DUTY TO AWAIT THEIR AUTHORITY FOR USING FORCE IN ANY DEGREE WHICH COULD BE AVOIDED.’

- President Thomas Jefferson to Congress on the subject of the Pasha’s DOW and the actions of the Barbary Pirates

Jefferson did not declare war in response to the Pasha’s declaration or act preemptively. He ordered ships to be armed AS A MEASURE OF SELF-DEFENCE.

Congress approved an AUMF on 6 February 1802.

Resist We Much on September 5, 2013 at 2:51 PM

Sadly, yes. *shakes head* It doesn’t negate your point, but yeah, we have. *sigh*

GWB on September 5, 2013 at 2:45 PM

Of course you are correct. I should have qualified that with “when we had a real president….”

\chastened

runawayyyy on September 5, 2013 at 3:06 PM

This whole mess is ‘Looney Tunes.’ If we had a President who owned a pair, he would back away from his bruised ego and go himself to confront Assad. That would show some character. But……….we don’t and he won’t so a lot of other people have to die. What a disgusting excuse for a human being.

yesiamapirate on September 5, 2013 at 3:19 PM

………and Congress? Don’t get me started.

yesiamapirate on September 5, 2013 at 3:22 PM

You people are wasting your time. Does the President have the power to simply change laws at his whim?

No, but he has anyway.

The constitution is a meaningless document now, and so is the War Powers Act.

We are a lawless nation that operates as the President desires.

Meremortal on September 5, 2013 at 3:31 PM

[Meremortal on September 5, 2013 at 3:31 PM]

Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.

The same can be said with respect to dealing with Presidents.

Dusty on September 5, 2013 at 4:01 PM

Everyone in Congress should vote PRESENT!

GarandFan on September 5, 2013 at 6:09 PM

Not voting on this will allow the president to back down and change the subject, as most leftists do, when they know they are in the wrong. (hey, let’s have a “national conversation” about bombing Syria!).

Voting on it and defeating it will excuse the president his stupidity.

Voting and approving it will put the ball back in his court, which is the last thing that he wants. He hates responsibility.

If he goes ahead and makes war without congressional approval, (with or without a vote) articles of impeachment should be prepared.

virgo on September 6, 2013 at 2:10 AM

Allahpundit did a great job with this post.

bluegill on September 6, 2013 at 4:11 AM

Present.

xrayiiis on September 6, 2013 at 10:02 AM

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