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.