As Congress moves to debate authorization for the use of force in Syria, and especially since there is some question about whether DOD has adequate funding for a strike in Syria, Congress may want to ponder the votes it took in the not-unrelated context of Kosovo fourteen years ago. (The original purposes of the Kosovo strikes were similar to the ones stated for Syria: “to demonstrate the seriousness of NATO’s purpose so that the Serbian leaders understand the imperative of reversing course; to deter an even bloodier offensive against innocent civilians in Kosovo; and, if necessary, to seriously damage the Serbian military’s capacity to harm the people of Kosovo.”) And in that regard it will want to pay special attention to an opinion that the Office of Legal Counsel published in 2000 about the meaning of those votes.
The relevant facts, in brief: Without congressional authorization, President Clinton ordered air strikes to begin in Kosovo on March 24, 1999. Three weeks later, he sought $6 billion to fund the continuation of U.S. actions in Kosovo. On April 28, the House of Representatives took four votes related to Kosovo. It voted against a declaration of war. It rejected a concurrent resolution that would have authorized continued military force in Kosovo, and a different concurrent resolution that would have directed the President to remove the Armed Forces from Serbia within 30 days. And it voted to block funding for ground troops in Kosovo without specific congressional authorization. After these votes, Congress continued to consider the President’s appropriation request. In May, it enacted a supplemental funding measure for, among other things, “costs resulting from ongoing contingency operations in . . . Kosovo.” In short, and simplifying a bit, Congress declined to formally authorize Clinton’s use of force in Kosovo, but it funded his efforts.
OLC never explained why the original strikes in Kosovo were consistent with the Constitution. But its 2000 opinion did rule that, despite Congress’s formal rejection of authorization for force in Kosovo, the appropriation measure constituted authorization for continuing hostilities in Kosovo after the running of the 60-day WPR clock under Section 5(b) of the War Powers Resolution (WPR) OLC reached this conclusion even though the WPR states in Section 8(a) that “[a]uthority to introduce United States Armed Forces into hostilities . . . shall not be inferred from any provision of law . . . , including any provision contained in any appropriation Act, unless such provision specifically authorizes the introduction of United States Armed Forces into hostilities . . . and states that it is intended to constitute specific statutory authorization within the meaning of this chapter.” (My emphasis.) OLC’s reasoning, in a nutshell, was that the context and legislative history of the 1999 appropriation measure indicated that Congress “clearly intended to authorize continuing military operations in Kosovo,” and that this later-in-time reflection of congressional intent superseded the interpretive rule of Section 8(a) of the 1973 WPR.
Here is why the OLC opinion might be relevant to the Syria debate. If Congress authorizes force for Syria, that is the end of the matter from a constitutional perspective. But if Congress declines to authorize force but simultaneously appropriates money for the use of force in Syria, the President could, relying on the OLC opinion, construe this appropriation as constitutional authorization for the use of force. (The OLC opinion was about whether the appropriation constituted authorization for purposes of the WPR, but the precedents and principles it cites could easily be applied to the constitutional context.) I don’t know if Congress will consider authorization and appropriation issues for Syria together. But if appropriations for Syria are on the table, Congress needs to be aware that it can (according to the Executive branch, backed by precedent) authorize force in that manner as well, even if it votes down formal authorization.
A related but yet more speculative issue is: What happens if Congress declines formal authorization, and the President uses force in Syria anyway and then seeks appropriations from Congress for continuing operations in Syria? This is essentially what happened in Kosovo. Such a request would put Congress in a pickle (as it always does, see Kosovo), for declining appropriations could be viewed as “not supporting the troops in battle.” Certainly appropriations for the conflict at that point could (under the OLC opinion) constitute authorization for purposes of the WPR, though I suppose it is possible for Congress to make clear in the appropriation statute that it does not want its appropriation to be so interpreted. A more interesting question is whether the after-invasion appropriation could be viewed to cure any constitutional defect in the original unilateral presidential use of force. This is essentially what the Executive branch claimed happened in the Korean War. Again, Congress could likely defeat this construction of its appropriation through a clear disclaimer in the appropriation statute itself. In any event, this issue is premature.