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War Powers, Syria, and Non-Judicial Precedent

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Monday, September 2, 2013 at 7:21 AM

One claim that is being made about President Obama’s decision to seek congressional authorization for military action in Syria is that it is likely to weaken the authority of the presidency with respect to the use of force.  Peter Spiro contends, for example, that Obama’s action is “a watershed in the modern history of war power” that may end up making congressional pre-authorization a necessary condition for even small-scale military operations.  David Rothkopf states even more dramatically that “Obama’s decision may have done more—for better or worse—to dial back the imperial presidency than anything his predecessors or Congress have done for decades.”  If this claim is correct, it will be welcome news to those concerned about the growth of executive power and a matter of concern for those who are fans of robust executive unilateralism.  Unfortunately, the commentators making this claim do not identify the mechanism through which the weakening of presidential war authority will occur and have relied instead only on vague intuitions.

As an initial matter, we need to bracket the issue of whether Obama’s action will weaken his own power as a political matter.  This is a complicated issue:  on the one hand, it may signal weakness both to Congress and to other nations; on the other hand, if he obtains congressional authorization, he may be in an ultimately stronger political position, as Jack Goldsmith has pointed out.  As I understand it, the claim being made by Spiro, Rothkopf, and others is that the power of the presidency more generally is being weakened.  How might this happen?  Not through an influence on judicial doctrine:  Although courts sometimes take account of historic governmental practices when assessing the scope of presidential authority, they have consistently invoked limitations on standing and ripeness, as well as the political question doctrine, to avoid addressing constitutional issues relating to war powers.

In the absence of judicial review, what is the causal mechanism by which the “precedent” of Obama seeking congressional authorization for the action in Syria could constrain future presidential action?  When judicial review is unavailable, the most obvious way in which the President is constrained is through the political process—pressure from Congress, the public, his party, etc.  In an extreme case, this pressure could take the form of impeachment proceedings, but it does not take such an extreme case for the pressure to have a significant effect on presidential decisionmaking.  Indeed, it is easy to think of political considerations that might have motivated Obama to go to Congress with respect to Syria.

That’s all fairly clear, but what is unclear is how a non-judicial precedent, such as Obama’s decision to seek congressional authorization for Syria, will have an effect on later decisions with respect to the use of force.  The intuition, I think, is that Obama’s action will strengthen the hand of critics of later efforts by presidents to act unilaterally.  It will give the critics more “ammunition,” so to speak.  But why is this so, and what is meant, specifically, by “ammunition”?  Obama claims that he is seeking congressional authorization for policy reasons, not because he is required to do so, and a later president is likely to reiterate that explanation.   Moreover, if Obama is seeking congressional authorization for Syria because of political considerations (weak international and domestic support, public weariness about war, etc.), why would a later president feel compelled to follow that precedent when those political considerations do not apply?

It is easier to imagine a constraining precedential effect, I think, if Congress votes down an authorization bill on Syria, and the President then declines to take action.  After all, Obama has already stated that he has made a decision as Commander in Chief to use force.  If he responds to a negative vote in Congress by not doing so, it might seem like a concession against interest that he lacks authority to act when Congress is opposed.  Even if this did produce a constraining precedent, it would have limited effect, since it would not apply when (as is often the case) Congress does not take action one way or the other.  But even here, the mechanism of the constraint is uncertain:  Obama would likely claim that he was declining to take action for political reasons, such as the reduced likelihood of success created by the disunity between the branches, or the passage of time, or the lack of sufficient international support.  Why would a future president facing different circumstances feel constrained by Obama’s inaction?

My questions are not meant to suggest that an event like this will have no constraining effect on future decisionmaking.  Executive Branch lawyers place a lot of weight on non-judicial precedent in assessing presidential power, and future lawyers will need to incorporate the Syria episode into their analysis.  As a result, one could imagine that it will make it marginally more likely that Executive Branch lawyers will push back against the President in a future situation.  Moreover, regardless of its ambiguities, the Syria situation will give critics of presidential unilateralism an additional data point to invoke in their constitutional analysis, at least as a rebuttal to the claim that modern historical practice entirely favors unilateral presidential war-making.  If this makes their criticism more persuasive, to elites or to the general public, then it could have an effect.  But these effects are speculative, and the degree to which they are likely to have an influence is unclear.

Importantly, these speculations reveal how difficult it can be to separate legal and political considerations in contexts like this one, something that Trevor Morrison and I recently explored in an essay in the Columbia Law Review.  For example, it is possible that Obama’s action will create expectations in Congress about what is proper when the United States is considering military action and that such expectations could have an effect on future congressional-executive relations, at least during the remainder of the Obama presidency.  But this “expectation effect” could occur regardless of whether there has been a shift in perceptions about the constitutional law of war powers.  Similarly, while it is possible that Obama made the decision to go to Congress entirely for political reasons, it is also possible that he was motivated in part by legal considerations, both based on his own internal legal sensibilities as well as concerns about how his presidency and its relationship to law would be judged in the future.  Obama’s action thus highlights how presidential power over war involves an overlapping mix of law, politics, and practice.  Commentators need to do a better job of sorting these out before making bold predictions about the trajectory of executive power.

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