AUMF: Syria

Obama’s Request to Congress Will Not Hamstring Future Presidents (Except for Some Humanitarian Interventions)

By Jack Goldsmith
Saturday, August 31, 2013, 10:12 PM

Peter Spiro at OJ, and David Rothkopf of FP whom he cites, both say that President Obama’s request for congressional authorization for Syria will allow Congress to hamstring future Presidents from using military force.  Rothkopf exaggerates when he says that President Obama reversed “decades of precedent regarding the nature of presidential war powers” by going to Congress here, and Spiro exaggerates when he says that this is “a huge development with broad implications . . . for separation of powers.”  What would have been unprecedented, and a huge development for separation of powers, is a unilateral strike in Syria.  Seeking congressional authorization here in no way sets a precedent against President using force in national self-defense, or to protect U.S. persons or property, or even (as in Libya) to engage in humanitarian interventions (like Libya) with Security Council support.  Moreover, the President and his subordinates have been implying for a while now that they will rely on Article II to use force without congressional authorization against extra-AUMF terrorist threats (and for all we know they already are).  There is no reason to think that unilateral presidential military powers for national self-defense are in any way affected by the President’s decision today.  That is as it should be.

To the extent that Spiro is suggesting that pure humanitarian interventions might be harder for presidents to do unilaterally after today (I think this is what he is suggesting, but I am not sure), I agree.  Kosovo is the only other real precedent here, and the Clinton administration never explained why it was lawful as an original matter.  The constitutional problem with pure humanitarian interventions – and especially ones (like Kosovo and Syria) that lack Security Council cover, and thus that do not implicate the supportive Korean War precedent – is that Presidents cannot easily articulate a national interest to trigger the Commander in Chief’s authority that is not at the same time boundless.  President Obama, like President Clinton before him in Kosovo, had a hard time making that legal argument because it is in fact a hard argument to make.  That is one reason (among many others) why I think it was a good idea, from a domestic constitutional perspective, for the President in this context to seek congressional approval.