Is Obama Risking Executive Authority on Syria?

(Bloomberg News) -

In 1907, President Theodore Roosevelt contrived a plan to send all 16 of America’s battleships — his beloved Great White Fleet — steaming around the globe, to prove that the U.S. was now a great maritime power. When word got out, Congress balked, threatening to withhold funds for what was regarded as a wasteful extravagance. Roosevelt responded that he already had the money he needed, adding: “Try and get it back!”

This story comes to mind in the wake of President Barack Obama’s unexpected decision to seek congressional approval before taking any action in Syria. According to reports, Obama surprised even his closest advisers when he told them that he preferred to act only with legislative authorization. Predictably, an avalanche of criticism has followed.

A presidential request for congressional approval is no new thing. In 1991, President George Bush sought a resolution authorizing military action to drive Saddam Hussein’s forces from Kuwait. His son President George W. Bush did the same in 2001, to obtain congressional approval for the invasion of Afghanistan. And, of course Lyndon Johnson went to Congress in 1964 for the Tonkin Gulf Resolution that ultimately provided the legal basis for U.S. escalation of the Vietnam War.

Johnson and both Bushes dealt with Congress from positions of relative strength. They knew that the facts on the ground made it all but impossible for Congress to refuse their demands.

And Roosevelt, in the tussle over the Great White Fleet, sought to present Capitol Hill with a fait accompli. When challenged, he took the position that his constitutional authority as commander in chief allowed him to send the ships anywhere he wanted.

Obama’s situation is different. Congress may well adopt the resolution he seeks, but if members prove reluctant, the administration’s agonizing over the question suggests the president will not spend much political capital twisting arms. Should Congress fail to grant Obama approval, he will still face the same decision he does now.

“We cannot raise our children in a world where we will not follow through on the things we say,” the president warned on Saturday. He could only have been referring to his own warning last year that Assad would face “enormous consequences” were he to cross the red line by using chemical weapons. Obama is in effect asking for permission to enforce his own threat.

“I believe I have the authority to carry out this action without specific congressional authorization,” he declared. But “our actions will be even more effective,” he said, if Congress goes along. This isn’t exactly Roosevelt’s “Try and get it back!”

Critics have wondered whether allies and adversaries alike will decide that the United States will not in fact follow through on its threats — or at least will follow through only after such extended deliberation that the connection between words and action becomes amorphous.

These are fair points. On the other hand, undue haste can create problems of its own: Just ask the legislators who voted for the Tonkin Gulf Resolution, which became, in Johnson’s hands, tantamount to a declaration of war.

Other critics have contended that Obama’s decision to go to Congress may signal a weakening of the prerogatives of the commander in chief. I’m not so sure. Consider the Authorization for the Use of Military Force adopted in 2001, after the attacks on Sept. 11. The language turned out to be remarkably plastic. The Bush administration pointed to the AUMF as legal justification for the invasion of Iraq. The Obama administration has relied upon the same resolution as authority for its ever-widening drone war.

The transfer of authority from the legislative branch to the executive over the past century has been, on the whole, a terrible thing for the U.S. republic. But the fault lies with a Congress that will not protect its own prerogatives.

Obama’s decision to seek a congressional resolution on Syria will do little to change that dynamic. It isn’t as though a recalcitrant legislature forced his hand. Obama’s seeming reluctance to act without legislative approval will do nothing to handicap his successors. Quite the contrary: If Congress rejects his request, future presidents will simply go back to acting on their own — daring the legislators, Roosevelt-like, to stop them.

If, on the other hand, Congress gives Obama what he wants, we can be sure that this president, or some future one, will find another military purpose to which the resolution can be put. And somewhere, Theodore Roosevelt will be laughing.


 

Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University.