Constitution Daily

Smart conversation from the National Constitution Center

Debate over War Powers may yield positive outcome

September 25, 2013 by Mariah Zeisberg


Anyone who believed that the scope of the president’s constitutional war powers was politically settled was surely surprised by the intensive back-and-forth between the president and Congress over a possible US military intervention in Syria.

US_Navy_Aircraft_Carrier_USS_John_C_Stennis_MOD_45153514Uncertainty about what the Constitution requires is thick: even as President Obama called for legislative authorization to bolster the legitimacy of strikes, and even as he now appeals to the UN for a resolution authorizing military sanctions if Syria does not comply with the U.S.-Russia agreement for destroying its chemical weapons, the president nevertheless maintains that he has the authority to commit the U.S. to hostilities in Syria without Congressional (or UN) authorization.

Robert Gates criticized the president for running a risk of looking “weak” if Congress did not authorize military action, and agreed with Leon Panetta that the president obviously has all power needed for strikes in Syria.

On the other hand, constitutional scholars Louis Fisher, Stephen Griffin, and Sandy Levinson have argued that Obama’s constitutional grounding for independent strikes is either non-existent or extremely weak. Congress itself has been divided over whether authorization is necessary for a presidential strike in Syria.

While the Constitution tells us that Congress has the power to “declare war,” the text nowhere defines what kinds of hostilities count as war – which has enabled some opportunism in the Obama administration, and in many other presidential administrations too.

Even the War Powers Resolution restricts “hostilities” without defining the term, and there, too, Obama has been willing to press language to (or beyond) its absolute limit.

Constitutional and statutory text that does not define the meaning of the key words that separate one institution’s authority from another necessarily insert some measure of uncertainty into the branches’ war powers regime.

What to make of these tensions and ambiguities? Has the Constitution failed in its task to provide a definitive legal framework that can guide decision-makers about important questions such as which institution has the power to take the country to war? Isn’t the point of a Constitution to resolve this kind of conflict? If it is so pervasively difficult to read our political culture and know which branch has war authority, then does that mean that the Constitution has failed to do its job – or worse, that we are witnessing an epidemic of reckless infidelity to the Constitution’s mandates?

In fact, I think that uncertainty as to the meaning of the Constitution’s war powers regime in Syria is not catastrophic but may actually carry benefits.

As diplomacy around Syria unfolds, I want to draw attention to a few of the intersections between domestic constitutional debates and the conditions for effective international action.

First, it is arguably the threat of intervention which moved Russia into high gear in negotiations with Syria. But President Obama needed a plausible claim of independent presidential empowerment for such a claim to be credible.

At the same time, such a claim, unresisted, raises the specter of undefined aims, mission creep, costly wars without broad public support, unconsidered policy complexities, and troubling bellicose precedent that are a hallmark of presidentialism in war. This is, in part, why congressional mobilization to defend its institutional prerogatives has been so welcomed by some prominent war powers scholars.

Obama’s subsequent willingness to back down, to accommodate claims to legislative empowerment – derided by many as a weak or vacillating choice -- seems in turn to have created time and space for a diplomatic process to unfold in the place of a military one.

Recent developments in that process include not only a Russian-brokered plan to confiscate all chemical weapons from the Assad regime but also statements by the Ayatollah Khamenei signaling openness to diplomacy and by President Rouhani that Iran would not develop a nuclear weapon.

And now Obama is moving this technique of vacillating red lines up to the level of global institutions.

On the one hand he is pressing the UN to back up the U.S.-Russia agreement with sanctions, but at the same time says that he reserves the power to act outside the UN, and has argued that “without a credible military threat, the Security Council had demonstrated no inclination to act at all.”

We have yet to see what kind of domestic or international push-back would await him if he tried to translate this rhetorical willingness to act outside the UN into concrete action.

Obama’s constitutional “vacillations” may end up being productive in sundering the Assad regime from its chemical weapons. Only time will tell.

For constitutional scholars, it is worth noting the positive role that uncertainty and textual ambiguity can create in generating good international outcomes.

Mariah Zeisberg is associate professor of political science at the University of Michigan and the author of the book "War Powers: The Politics Of Constitutional Authority."

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