President Obama’s surprise announcement that he will ask Congress for approval of a military attack on Syria is being hailed as a vindication of the rule of law and a revival of the central role of Congress in war-making, even by critics. But all of this is wrong. Far from breaking new legal ground, President Obama has reaffirmed the primacy of the executive in matters of war and peace. The war powers of the presidency remain as mighty as ever.
It would have been different if the president had announced that only Congress can authorize the use of military force, as dictated by the Constitution, which gives Congress alone the power to declare war. That would have been worthy of notice, a reversal of the ascendance of executive power over Congress. But the president said no such thing. He said: “I believe I have the authority to carry out this military action without specific congressional authorization.” Secretary of State John Kerry confirmed that the president “has the right to do that”—launch a military strike—“no matter what Congress does.”
Thus, the president believes that the law gives him the option to seek a congressional yes or to act on his own. He does not believe that he is bound to do the first. He has merely stated the law as countless other presidents and their lawyers have described it before him.
The president’s announcement should be understood as a political move, not a legal one. His motive is both self-serving and easy to understand, and it has been all but acknowledged by the administration. If Congress now approves the war, it must share blame with the president if what happens next in Syria goes badly. If Congress rejects the war, it must share blame with the president if Bashar al-Assad gases more Syrian children. The big problem for Obama arises if Congress says no and he decides he must go ahead anyway, and then the war goes badly. He won’t have broken the law as he understands it, but he will look bad. He would be the first president ever to ask Congress for the power to make war and then to go to war after Congress said no. (In the past, presidents who expected dissent did not ask Congress for permission.)
People who celebrate the president for humbly begging Congress for approval also apparently don’t realize that his understanding of the law—that it gives him the option to go to Congress—maximizes executive power vis-à-vis Congress. If the president were required to act alone, without Congress, then he would have to take the blame for failing to use force when he should and using force when he shouldn’t. If he were required to obtain congressional authorization, then Congress would be able to block him. But if he can have it either way, he can force Congress to share responsibility when he wants to and avoid it when he knows that it will stand in his way.
This approach also empowers the president relative to Congress by giving him the ability to embarrass members of Congress when he wants to. Just ask Hillary Clinton, whose vote in favor of the 2003 Iraq War damaged her chances against Barack Obama in 2008, and the Democratic senators who could not enter the 1992 campaign for the presidency because their votes against the 1991 Iraq War rendered them unelectable. The best thing for individual members of Congress is to be able to carp on the sidelines—to complain about not being consulted and to blame the president if the war goes badly. That is why David Axelrod said, “Congress is now the dog that caught the car.” This is hardball politics, not a rediscovery of legal values.
If Obama gains by spreading blame among Congress, why didn’t the president ask Congress for military authorization earlier, before he threatened Syria with a missile strike? The answer appears to be that the president expected international support for the invasion and believed that if other countries supported him, he would not need support in Congress. Only when the British poodle rediscovered its inner lion did he shift gears. Again, this has nothing to do with the law; it’s a matter of political prudence.
And it is not hard to see why foreign countries refused to provide support. The legal rationale for the Syria intervention that the president fashioned—deterring the use of chemical weapons—has satisfied no other country. While no one likes chemical weapons, there is no reason to believe that the U.S. must deter their use by striking Syria. Iraq used chemical weapons 30 years ago, but no country followed its lead—even though no one bombed Iraq to punish it. Countries refrain from using chemical weapons because they inspire revulsion among people that governments usually need for support, not because there is a “norm” against them. And no matter how often Obama and Kerry say that they must intervene to enforce this norm, everyone understands that the real reason for U.S. intervention is to maintain the administration’s credibility, or to ensure that the U.S. retains influence over events, or to give a psychological boost to moderate Syrian rebel groups—not to vindicate international law (which the U.S. is violating in any event by disregarding the United Nations charter).
Some countries want to bombard Syria in order to stop the atrocities or counter Iran or lift favored rebel groups to power. Other countries want Syria left alone. But no country (except perhaps France) sees any sense in a limited strike to punish Syria for using chemical weapons—and, moreover, in such a way as to sting but not topple Assad’s government, a view shared by Sen. John McCain as well. You either kill the rattlesnake or leave it alone; you don’t poke it with a stick. So Obama’s international law theory failed not just because of its legal defects, but because it did not mesh with political realities. When Obama charged ahead nonetheless, he found himself naked and alone, and he turned to Congress for cover.