On Sunday, Republican Sen. Bob Corker and Rep. Eliot Engel -- a Democrat who voted for the Iraq war -- told Fox News that President Obama should strike Syria first and get congressional approval afterwards.
That's not how the U.S. Constitution says it should go. That's not how the War Powers Resolution (which, despite the name "resolution," is binding U.S. law) says it should go. The Constitution and the War Powers Resolution say that absent an attack on the United States, Congress must approve military action before it takes place. There is a common misconception about the War Powers Resolution that it allows the president to do whatever he or she wants for 60 days. This confuses one provision of the War Powers Resolution with the whole. In section 2c, the War Powers Resolution affirms that:
The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.
There's another common misconception that because presidents have claimed that the War Powers Resolution is unconstitutional, it can be ignored. First, the president doesn't get to declare things unconstitutional on his or her own say-so -- the president is entitled to his or her opinion, but that's all it is, an opinion. Second, while the constitutionality of some provisions of the War Powers Resolution has been disputed, the constitutionality of section 2c has never been in serious dispute. If other parts of the War Powers Resolution were to fall to a constitutional challenge -- which they haven't -- section 2c would still be good law.
According to a recent Reuters/Ipsos poll, 60 percent of Americans surveyed said the U.S. should not intervene in Syria's sectarian civil war, while just 9 percent thought President Obama should intervene. Even if Assad's forces used chemical weapons to attack civilians -- at this point, an allegation which has not been proved, and an allegation that has a track record of being made without being borne out -- only 25 percent of Americans would support U.S. intervention, while 46 percent would oppose it.
On July 24, the House approved an amendment by voice vote that would prohibit funding of any military action that violates the War Powers Resolution.
If President Obama can get us into war in Syria without prior congressional approval, it will set a terrible precedent: A future president could get us more easily into war in Iran without prior congressional approval.
Tell President Obama and Congress: there must be no U.S. military action in Syria without congressional debate and authorization.
Congress is out of session right now. But there is no emergency that requires immediate, unconstitutional, illegal action. If there were an emergency that required immediate action, Congress could be called back into session. If there's no emergency that requires immediate action, then action can wait until Congress reconvenes.
Syria's sectarian civil war has been going on for years. If President Obama wanted to intervene militarily, he's had ample opportunities to put the proposition to congressional debate and vote.
It is perhaps not a coincidence that when President Obama intervened militarily in Libya -- also without congressional authorization -- Congress was out of session.
There is no provision in the Constitution or the War Powers Resolution for a "recess war." If the precedent is set that the President can do whatever he or she wants so long as Congress is out of session, the war powers provisions of the Constitution and the War Powers Resolution will be substantially undermined. And the prospect of war with Iran will get much closer, because a key speed bump on the road to war will be removed.
If Congress doesn't count, then the American people don't count. It's no accident that the permanent war party wants the president to go around Congress when the majority of Americans are strongly opposed to a new war. If Congress and the American people can be evaded in this case, it's a body blow to the principle that U.S. foreign policy should be subordinate to democracy and the rule of law.
It should not go unnoted that a U.S. military strike on Syria under present circumstances would be a grave breach of the U.N. Charter, because Syria has not attacked the United States and the U.N. Security Council has not approved military action in Syria.
Of course, there is a widespread belief in Washington and the country at large that the U.N. Charter and international law generally don't apply to the United States: "that's not for us to follow, that's for the little people to follow."
But even if this is your view -- that the U.N. Charter doesn't apply to the United States -- note that it is generally accepted in Washington that the fact that the U.S. would be in breach of the U.N. Charter if it strikes Syria without being attacked and without Security Council authorization has significant implications for whether U.S. military action is legal under the Constitution and the War Powers Resolution.
In past cases where an administration has deployed force without congressional authorization, and which supporters of military action without congressional authorization cite as precedents -- Kosovo and Libya -- the administration cited international action as justification: NATO action in the former case, UN action in the latter case.
Now, in fact, there's nothing in the Constitution or U.S. law that says that the administration can act without congressional approval because there's a UN resolution or a NATO agreement. But because administrations have argued in the past that a UN resolution or NATO action can help justify U.S. military action in the absence of congressional authorization, it matters that there is no UN resolution and no NATO action -- the administration's legal case for unilateral action is even weaker than in the Kosovo case or the Libya case.
Unfortunately, the Constitution and the War Powers Resolution are not self-enforcing when it comes to protecting congressional war powers, democracy, and the rule of law. The enforcement is political. The Constitution and the War Powers Resolution are enforced when Members of Congress insist that they be enforced, and Members of Congress insist that the Constitution and the War Powers Resolution be enforced when they hear from the public that they want the Constitution and the War Powers Resolution to be enforced.
That's why it's important for the public to speak up. Tell President Obama and Congress to comply with the Constitution and the War Powers Resolution: no military intervention in Syria without prior congressional approval.