After reading the shameless attention-grab that was Tim Stanley’s latest Telegraph blog post (Obama and Syria: Britain has helped Obama rediscover the Constitution. No need to thank us, America), I realised that it was not, in fact, the ‘Anarcho-Catholic’ and ‘temperamentally conservative’ author’s attempts at being clever (‘Obama referred to America as a constitutional democracy. It’s a republic, sir, a republic. What grades did he get at college I wonder?‘) that made the largest impression on me. Instead, it was the fact that he considered Obama’s decision to seek Congressional approval for a military intervention to have been a ‘remarkable performance.’ The notion that the President’s decision to seek out the proverbial ‘green light’ from Congress is at all controversial is deeply worrying. While the school of thought that considers unconstitutional every post-Second World War American armed conflict (John Nichols writes that ‘no president since Roosevelt has respected the Constitution sufficiently to seek a formal declaration of war.’) fails to account for the insufficiency of archaic international institutions, political assumptions, and legal norms, it certainly seems more lucid than the alternative. As House Republican Peter King sees it, Obama is ‘undermining the authority of future presidents’ by not acting unilaterally in lobbing cruise missiles into the Syrian conflict. ‘The president doesn’t need 535 Members of Congress to enforce his own redline‘, he argues. But at what point was the Commander-in-Chief given the power to draw these red lines in the first place?
Jack Goldsmith, Professor at Harvard Law School, expert on international law, and former Assistant Attorney General published a blog post entitled ‘Why Doesn’t President Obama Seek Congressional Approval for Syria?‘ a few days ago, when a Presidentially-sanctioned unilateral strike seemed all but imminent. After running through a litany of potential justifications for such a broad conception of presidential power (e.g. ‘military action is being rushed’, ‘formal congressional approval is not a priority’, etc), he concludes that exactly none ‘are good reasons from a constitutional perspective, and in light of the costs of unilateralism’. While the first half of that statement is rather self-evident, the latter half deserves more than a passing acknowledgement. Thus, we will return to the notion of unilateralism in concluding this text. It would seem that Constitutional law scholar Garrett Epps concurs with his Harvard colleague, going as far as to title his first article in The Atlantic on the topic ‘The Authority to ‘Declare War’: A Power Barack Obama Does Not Have‘. In a twist that only becomes ironic after reading the commentary of Tim Stanley, Epps points out that while the Prime Minister of the United Kingdom reserves the right (backed by ‘Royal Prerogative’) to send Britain into war without Parliamentary consent, the American President surely does not. He continues on to explain why historic precedents of Presidentially-sanctioned intervention (most notably: Korea) do not readily apply to the current situation. As any action would, inherently, lack the pretence of defensive or emergency action, Epps judges that: ‘This is precisely the kind of situation for which the Framers of our Constitution designed its division of authority between President and Congress.’ He conjures up a very appropriate quote from South Carolina Governor and author of the United States Constitution, John Rutledge as he argued against a President with exceedingly broad powers during the from the minutes of the Federal Convention of 1787:
‘ [Rutledge] said he was for vesting the Executive power in a single person, tho’ he was not for giving him the power of war and peace.’
If that is not applicable to the debate over the Framers’ intentions, I do not know what is. Epps went on to publish a second article, Yes, Congress Can Authorize War Without Formally ‘Declaring’ It, which refutes the notion that a Congressional decision is an ‘all or nothing’ affair that was meant for national mobilisation for Total War. In agreeing with Alexander Hamilton’s judgement that the ‘powers of war and peace’ should be viewed as ‘a concurrent authority’ that is shared between the President and Congress. He further levels his sights against those who share the views of John Nichols in pointing out that:
‘If every “undeclared” conflict is a violation of the Constitution, we need retroactive impeachment of Adams, Jefferson, Monroe, Eisenhower, Johnson, Reagan, and both Bushes.’
Finally, and most importantly, Epps emphasises the fact that international law is ‘very much a part of the constitution’ (see, for example, the Supreme Court’s recognition of international treaties in relation to the Supremacy Clause [This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…]), and, as such, war can not be used as mechanism of foreign policy. In any case, I do not find persuasive arguments that place a higher importance on defining the words ‘declaration’ and ‘war’ than on the notion that the Constitution has provided the United States Congress with the responsibility (emergency situations notwithstanding) of deciding when military action is appropriate, and when it is not. Even a cursory glance at the eighth section of the very first article will give the impression that Congress was to be given the responsibility of authorising the use of what has become the world’s most powerful army. I believe that unilateralism, in its various manifestations, is the quintessential problem with contemporary American foreign policy. That is to say, I think it is the most fundamental flaw. A lack of regard for the opinions of the rest of the planet is the culprit behind such a staggering proportion of the world’s (freely substitute: “Intellectuals”, “Europe’s”, “the United Nations'”, etc.) problems with the last remaining superpower. It is so rare to encounter individuals who harbour a genuine aversion to the concept of humanitarian intervention, though it is equally rare to find someone who believes that the United States has done a stellar job of spearheading such efforts. Similarly, the question should not, as Kerry and company have indicated, be centred around whether or not President Obama reserves the right or privilege of commanding the military into action. Instead, I propose, it should be about whether doing so would be such a good idea after all.