U.S. President Barack Obama’s decision to seek congressional authorization for a military strike against Syria is the latest chapter in an ongoing struggle between the executive branch and the legislative branch in the U.S. over each side’s powers to decide whether the U.S. should take part in an armed conflict. The U.S. Constitution divides these powers between both bodies: the president is the commander in chief but the power to declare war belongs to both houses of Congress, the Senate and the House of Representatives.
During the Cold War, the president appeared to increase his powers at the expense of Congress, particularly in cases of limited wars that were not formally declared. This began with the Korean War, when President Harry S. Truman did not ask Congress for its formal support. In some cases, like the Gulf of Tonkin Resolution in 1964, there was only implicit congressional support for the use of force by the U.S. in Vietnam through a reference to the authority of the administration to use “all necessary measures” to repel attacks on U.S. forces.
While there was no declaration of war, the Johnson administration felt it could eventually deploy over half a million soldiers with no solid language in any subsequent resolution from Congress backing this kind of open-ended expansion of the Vietnam War. Critics of what the administration was doing began talking about an “Imperial Presidency” that was usurping powers from the legislative branch of government.
The tide began to turn in 1973, as Congress took back its powers from the executive branch, with the adoption of the War Powers Act. The new law required the president to notify Congress immediately that U.S. forces had been committed to military action. The forces would then be automatically withdrawn after 60 days of combat, if Congress did not vote for their continuing deployment. The War Powers Act allowed for a 30-day extension if the president declared there was an “unavoidable military necessity that required such a move.” Thus, in theory, an American president could dispatch U.S. forces to engage in combat for as much as 90 days without a formal authorization by Congress.
President Richard Nixon vetoed the War Powers Act, but Congress came back and overrode his veto. The War Powers Act became law, but there were many in the legal community in the U.S. who regarded it as unconstitutional. This was never tested. The Supreme Court did not rule on this question. Most presidents in the years that followed did not always adhere to the War Powers Act.
Many times they were inconsistent in applying it. In 1983, when President Ronald Reagan sent U.S. forces to Grenada, he did not notify Congress. But when he deployed the Marines to Beirut, he sought and received authorization from both houses of Congress. Washington received reports that the Syrians were studying the War Powers Act. Congress at times spoke with the Reagan administration about applying the War Powers Act when the U.S. Navy began to operate against Libya and when it convoyed re-flagged tankers in the Persian Gulf to protect them from Iranian attacks.
In 1999, President Bill Clinton decided to evade Congress. He sent U.S. troops into Kosovo, without any authorization from either the Senate or the House of Representatives. An analysis in the Wall Street Journal revealed that Clinton managed to defeat the Serbs in Kosovo 12 days before the extended 90-day clock of the War Powers Act ran out. Clinton also launched a limited cruise missile attack against al-Qaida targets in Afghanistan and in Sudan with no congressional authorization. In contrast, President George W. Bush requested and received congressional authorization to use force in Afghanistan, after 9/11, and in the case of the Iraq War.
Looking at past presidential practice, Obama’s decision to use force against Syria in retaliation for President Bashar Assad’s use of chemical weapons is legal and no congressional authorization is required beforehand, especially if it is a short operation of a few days that does not even approach the time allotted for the presidential use of force under the War Powers Act. Obama certainly understands this; after all, he used to teach constitutional law before he entered politics. If Obama indeed does not need congressional approval, then why did he decide to turn to Congress, nonetheless?
The answer is that Obama needs Congress not for legality but rather for legitimacy. In fact, Obama stated that he has the legal authority to launch a strike on Syria by himself. When he appeared on August 31, in the Rose Garden of the White House, to announce his decision to turn to Congress, he stated: “Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective.” His words indicate that he understands that there is a danger that in the future his decision to turn to Congress in the case of Syria could be exploited and used as a precedent to further restrict the war powers of the president beyond what is written in the War Powers Act, and thereby weaken the global standing of the U.S.
If Obama seeks added legitimacy for his operation against Syria, in theory he could turn to the U.N. After the end of the Cold War, there was renewed optimism in Washington that the U.N. could become instrumental in safeguarding international peace and security. President George H. W. Bush turned to the U.N. Security Council to authorize his attack on Iraq after it had invaded and occupied Kuwait. He was supported by all five permanent members of the Security Council, including the Soviet Union (which became Russia in August 1991) and China.
But within a few years, it became apparent that the Russians would block American initiatives in the Security Council. In fact, in 1999 Clinton went to war in Kosovo without any authorization of the U.N. Security Council, because he knew he faced a Russian veto. This was not a sharp break from past U.S. practice; after all, President John F. Kennedy placed a naval blockade — labeled as a “naval quarantine” by the State Department — on Cuba in 1962, with no prior authorization by the Security Council.
It now appears that Obama understands the U.N.’s limitations. In his Rose Garden speech, he in fact said: “I’m comfortable going forward without the approval of a United Nations Security Council that, so far, has been completely paralyzed and unwilling to hold Assad accountable.” During the Bush administration in the early 1990s, U.N. Security Council approval was sought partly to improve the chances of obtaining the backing of Congress. But in 2013, Obama does not have the same luxury.
The Russian proposals for Syria may have halted the momentum for immediate U.S. strikes on Syria, but they have not eliminated the need to back diplomacy with the threat of force. There is a glaring difference between Syria’s understanding of what is required at this stage: the on-site monitoring inside Syria of their chemical weapons, and the Western understanding — the removal of these weapons from Syria and their ultimate destruction. Effective monitoring of weapons of mass destruction is difficult in any case, but in the midst of a civil war, it may prove to be completely unrealistic. Thus, the question of whether Obama has the authority to use force will remain relevant in the weeks and months ahead.