Friday, December 13, 2013
Joseph R. Reisert
President Barack Obama took a small step away from the "imperial" presidency on Saturday, when he announced that he would seek the approval of Congress before ordering any military strike against Syria.
It was only a small step, because Obama insisted in his statement that he believes he has the authority to order limited attacks in order to "hold the Assad regime accountable for the use of chemical weapons" without "specific congressional authorization," but it was a welcome development nonetheless.
The Constitution specifically gives Congress primary authority over the military. Not only does Congress alone have the power "to declare war," Congress also has the authority "to lay and collect taxes" that "provide for the common defense," as well as the power to "raise and support armies" and to "provide and maintain a navy."
By contrast, the Constitution says relatively little about "the executive power," which it entrusts to the president. It names the president "commander in chief of the army and navy of the United States," requires him to pledge that he will "preserve, protect, and defend the Constitution of the United States," and imposes on him the duty to "take care that the laws be faithfully executed."
In the earliest days of our republic, the president's power to authorize military action was very limited. In 1799, to keep the United States out of European wars, Congress forbade U.S. ships from sailing to any port controlled by the French and authorized the president to give orders to seize any ship that did so. President John Adams issued orders, directing the navy to seize ships bound to or from any French port, on the theory that ships departing from French ports previously must have sailed into those ports, in violation of the act of Congress.
Nevertheless, when the owner of a ship seized by the navy on its way from a French port brought his case to the U.S. Supreme Court, the Court ruled (in the 1804 case of Little v. Barreme) that the president's order was unlawful, because Congress had specifically authorized the seizure of ships only on their way to French ports.
Chief Justice John Marshall reasoned that the president's power was simply to carry out the will of Congress. That President Adams' orders may have proposed a reasonable means of accomplishing the larger goals Congress probably had in mind was irrelevant. Their job was to say what was to be done; his job was to execute -- to get the job done.
In the crisis of the Civil War, President Abraham Lincoln took a series of bold, unilateral actions to save the Union and thus defend the Constitution against the rebellious South. He suspended the writ of habeas corpus, he ordered the navy to blockade southern ports, and he approved the seizure of private ships trying to pass the blockade.
To be fair, Lincoln convened an early session of Congress, which eventually gave its blessing to Lincoln's actions. Subsequent presidents have enjoyed much greater authority over the military than even Lincoln claimed, mainly because the Congress has allowed it.
As the United States became first a great power, and later a superpower, the Congress has entrusted presidents with ever more discretionary authority -- ultimately including authority over our nuclear weapons arsenal. Congress has given presidents such authority because a single leader will always be able to act more quickly and decisively than a large legislature.
Especially since World War II, we have been accustomed to watching our presidents unilaterally initiate military action, as President Ronald Reagan did when he ordered the bombing of Libya or the invasion of Grenada, as President Bill Clinton did when he ordered the bombing in Serbia and as Obama did earlier in his presidency, when he authorized the use of military force against Libya.
In light of that history, Obama's claim that he has the power to order air strikes against Syria without the express approval of Congress has some validity. He can say that Congress has implicitly approved such action, by its past acquiescence in similar ventures and by its support for the sorts of military personnel and equipment that make such actions possible.
But especially in a case like that presented by Syria, where there is no immediate threat to America's Constitution or national security, and where the issues are so complex, the country will be better served if the Congress takes its responsibility seriously and gives Obama clear instructions about what military actions, if any, it wills for him to execute.
Joseph R. Reisert is associate professor of American constitutional law and chairman of the department of government at Colby College in Waterville.