Everybody wants the US to bomb Assad, especially Al Qaeda. So, on Wednesday, the Senate Foreign Relations Committee voted 10-7, with one senator voting present, to approve a resolution authorizing force to effect a regime change in Syria.
But, hidden in the Senate’s Resolution, which they say may be cited as the “Authorization for the Use of Military Force Against the Government of Syria to Respond to Use of Chemical Weapons,” is the grant of unheard of power to this president, and by extension, any that follow him. That is, of course, assuming there is a next president.
The resolution contains, as is traditional, a whole host of “Whereas” clauses. In this case, almost all of them are about what a bastard Assad is. But, the last one is a shocker. The last whereas says that: “ Whereas the President has authority under the Constitution to use force in order to defend the national security interests of the United States.”
It does not say “in this case” or “sometimes.” It doesn’t say anything about the War Powers Act, or prior practice. It doesn’t say “from foreigners,” or “in foreign countries.” It says that the president has the power to use force to defend the security interests of the US. Wow!
Peter Shane, Jacob E. Davis and Jacob E. Davis II Chair in Law at the Ohio State University’s Moritz College of Law, summarized:
A Congressional resolution conceding, without limit, that the president “has authority under the Constitution to use force in order to defend the national security interests of the United States,” is not only constitutionally wrong, but institutionally weird. As Stephen Griffin has documented, no president would have made such a strong claim before World War II, and no president since Truman — whatever their rhetoric — has committed U.S. forces to a major deployment abroad without congressional authorization. This “whereas” clause is contrary to the Constitution’s original meaning, contrary to the War Powers Resolution, subversive of Congress’s proper role in war powers decision making, and wholly unnecessary to frame the operational provisions of an AUMF on Syria.
The Senate Foreign Relations Committee voted 10-7, with one senator voting present, to approve this resolution.
Conspicuously absent from the resolution are any means for deciding what is or is not in the security interests of the US. Given Obama’s proclivity for deciding to do things via executive action that Congress wouldn’t approve, are we to just trust that he won’t abuse this power? It is clear that the current administration has no problem abusing citizens. The NSA, the IRS, drone strikes against US citizens, etc. Why should we be inclined to trust him with the unlimited use of force?
The resolution also does not restrict the President’s use of force to foreign countries. What implication does this grant of power by the Senate have for the letter of the Posse Comitatus Act, not to mention the spirit of that law? Could Obama now decide that the VFW or the Tea Party threaten our national security and that therefor he can use force to eliminate them?
The Wednesday vote came after Sen. John McCain, R-Ariz., raised objections to an earlier draft; he wanted tougher language clarifying that U.S. policy would be aimed at changing the momentum on the ground. He voted for the final resolution, after getting two amendments added.
The final Whereas clause in the Senate bill represents an incredible abdication of congressional authority. Congress should never publicly (or privately) declaim that the president has some kind of open-ended authority under the Constitution to use force when he personally finds it necessary to defend the “national security interests of the United States.” It also violates one of the fundamental principles of our republican government, namely, the separation of powers.