Constitution Requires Obama to Accept Congress' Decision on Syria

From former Congressman Ernest Istook via Washington Times --

WASHINGTON, September 4, 2013 – By asking Congress to approve military action in Syria, President Obama is doing the right thing. But for the wrong reason, in the wrong way and based on a wrong understanding of our Constitution.

Obama mocks Congress and the nation by saying he will strike Syria even if Congress does not approve.

The President won’t admit it, but his transparent motive for seeking the vote is naked politics. Obama wants others to take the heat for his decision and he wants them to share the blame if anything goes wrong. In his usual way, even if things go as he plans, he wants to shift blame to others for the consequences and the expense. Guesstimates range from $100-million to a few billion dollars as the minimum cost.

 

But the entire debate rests on a false understanding about who should make the decision on striking Syria and how the decision should be made. 

From the White House and even on Capitol Hill, the debate ignores the plain language of how our Constitution allocates military authority between the executive and legislative branches. Usually the only two clauses mentioned are those making the President the commander-in-chief and giving Congress the power to declare war.

But in Article 1, Section 8, immediately before granting Congress that power to declare war, the Constitution also grants Congress the power “to define and punish … offenses against the law of nations.” This all-important provision routinely is ignored by Congress, by Presidents and by our media.

Not since World War II has a formal declaration of war been approved by Congress. Yet we’ve fought wars in Korea, Vietnam, Afghanistan and the Middle East. Because formal declarations of war have become archaic — rightly or wrongly— we need to discuss and follow the Constitution’s provision that says Congress, not Presidents, should decide what offenses justify military force without formally declaring war (and when the President is not defending us from actual or imminent attacks).

There is no grant of power to the President to decide what international offenses justify punishment by the United States.

The President’s entire defense role is confined to Article 2, Section 2:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.

But Article I, Section 8, enumerates six powers of Congress pertaining to national defense. These include raising and supporting armies and a navy, making the rules that govern the armed forces, and organizing, arming, and disciplining state-level militia as well as the army and navy.

And Congress is granted the authority to “define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations.”

What are “offences against the law of nations?”

The term is vague, which is why our Founding Fathers also granted Congress the exclusive power to define the term. This can include passing laws and also crafting a response to a specific international situation such as Syria. America’s sovereignty is not surrendered to some overseas tribunal to dictate to us in the name of international law.

Nor does our Constitution let the President decide. Congress is to make this decision; Congress is given the power to define international offenses as well as to punish them.

Making tough decisions like this runs counter to the political skittishness of many Senators and Congressmen. It also would reverse the dangerous trends of Congress’ abdicating its authority and of giving too much power to the executive branch and bureaucrats. The Constitution’s standard is tough but is healthy for America.

If Syrian President Assad used chemical weapons against the United States or made some other direct attack upon us, President Obama properly could launch an immediate military response as commander-in-chief.

But if Assad’s offense is that he offended international requirements—the “law of nations”—then our Constitution says Congress must decide the punishment, which might include authorizing military actions. President Obama’s constitutional duty is to abide by what Congress might decide.

By turning to Congress, President Obama did the right thing. But unless he accepts Congress’ decision on Syria, Obama has done the right thing for the wrong reason and in the wrong way.