“The fact that presidents have done something does not necessarily make it right or constitutional.”

Prof. Chris Edelson appeared on Sinclair television affiliates last night again.  Check out the video for some compelling sound bites like “even the war powers resolution which says the president can use military force if the US is attacked or directly threatened – does not apply in this case, even if it’s been used in the past.”

 


American Constitution Society New Blog Post on Obama and Syria

Check out a new blog post today about Obama, Syria and the rule of law.


LA Times’ Paul Whitefield: American University professor Chris Edelson put it so well

Thanks Paul Whitefield at LA Times for recommending Chris Edelson’s Op-Ed on Syria.  To read Paul’s fill piece visit here – or see excerpt below:

OK, John Kerry, you convinced me: Let’s go bomb Syria! Just kidding.

Like many Americans, I have serious reservations about this country getting involved in that country’s nasty civil war.

Still, the sight of the secretary of State addressing senators about the Syrian crisis and taking questions Tuesday was, well, a sight for sore eyes. It’s about time that Congress took seriously the power invested in it by the Constitution to take this nation to war.

As American University professor Chris Edelson put it so well in his Aug. 30 op-ed in The Times,“Obama and the power to go to war”:

The president needs congressional authorization for a military attack that is not related to an actual or imminent threat to the United States. What is happening in Syria is an ongoing atrocity. Tens of thousands of people have been killed — some, it appears, by the Bashar Assad government’s use of chemical weapons. This is a moral outrage. But it is not a direct threat to the United States, and the Obama administration does not suggest otherwise.

And that sums it up pretty neatly. Americans don’t care for Assad; they certainly don’t accept the use of chemical weapons against innocent civilians. But they also don’t see how this poses a direct threat to our security. And after Iraq, and Afghanistan (and let’s not forget Somalia, and the Balkans, and heck, even Lebanon in the 1980s), well, let’s just say that being the world’s policeman is getting old.


Local Washington DC CBS News Affilate on 8/30 re: Syria

Chris Edelson makes morning talk show appearance alongside USA Today about Syria and how Obama should consult Congress.


latimes.com Op-ed Aug 30: Obama and the power to go to war

The Constitution is clear: The president must make his case to Congress.

By Chris Edelson

August 30, 2013

With the Obama administration planning what it describes as limited military strikes to punish Syria for its alleged use of chemical weapons, public discussion over the legality of U.S. action has addressed mainly questions of international law. Commentators debate whether the United States may take action without authorization from the U.N. Security Council. That is an important question. But debate within the United States typically ignores a separate, more fundamental question: Does the Constitution authorize President Obama to take military action against Syria without congressional approval?

When he was running for president in 2007, Obama, a former constitutional law professor, told reporter Charlie Savage that “the president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” That was an accurate description of U.S. law.

The drafters of the Constitution assigned Congress the power to declare war. Records from the constitutional convention in Philadelphia show the framers recognized that, in an emergency, the president could act unilaterally to repel a sudden attack against the United States. This was a consensus view. Even Alexander Hamilton, who had the broadest view of executive power, acknowledged that under the Constitution, “it is the peculiar and exclusive province of Congress, when the nation is at peace, to change that state into a state of war; … it belongs to Congress only, to go to war.”

As Louis Fisher of the Constitution Project concludes: “The framers placed in Congress the authority to initiate war because they believed that executives, in their search for fame and personal glory, had a natural appetite for war and military initiatives, all of which inflicted heavy costs on the interests and liberties of their people.”

As candidate Obama recognized in 2007, the president needs congressional authorization for a military attack that is not related to an actual or imminent threat to the United States. What is happening in Syria is an ongoing atrocity. Tens of thousands of people have been killed — some, it appears, by the Bashar Assad government’s use of chemical weapons. This is a moral outrage. But it is not a direct threat to the United States, and the Obama administration does not suggest otherwise.

In order to find domestic authority for its actions, the administration would probably cite the War Powers Resolution of 1973, which seems to provide authority for the president to take the nation to war for up to 60 days or, in some circumstances, 90 days, without congressional approval as long as the president reports on his actions to Congress. The problem, however, is that the resolution — a legislative act — cannot trump the Constitution.

Since 1973, presidents and advocates of broad presidential power have argued that the resolution unconstitutionally limits the president’s ability to use military force. They are right that it is unconstitutional, but their reasoning is backward. The resolution is unconstitutional because it gives the president too much power by assigning some of Congress’ war power to the president. It does not provide legitimate authority for the Obama administration to order military action in Syria.

It is true that presidents — including Obama in the case of Libya two years ago — have ordered military action without congressional approval. The most notorious case is President Truman’s unilateral decision to send U.S. troops to the Korean peninsula. But past presidential practice cannot amend the Constitution.

None of this means the U.S. government is powerless to act. The Constitution provides a procedure: Congress can authorize the use of military force. If Obama believes military action in Syria is in the national interest, he should make his case to Congress and the public, as more than 100 lawmakers have urged.

Despite the horror of what is happening in Syria, history teaches that there is good reason for Congress and the public to ask questions. Military operations intended to be limited may turn into protracted action. Military strikes intended to be “surgical” may affect civilians. Military action against the abhorrent Assad regime may unintentionally help opponents of it, some of whom have ties to terrorist groups. As candidate Obama would have recognized in 2007, that is exactly why unilateral presidential action would be neither wise nor constitutional.

Chris Edelson is an assistant professor of government in American University’s School of Public Affairs, where he teaches classes on the Constitution and presidential power. He is the author of the forthcoming book, “Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror.”

Copyright © 2013, Los Angeles Times


New Book Coming Winter 2013 – Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror

Foreword by Louis Fisher. The University of Wisconsin Press.  Available for pre-order now.

Can a U.S. president decide to hold suspected terrorists indefinitely without charges or secretly monitor telephone conversations and e-mails without a warrant in the interest of national security? Was the George W. Bush administration justified in authorizing waterboarding? Was President Obama justified in ordering the killing, without trial or hearing, of a U.S. citizen suspected of terrorist activity? Defining the scope and limits of emergency presidential power might seem easy—just turn to Article II of the Constitution. But as Chris Edelson shows, the reality is complicated. In times of crisis, presidents have frequently staked out claims to broad national security power. Ultimately it is up to the Congress, the courts, and the people to decide whether presidents are acting appropriately or have gone too far.

Drawing on excerpts from the U.S. Constitution, Supreme Court opinions, Department of Justice memos, and other primary documents, Edelson weighs the various arguments that presidents have used to justify the expansive use of executive power in times of crisis. Emergency Presidential Power uses the historical record to evaluate and analyze presidential actions before and after the terrorist attacks of September 11, 2001. The choices of the twenty-first century, Edelson concludes, have pushed the boundaries of emergency presidential power in ways that may provide dangerous precedents for current and future commanders-in-chief.

Available for pre-order now.