LA Times discussion of Obama’s speech last night featuring Edelson commentary
Posted: September 11, 2013 | Author: profchrisedelson | Filed under: Syria | Tags: Barack Obama, Congress, Obama, Syria, United States, United States Congress, United States Constitution | Leave a commentRead it here or below.
Less than two weeks ago, the Obama administration appeared determined to take military action against Syria. A familiar pattern seemed to be playing out. Since World War II, presidents have claimed unilateral power to use military force without authorization from Congress. Obama had already followed this precedent himself when he ordered military action in Libya in 2011 without seeking approval from Congress.
Despite the fact that unilateral presidential military action can only be justified under the Constitution when the president is responding to an attack or imminent attack against the United States, presidential practice has stubbornly asserted itself as precedent — in part because Congress has consistently failed to check presidential authority.
This time, surprisingly, it was different. In the speech Obama gave Tuesday, he acknowledged that, given the fact that the United States faced and faces no imminent threat from Syria, the better course was for him to go to Congress. Congress deserves credit for asserting itself — more than 100 legislators signed on to letters insisting that the president not act alone, creating mounting pressure on Obama to rethink his approach. The president also deserves credit for recognizing that going to Congress was the right thing to do.
The speech showed why Obama was right to go to Congress — as he emphasized, diplomatic efforts have begun to show promise. When he announced his decision to seek legislative approval, critics argued that he was undermining the power of the presidency. John Yoo, a Department of Justice lawyer in the George W. Bush administration who has championed broad, essentially unchecked, presidential power, insisted that only the president could take the quick, decisive military action required. As Obama observed Tuesday, though, speedy action was not what was needed. Sometimes, it is better not to act. The benefit, in this case, was that diplomacy has been given a chance to work. If nothing else, the chain of events over the last 10 days should put to rest the argument that presidents are best positioned to make decisions about the use of military force because they have the ability to act quickly.
As Congress has begun to consider a use-of-force resolution authorizing military action in Syria, some have asked what Obama would do if lawmakers said no. He has said — and he said again Tuesday night — that he believes he has the authority to act alone (though he is wrong about this, in my view). However, Obama said that he has asked Congress to postpone voting on the pending legislation. This is a wise move that ought to divert attention from the question of what he might do if Congress votes no. As the president suggested, putting off voting in Congress gives more time for diplomatic efforts to play out. It also provides additional evidence that those like Yoo who insist on the value of speedy presidential action in the context of war are wrong. Outside of the emergency context, unilateral presidential military action is neither wise nor constitutional. Sometimes, immediate military action isn’t the right choice.
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.”
Professor Edelson on Saudi TY re: Syria
Posted: September 10, 2013 | Author: profchrisedelson | Filed under: Syria, Uncategorized | Tags: Barack Obama, Bashar al-Assad, Edelson, Obama, Obama administration, Syria, United States, YouTube | Leave a commentLast week, Saudi TV interviewed Professor Edelson re: Obama and Syria. It can be viewed here on YouTube.
American Constitution Society New Blog Post on Obama and Syria
Posted: September 6, 2013 | Author: profchrisedelson | Filed under: Syria | Tags: Barack Obama, Bashar al-Assad, Chemical weapon, Chris Edelson, Government, Middle East, Obama, Obama administration, Syria, United States, United States Congress, United States Constitution | Leave a commentCheck out a new blog post today about Obama, Syria and the rule of law.
Local Washington DC CBS News Affilate on 8/30 re: Syria
Posted: September 1, 2013 | Author: profchrisedelson | Filed under: Syria | Tags: Barack Obama, Bashar al-Assad, Chemical weapon, Congress, Middle East, Obama, Syria, United States, United States Congress | Leave a commentChris 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
Posted: August 30, 2013 | Author: profchrisedelson | Filed under: Syria | Tags: Barack Obama, Congress, Middle East, Obama, Obama administration, Syria, United States, United States Congress, War Powers Resolution | Leave a commentThe 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.”
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