//  4/10/17  //  Commentary

The Trump Administration’s unilateral decision to bomb Syria underscores as dramatically as possible Congress’s utter fecklessness on war powers issues.  In terms of undermining constitutional governance, the consequences of Congress’s silence in the face of presidential unilateralism are arguably more explosive than GOP senators exercising the so-called “nuclear option” to get Neil A. Gorsuch on the Supreme Court.  At least, we saw the Senators vote.  They can accordingly be held accountable.

By contrast, if Congress does nothing now to further delineate the scope of presidential authority to deploy military force, it will effectively be forfeiting, now and forever, its constitutional authority to check presidential moves short of all-out state-to-state war.

The overwhelming political imperative guiding Congress’s actions vis-à-vis presidential militarism is its apparent desire to avoid accountability.  The operative theory seems to be that, if a president succeeds, all of government can bask in his glow.  If he fails, Congress can join in the finger-pointing.  The constitutional problem, as Hal Bruff’s study of the presidency has shown, is that the “legal” precedents presidents care about most are what prior presidents did and the kinds of public and institutional responses their initiatives elicited.  For a president ambitious in the use of executive power, acquiescence betokens effective legality—“Praktisches recht” to go with “Realpolitik.” 

It is not as if we lack legislators cognizant of the problem.  When the Obama Administration sought an authorization to use military force tailored to legitimate its fight against the Islamic State and similar terrorist groups, excellent versions of potential legislation were proposed in the House by Rep. Adam Schiff (D-CA) and in the Senate by Sen. Tim Kaine (D-VA).  If you go back to the 1990s, you can even find an excellent potential redraft of the War Powers Resolution, introduced by then-Senator Joe Biden.  Of course, Congress enacted none of these.

Extending Congress’s pattern of self-abasement, with President Trump succeeding President Obama, we have the GOP’s Congressional leaders in both the Senate and House—Sen. Mitch McConnell (R-KY) and Rep. Paul Ryan (R-WI)—utterly flip-flopping on the legality of bombing Syria without congressional authorization.  They are joined in flagrant hypocrisy—really too mild a word—by Senators Orrin Hatch (R-UT) and Marco Rubio (R-FL).  Yet there is no plausible legal theory under which the unilateral bombing of Syria in response to the use of chemical warfare against its civilians could be constitutionally justified under one president and not the other.

As matters stand, the legality of the bombing is dubious as a matter of both domestic and international law.  At the moment, Harold Koh seems a dissenter from the prevailing expert consensus in defending the bombing as consistent with the UN Charter, a treaty to which the U.S. is party and which is therefore part of the “supreme law of the land” under the U.S. Constitution.  Yet his theory of domestic legality seems to turn on the correctness of his conclusion about international law.

Moreover, as well explained by Jack Goldsmith, any theory of U.S. law that might be offered to legitimate the bombing’s constitutionality would seem to go beyond even the capacious self-identified limits the executive branch had previously offered for unilateral presidential military action.  That’s because, even if the Syria bombing were justifiable as a humanitarian intervention, prior such interventions were justified in part by the U.S. interest in maintaining the credibility of international institutions to which we belong and which also participated in or precleared the intervention, that is, the Security Council and NATO.  The only interests so far mentioned by the Trump Administration, “protecting regional security and in upholding or enforcing important treaty norms—will always be present when the President is considering military intervention.”  As Professor Goldsmith writes: “Taken alone—and they are all we have here—these interests provide no practical limitation on presidential power.”

Legality and wisdom are not synonymous.  Persuasive argument that the bombing was lawful would not prove its desirability.  And to my mind, a military intervention could in theory be simultaneously unlawful but just.  Yet it is hard to reach even the latter conclusion so far with regard to the Syria bombing because the Trump Administration has offered no strategy as to next steps. And as one Senator has said:

A vital national security risk is clearly not at play, there are just too many unanswered questions about our long-term strategy in Syria, including the fact that this . . . is utterly detached from a wider strategy to end the civil war there . . . [This could be] a strike so narrow as to be a mere demonstration.

(Oh, wait – that was Sen. McConnell discussing President Obama’s bombing threat in 2013. But the point is a good one.)

As I have observed elsewhere, the expansion of authority by presidents works as a one-way ratchet.  Even those who approve of the Syria bombing should realize that future presidents will be tempted to embrace their predecessors’ audacious claims to power as sources of their own legal authority.  They will not ignore this episode.  If Congress is ever again to play a significant role in national deliberations over the deployment of military force, the time to create a new framework is now.


Versus Trump: Versus Whitaker, In-Depth

12/6/18  //  Uncategorized

On this week's episode of Versus Trump, the gang is re-united, and they discuss the Supreme Court motion contending that Matthew Whitaker was not legally appointed as Acting Attorney General. Listen now!

Easha Anand

San Francisco

Charlie Gerstein

Civil Rights Corps

Jason Harrow

Equal Citizens

Are We All Textualists Now?

12/5/18  //  Commentary

Trump's executive order closing the government today out of respect to George H.W. Bush violates the plain text of a federal statute. If we really were all textualists now, that would be taken seriously.

Neil J. Kinkopf

George State University College of Law

Thoughts on Roberts and Trump

11/26/18  //  Quick Reactions

We have at once a highly political appointment process and a strong judicial ethos of being above politics.

Zachary Price

U.C. Hastings College of the Law