Obama Won’t Go To Congress, Because History Has Taught Him He Doesn’t Have To

Presidents have gotten away with ignoring Congress when it comes to foreign military adventures for a very long time.

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Notwithstanding the polls and the arguments in favor of it, Daniel Larison doesn’t think that President Obama will bother seeking Congressional approval for any military action against Syria:

The answer is that he doesn’t think he needs to go to Congress for the same reason that he didn’t think he needed to do that two years ago. If this White House could concoct an absurd legal theory that eight months of bombing another country didn’t constitute “hostilities,” is it likely to think that a week of cruise missile strikes requires Congressional approval? Obama certainly forgot the Constitution two years ago, and for a lot longer than a moment, and he appears to be ready to forget it again. He does this because he can, and because he assumes that no one will hold him accountable for it.

It’s only “dangerous territory” if there are serious consequences, and Obama’s experience from two years ago tells him that there won’t be. In other words, he won’t pay that respect because he assumes he can get away with not paying it, and he has yet to be proven wrong.

It’s really no surprise that President Obama has reached this conclusion given the fact that American history is full of examples of Presidents who have undertaken punitive military expeditions, or sent American forces off on extended deployments in dangerous lands, without seeking prior approval from Congress virtually from the beginning of the Republic. No less a President than Thomas Jefferson arguably started the precedent when he committed American naval forces to a punitive expedition against pirates operating out of what is now Libya who were attacking American shipping with impunity, although in that case he did at least seek approval from Congress for the expenditures needed for the mission. America’s bloodiest war, the Civil War, was fought without any declaration of war at all and without any prior Presidential approval. In subsequent years, various American Presidents sent American forces off to locations in Latin America and the Caribbean to take sides in an ongoing conflict or otherwise influence the internal politics of one of our neighbors to the south.

During the Cold War, Presidents became even more willing to engage in military action without prior Congressional approval in matters ranging from major conflicts like Korea and Vietnam1 to minor actions such as the deployment of Marines to Beirut, the invasions of Panama and Grenada. The First Gulf War, meanwhile, was technically authorized by Congress but given that the vote occurred mere days before the air campaign began at a time when American and allied forces were literally waiting in the desert of Saudi Arabia to engage the enemy, it can hardly be said to have been deliberative in any way. Under President Clinton, we saw the U.S. military deployed to Somalia and the Balkans to engage in what might fairly be called the first “humanitarian” wars as well as military action against targets in Iraq, Afghanistan, and Somalia related to what we would soon come to call the “War On Terror.” Indeed, the seriousness of the September 11th attacks was made clear when President Bush formally asked Congress for authorization to pursue those responsible for the attack, as well as any nation giving them safe harbor. That Authorization for Use of Military Force Against Terrorists was passed overwhelmingly just three days after the attacks, remains in effect to this day, and has served as the justification for everything ranging the Afghanistan War itself to U.S. drone programs that have operated in nations such as Pakistan and Yemen as well as in the Horn of Africa. Finally, just two years ago, President Obama sent American forces to aid the U.N./NATO mission in Libya without seeking authorization from Congress and, as Larison noted, did not suffer politically for it.

For the most part, these assertions of power by Presidents of both political parties have been acceded to by Congress, which has over the years acted more as a rubber stamp than a real check on Presidential power. There was some effort to reign in Presidential war powers in the wake of the Vietnam War and President Nixon’s decision to spread that war into Cambodia with the passage of the War Powers Act. However, every President since Nixon has taken the position that the act is essentially a nullity even when they act in manners that are required under the law. More importantly, some scholars have suggested that the War Powers Act actually expanded Presidential war powers because it created a number of circumstances under which Presidents could commit American forces to a hostile area for as long as 60 days, or longer under some circumstances, and then essentially dare Congress to utilize its power of the purse to deny funding for those troops once they were already in theater. Even in cases of controversial actions where Congress has been controlled by the party opposing the President, no Congress has ever taken a President up on that particular dare. Additionally, numerous Congresses have failed to seriously question the wisdom of continuing ongoing military actions.

In a piece written when the debate over committing forces to the Libya mission was being debated in the press, Matthew Yglesias correctly pointed out the dynamic that has played out between Congress and the President in these situations:

[W]hile the trend toward undeclared military incursions is often described as a kind of presidential “power grab” it’s much more accurately described as a congressional abdication of responsibility. Even if you completely leave the declaration of war business aside, congress’ control over the purse strings still gives a determined congressional majority ample latitude to restrain presidential foreign policy. The main reason congress tends, in practice, not to use this authority is that congress rarely wants to. Congressional Democrats didn’t block the “surge” in Iraq, congressional Republicans didn’t block the air war in Kosovo, etc. And for congress, it’s quite convenient to be able to duck these issues. Handling Libya this way means that those members of congress whowant to go on cable and complain about the president’s conduct are free to do so, but those who don’t want to talk about Libya can say nothing or stay vague. Nobody’s forced to take a vote that may look bad in retrospect, and nobody in congress needs to take responsibility for the success or failure of the mission. If things work out well in Libya, John McCain will say he presciently urged the White House to act. If things work out poorly in Libya, McCain will say he consistently criticized the White House’s fecklessness. Nobody needs to face a binary “I endorse what Obama’s doing / I oppose what Obama’s doing” choice.

In other words, this is as much a conscious failure to act on the part of Congress as it is a power grab on the part the Executive Branch. Whatever the cause, though, its something that has a long history in the United States notwithstanding what the particulars of the Constitution might say about war powers and the responsibilities of the Legislative Branch of the government. Yes, President Obama learned a lesson from Congressional inaction in the wake of Libya, but its a lesson that almost every President has learned, certainly since the end of World War Two, and its one that has granted to the Executive wide ranging powers that, arguably, the Constitution never intended him (or her) to have.

Update August 31, 2013: Well, to the surprise of many observers, President Obama has proven both Larison and I wrong and will indeed seek Congressional authorization. I’ll have observations about this move, and how this might proceed in Congress itself, later this weekend.

1 Congress did pass the Gulf of Tonkin Resolution in 1964, but American forced had already been involved in engaging the enemy at that point, ant the United States was involving itself in Vietnam’s conflict long before that vote.

FILED UNDER: Barack Obama, Law and the Courts, Politicians, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Dave Schuler says:

    Compare the approval ratings. If President Obama acts without making a convincing case to the American people (who as of today are not convinced) and does not seek Congressional approval, he is really putting himself out on a limb.

  2. legion says:

    It’s not the “not going through Congress” part that concerns me; it’s the “nobody has any idea what the target, intent, or desired end-state of a military option would be” aspect of this clusterf*ck.

  3. C. Clavin says:

    I am decidedly against getting involved in Syria…
    But as to the topic of this post…you cannot reasonably expect anyone to give up power unless they are forced to.
    You cannot reasonably expect Congress to force Obama to give up power; they are on vacation…having to work a full 126 days a year, with only 239 days off, not a single full five day work week, and absolutely no weekends, can be very taxing.
    Of course when they get back they have to schedule their 40th attempt to repeal Obamacare.
    Executive power will continue to go unchecked.

  4. Saw a comment elsewhere to the effect that it’s odd that the UK Parliament may have more control over when the US goes to war than the US Congress does.

  5. Just Me says:

    Dave I doubt his approval would take much of a hit. Some people might disapprove but not to an extent they would desire any accountability or even opt to vote differently. I think those most opposed to the war are equally or more so opposed to the GOP so while they may disapprove they aren’t going to show it at the ballot box-not to mention we are still a good year out from the mid terms and Obama has time.

    I also have serious doubts the media is going to challenge him on the issue-they will probably ask him about his new dog instead. The media covers Obama with kid gloves and they aren’t going to challenge him on this.

  6. Tyrell says:

    Here are some options:have a summit conference. Send in Sec. Kerry and Hagel to work out some cease fires, curfews, pull backs, cooling off period, and timelines. Give some requirements to both sides sides with deadlines and clear consequences if they do not meet the consequences. No chemical weapons, heavy artillery, machine guns, missiles, car bombs, grenades, napalm, or flame throwers. Russia, China, and Iran must stay out. If both sides follow the rules, then we stay out.

  7. al-Ameda says:

    @Just Me:

    The media covers Obama with kid gloves and they aren’t going to challenge him on this.

    Of course, he has been given a free pass on all kinds of issues – Benghazi, NSA Data Mining, the IRS investigation of NPO status – very little coverage at all.

  8. Matt Bernius says:

    @Dave Schuler:

    If President Obama acts without making a convincing case to the American people (who as of today are not convinced) and does not seek Congressional approval, he is really putting himself out on a limb.

    Even if this was the case, the question is “so what?” Short of impeachment, Obama is safe for the next three years and isn’t standing for re-election. He passed his “signature” legislation during the first two years of his first term. And that legislation is very unlikely to be repealed.

    At worst, a significant drop in approval means a loss of legislative influence. However, as is often asked, how much legislative influence does a lame-duck president have? Especially when the current make-up of Congress is predisposed to grid lock.

    The worst possibility of a sharp drop in approval is that the Republicans might win the White House in 2016.

    This is another way in which the UK’s Parliamentary system is fundamentally different. Loss of faith in the Prime Minister can ultimately trigger new Parliamentary Elections.

  9. PD Shaw says:

    I think its possible to be too cynical about these issues (and also far too technical if one complains about Congressional authorizations to use military force that fall short of declaring war) The President should still be expected to give a justification for not needing Congressional approval, whether it be an emergency, acts falling below some threshold for “war,” purely defensive action, performance of a treaty obligation, etc. This provides a vehicle for the public to judge the President’s conduct and guidance to Congress on what action to take, if it chooses.

  10. @Matt Bernius:

    At worst, a significant drop in approval means a loss of legislative influence. However, as is often asked, how much legislative influence does a lame-duck president have? Especially when the current make-up of Congress is predisposed to grid lock.

    This is a good point. Indeed, Obama is slowly approaching the point where his legislative influence will start to decline in any case because of his “lame duck status.” For better or worse, he will pretty much officially be there after the 2014 elections, especially if (as seems likely) the GOP holds onto the House.

  11. OzarkHillbilly says:

    @Dave Schuler:

    he is really putting himself out on a limb.

    Only if at the end of that limb he is seen to be pushing dead American service members off it. Americans don’t care about dead Syrians. They don’t care about the fiscal costs of such an action. They only care if we get sucked into a larger miasma. I know. I’m one of them.

    (In truth, I wish we would not get involved as I see no good coming of it. That said, I can not get all that upset by the inevitability of it all.)

    As to Doug’s point, I said this yesterday. Obama is the CIC. Congress long ago abdicated their responsibilities with the War Powers Act. What Doug touches on that I had not even considered, was how well the status quo serves Congress. They don’t have to do a Dog Damned thing, and yet they are free to criticize whatever the President does, which plays well at election/fund raising time.

  12. edmondo says:

    @Doug Mataconis:

    If he attacks Syria, he’ll need to start worrying about holding onto the Senate in 2014. The House will be lost until at least 2022

  13. dazedandconfused says:

    It would be not completely impossible, but there would be some difficulties for Boehner exploiting this for political gain. He can demand Obama get congressional approval right now. I believe he must admit Obama “consulted” with him, and I saw something that reported Boehner agrees that full congressional approval is not required.

    If he doesn’t raise a stink immediately, it might be difficult to raise credible stink later.

  14. Just Me says:

    @edmondo:

    How so?

    I don’t particularly see this as making anyone angry enough to vote the opposition into power. They may stay home but Obama supporters aren’t likely to head to the polls and vote for the GOP candidate.

    I do think this applies to Obama bombing Syria. If he commits ground troops all bets are off-especially if those ground troops start dying. I don’t think Obama is dumb enough to commit ground troops here-especially without some support from congress.

    Bombs and drones won’t hurt him that much.

  15. An Interested Party says:

    With all the talk of the President “painting himself into a corner” it would seem that Congressional Republicans are the ones who have done that–by obstructing just about anything the President wants to do, what reason does he have to consult them on anything and what can they do to him? Impeach him? Good luck with that…

  16. just 'nutha ig'rant cracker says:

    @Dave Schuler: What are people going to do? Not reelect him?

  17. just 'nutha ig'rant cracker says:

    @edmondo: Based on what I have been reading about redistricting and percentages of safe seats, my conclusion is that “the House [being] lost until 2022” seems to be more the status quo than a cause/effect phenomenon. So what’s the actual downside to intervention? Losing control of the Senate (which may or may not happen anyway)?

    Understand, I’m opposed to intervention a much as (if not more than) the next guy. I just don’t see any political consequences.

  18. Jenos Idanian #13 says:

    A lot of us said that Obama’s wonderful adventure in Libya would have very bad long-term consequences. I don’t think any of us knew just how many they would be. Just off the top of my head:

    1) The loss of US credibility to persuade bad actors to reform and be rehabilitated. The Bush administration persuaded Kaddafi to give up his WMD programs, rat out his old terrorist buddies, and pay reparations for some of his misdeeds, in exchange for us pledging that we wouldn’t take him out like we did Saddam. That pledge lasted until Obama had his first opportunity, and any other dictators who might be considering changing their ways would be idiots to trust Obama.

    2) Al Qaeda scores its biggest victory against the US since the first 9/11 terrorist attack.

    3) The War Powers Act is not repealed, not defeated in court, but gutted because Obama simply said it didn’t apply. Other presidents complied with it, but saying they were acting “consistent with” and not “in compliance with,” but Obama just said it didn’t apply because he said it didn’t.

    4) Obama didn’t make his case for military action to the American people or Congress, but only bothered with the consent of NATO and the Arab League. He had time for them, but not for us.

    5) A relatively stable Arab state is now in full chaos.

    6) Obama now feels fully empowered to take military action against sovereign nations entirely on his own, without any involvement from Congress or informing the American people.

    Meanwhile, I’m sure The Usual Suspects (meaning, the mainstream media and some of the Kommentariat here, but not the site’s authors) have most likely already started writing their pieces about how courageous Obama was to Do The Right Thing and order the attacks on Syria, even though it meant standing alone while no one else had the moral courage and resolve to Do What Needed To Be Done…

  19. al-Ameda says:

    @Jenos Idanian #13:

    1) The loss of US credibility to persuade bad actors to reform and be rehabilitated. The Bush administration persuaded Kaddafi to give up his WMD programs, rat out his old terrorist buddies, and pay reparations for some of his misdeeds, in exchange for us pledging that we wouldn’t take him out like we did Saddam. That pledge lasted until Obama had his first opportunity, and any other dictators who might be considering changing their ways would be idiots to trust Obama.

    Bush has credibility with respect to WMD programs? You’re kidding, right?

    We went to war in Iraq over a false pretext concerning WMDs. In fact once inspections started to show that there were no WMDs the Bush administration rushed to war. And as you know, we lost 4,000 lives, spent over $1 Trillion (completely deficit-financed), 125,000 Iraqi civilians died, and power in the region was shifted to Iran.

    Yes, Bush certainly showed the world how it should be done.

  20. Jenos Idanian #13 says:

    @al-Ameda: That’s not what I said. Stop being so effing stupid. I thought you were at least marginally smarter than the idiots like Cliffy and wr, but you’re seriously making me reconsider.

    Or did you just get twitchy because you haven’t had an excuse to pop off another ZOMG!! BusHitlerEvil!!!! screed, and couldn’t control yourself?

  21. al-Ameda says:

    @Jenos Idanian #13:

    Or did you just get twitchy because you haven’t had an excuse to pop off another ZOMG!! BusHitlerEvil!!!! screed, and couldn’t control yourself?

    While you’re trying to say that the Obama Administration’s actions in Libya were, historically, a blunder of the highest order, I was pointing out – in a reality-based manner – that the Bush Administration’s decision to use WMDs as a questionable pretext to garner support for an unnecessary war, may well turnout to be historically a serious blunder, less in magnitude than say expanding the war in Vietnam, but far greater than that of supporting the Libyan opposition.

    Feel free to “BusHitlerEvil!!!!” me (by the way, I do not find most Buses to be evil, perhaps the 43 Bus, but that’s just you projecting).

  22. Stonetools says:

    Heh, that was dead wrong.

  23. Eric Florack says:

    The obviously incorrect statement, after the fact is amusing, but perhaps it should be said in Doug’s defense, that it was a logical conclusion to draw.

    Unless and until, that is, someone reminds us all that both Biden and Obama threatened impeachment against Bush for doing exactly what Doug said would happen in the case of Obama.

    And at the moment, my reckoning is that such a vote willnot gain the approval he seeks.

  24. al-Ameda says:

    @Eric Florack:

    Unless and until, that is, someone reminds us all that both Biden and Obama threatened impeachment against Bush for doing exactly what Doug said would happen in the case of Obama.

    Of course you’ll soon be recommending that Obama be impeached for asking Congress to decide, right?

  25. Eric Florack says:

    @al-Ameda: Not at alll.
    There are a number of other reasons, however. There ahve been a fair number of reasons even before this was on the table.

    I do suggest that had he attacked without congressional approval, he would have been impeached…. on his own words.

    And knowing that, and knowing that he hasn’t a snowballs chance of getting that approval, he has now arranged something for Democrats to use against the GOP in the next election, instead of taking it on the chin.

  26. al-Ameda says:

    @Eric Florack:

    And knowing that, and knowing that he hasn’t a snowballs chance of getting that approval, he has now arranged something for Democrats to use against the GOP in the next election, instead of taking it on the chin.

    So Republicans are not confident that they can vote against taking action against Syria without there being negative electoral consequences?