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What if Congress does not authorize the use of force against Syria?

In his address yesterday, President Obama indicated that he would seek Congressional authorization for military action against Syria. But he also stated: “I believe I have the authority to carry out this military action without specific congressional authorization . . . .”

So, will happen if Congress does not provide this authorization? Will the President act nonetheless? And would such action be lawful under the Constitution?

It seems clear to me that it would be a domestic political disaster if the President used force in the face of a Congressional refusal to authorize force. That having been said, it seems to me that it would be constitutional for the President to use force IF such use of force meets certain requirements. As I have noted previously:

I believe that the Constitutional authority of the president to use military force without Congressional authorization does extend beyond circumstances of “actual or imminent threat.” Under Article II of the Constitution, the President is the “commander-in-chief” of the military. I would argue that this means that the president has the authority to use force in short, quick operations that are undertaken in the interests of national or international security. In the past, presidents have many times used force for such operations that involve a minimal amount of force and are of relatively limited duration. In most of those occasions, Congress has acquiesced in the presidents’ actions.

This would mean that if the US were to launch quick off-shore cruise missile attacks or even limited air strikes, such use of force would be constitutional. If, however, the US were to place America troops on the ground or otherwise place American troops at risk for a longer period of time, I would argue that Congressional authorization would be needed.

But in addition to it being a political disaster if the President were to use force in the face of Congressional opposition, it would also seem likely that some members of Congress may bring suit against the President. Such suits have happened in previous conflicts. In Kosovo, for example, Congressman Tom Campbell and several other members of Congress brought suit against President Clinton because there had been no explicit authorization of the Kosovo campaign. In Campbell v. Clinton, the DC Circuit Court of Appeals ruled that the members of Congress did not have standing to bring suit. But in that case, President Clinton did no seek this form of Congressional authorization and Congress supported the funding of the operation. And as the DC Circuit explains:

On April 28, Congress voted on four resolutions related to the Yugoslav conflict:  It voted down a declaration of war 427 to 2 and an “authorization” of the air strikes 213 to 213, but it also voted against requiring the President to immediately end U.S. participation in the NATO operation and voted to fund that involvement.

So what if Congress explicitly refuses to authorize the action and the President uses force nonetheless, would there be standing for Congress or members thereof to bring suit?

The Supreme Court has never ruled that federal legislators have standing– nor has it ruled that they do note. The closest the Court came was in Raines v. Byrd. In that case the Court suggest that if there were a basis for federal legislators to have standing, it would be the nullification of a vote. Citing the rules in a previous case dealing with a suit by state legislators in Kansas, Coleman v. Miller, the Court noted:

It is obvious, then, that our holding in Coleman stands (at most, see n. 8, infra) for the proposition that legislators whose votes would have been sufficient to defeat (or enact) a specific legislative act have standing to sue if that legislative action goes into effect (or does not go into effect), on the ground that their votes have been completely nullified.

It could certainly be argued that if Congress rejects the authorization to use force and the President uses force in Syria, Members of Congress could claim that “their votes had been completely nullified.”

Of course, since the Court did not definitively make this the standard– note the “at most,” it is possible that even if the authorization is voted down, courts may rule that federal legislators qua legislators may never have standing. As Catherine Lotrionte and I have previously written:

In Raines, the Supreme Court did not rule that separation of powers concerns would prevent federal legislators from suing, but such a conclusion would be quite consistent with the opinion of the Court. It is noteworthy that the Court spent a great deal of time exploring the history of disputes between the Branches. The Court explained that “it is evident from several episodes in our history that in analogous confrontations between one or both Houses of Congress and the Executive Branch, no suit was brought on the basis of claimed injury to official authority or power.” n355 The Court then examined a number of instances where the President or a member of Congress had been “injured” by an allegedly unconstitutional act but neither Branch had sued. The Court concluded this discussion with a quotation from Justice Powell’s concurrence in United States v. Richardson:

The irreplaceable value of the power articulated by Mr. Chief Justice Marshall . . . lies in the protection it has afforded the constitutional rights and liberties of individual citizens and minority groups against oppressive or discriminatory government action. It is this role, not some amorphous general supervision of the operations of government, that has maintained public esteem for the federal courts and has permitted the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests. n356

In short, courts, as the only non-elected Branch of government, n357 would be overstepping their role if they were to  [*281]  engage in a review of the intra- and inter-Branch disputes unless somehow such disputes affected rights of private individuals. As a consequence, even if the House or the Senate were to authorize the suit or be a party to the suit, these fundamental separation of powers concerns would remain and would counsel against granting standing. (footnotes accessible through LEXIS)

But we shall see what happens.

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Welcome! Who am I?

Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.