Syria and the Constitution: A Response to Jonathan Godoy

By: Jordan Reese

Mr. Godoy’s piece is right about many things, among them that the president’s actions and statements call into question a coherent foreign policy and his will to actually seek justice. However, I cannot help but object to few points where I think Mr. Godoy and other commentators have gone afield. Some of these will establish a defense of the president and some will not.

The central question of the Syrian situation is no longer the prudence or rightness of dismantling Assad’s capabilities, though that is a question of high importance if military action is to be undertaken. The president’s speech refocused the debate squarely on presidential authority, on the idea of a strong executive.

In the speech, the president stated: “I believe I have the authority to carry out this military action without specific congressional authorization.” This President Obama doing just what every president from Richard Nixon to George W. Bush has done: rebuke the War Powers Resolution. The president is correct to believe that the WPR is unconstitutional, but that is a different discussion altogether. (It bewilders me why Congress needs to be consulted on every military action, especially when they retain the power to outlaw funding for such a military enterprise if they find that enterprise unsavory.) If the executive believes a congressional statute is unconstitutional, it has a duty to ignore it. This follows from the president’s explicit duty to faithfully execute the laws, of which the Constitution is the most supreme.

Designating laws unconstitutional and then leaving them unenforced is a tactic that has been used ad nauseam by this administration, and there is no reason why we would expect it to forgo that strategy now. In fact, we can discern this strain of thought in the Obama administration’s foreign policy by looking at the American presence in the skies of Libya or our operations in Abbottabad to kill Osama bin Laden. Neither situation was directly precipitated by a direct threat to America, and Congress granted military authorization in neither. (One is not wrong to think that the bin Laden assassination would not have happened if not for 9/11, but one would be wrong to think that the War on Terror and the endeavor to uproot radical, fundamentalist Islam is embarked upon solely out of an instinct for revenge. Rather, we seek to dismantle al Qaeda for the sake of protecting natural rights (among them, life), establishing liberal democracy, and preserving global stability.) President Obama was right to act in both Libya and Abbottabad, since each stabilized and ensured the future health of an international order that is both just and favorable to American interests.

The very stability and health of that international order is what is at stake in Syria, as the president has rightly pointed out. If the president were to act, as I believe he is constitutionally entitled to and maybe even constitutionally compelled, the question is what manner he is to act. By this I do not mean the act of determining which targets to launch missiles at or addressing the question of boots on the ground. Rather, it is whether he should consult Congress.

If the president is right that Congressional approval is desirable because it will show America as a united front, then there remains the question as to why the president did not seek Congressional approval to supply the rebels. (In June the White House directed the CIA to aid the rebels, but due to logistical issues the rebels haven’t actually received any munitions, per the Wall Street Journal.) Everyone expects the president’s military operation in Syria to be limited—perhaps launching a handful a missiles from one of our naval vessels at Assad’s weapons stockpiles. But what’s the difference? Is there really that wide of a gulf—whether it be a strategic, moral, or financial one—between transporting weapons for rebels to shoot at Assad and shooting at him ourselves from a safe distance? If the president is seeking to strengthen our constitutional democracy by consulting Congress and thereby presenting a united American front, has he not already weakened our constitutional democracy by not doing so in the cases of Libya, Abbottabad, and single-handedly initiating our aid to the Syrian rebels?

Godoy and other commentators are correct to infer from this that the president is seeking political cover. He is trying to preserve his own credibility as commander-in-chief, an admirable goal since we do not want to besmirch the president. But in doing so (this is what they seem to miss) he is weakening the office. The president will want Congress blamed if the authorization to use military force fails. Fairness would dictate that Congress receives the credit (something very rare these days) if the authorization passes and a Syrian strike is successful in shoring up international moral indignation against chemical weapons. The presidency is left out of the decision-making room except as a peripheral cheerleader.

In Federalist 70, Alexander Hamilton argues that the American republic requires one president—not two, three, four, or more—for a reason: “A feeble execution is but another phrase for a bad execution; and a government ill executed, whatever it may be in theory, must be, in practice, a bad government.” The president’s pleading to Congress effaces the idea of one president; in fact, he is inaugurating 535 more.


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