Wednesday, September 4, 2013

Is Obama Willing to Cause a Constitutional Crises? Yes (Updated and Bumped)

If you haven't heard or read Obama's statement concerning Syria, you can find the official transcript here. In it, he makes a couple important statements (underlines mine). First:
Now, after careful deliberation, I have decided that the United States should take military action against Syrian regime targets.  This would not be an open-ended intervention.  We would not put boots on the ground.  Instead, our action would be designed to be limited in duration and scope.  But I'm confident we can hold the Assad regime accountable for their use of chemical weapons, deter this kind of behavior, and degrade their capacity to carry it out.

But having made my decision as Commander-in-Chief based on what I am convinced is our national security interests, I'm also mindful that I'm the President of the world's oldest constitutional democracy.  I've long believed that our power is rooted not just in our military might, but in our example as a government of the people, by the people, and for the people.  And that’s why I've made a second decision:  I will seek authorization for the use of force from the American people's representatives in Congress

Yet, while I believe I have the authority to carry out this military action without specific congressional authorization, I know that the country will be stronger if we take this course, and our actions will be even more effective.  We should have this debate, because the issues are too big for business as usual.  And this morning, John Boehner, Harry Reid, Nancy Pelosi and Mitch McConnell agreed that this is the right thing to do for our democracy. 
Notably, Obama has not said what he would do if Congress denied approval for military action.

The Constitution gives the authority to declare war to Congress, not the President. This has not been honored in the past. From Korea, to Vietnam, and many other military adventures since, Presidents had often acted without approval of Congress. Obama has done so with his unilateral decision to attack Libya. However, as discussed by the Sense of Events Blog (h/t Instapundit), what has not occurred before is a President taking military action over the objections of Congress.
If Congress votes to withhold authority for the strikes and Obama orders them anyway, then beyond question we will have reached one of the most serious Constitutional crises of our history. Unless unmistakably halted by Congress, we will have surrendered the last vestige of representative, Constitutional government. It is not obvious, however, that this what the president meant. Let us hope not. 
But there is another component of what such a position might mean. Suppose my hypothetical news story comes true and Obama order the attacks even though Congress specifically withholds authority. 
I would maintain that our flag-rank military officers are duty bound to disobey those orders [based on their oaths to uphold the Constitution].  
... There is no oath of loyalty or even obedience to the president. I say that for a general officer, from the chairman of the joint chief of staff on down, to commit acts of war against another country that have been actually forbidden by Congress would be one of the grossest violations of Constitutional military duty that can be imagined. That's the second prong of a potential Constitutional crisis. 
Because if Obama ignores a Congressional vote against the war and sends in the missiles with the military obeying, then we will have entered the darkest place in our history indeed: a president with literally monarchical power to use the military as he wishes and a military leadership that agrees.
 Update (9/4/2013): The answer is, apparently, yes. From the Wall Street Journal:

President Barack Obama said he retains the right to order strikes against Syria even if Congress doesn't authorize them, but he is seeking approval from U.S. lawmakers because he thinks it will strengthen America's response. 
"We will be stronger as a country in our response if the president and Congress does it together," Mr. Obama said at a news conference on Wednesday in Stockholm. 
Asked whether he would launch strikes in Syria if Congress doesn't authorize them, the president said: "As commander in chief I always preserve the right and the responsibility to act on behalf of America's national security. I don't believe that I was required to take this to Congress. But I did not take this to Congress because I think it's an empty exercise."

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