Executive Power and Congressional Apathy

August 20th, 2014

I have written at some length about the relationship between executive power and congressional intransigence–that is, when Congress positively refuses to comply with the President’s agenda. But there is a corollary to  this doctrine–executive power and congressional apathy. What happens when the President seeks to exercise an executive power, and rather than supporting or opposing the President, Congress says meh.

This seems to be the case in Iraq now, as explained in the Times. Last year, Congressional ferociously opposed the President’s request for authority to bomb Syria.

Mr. Obama has sometimes embraced that principle, but seldom reaped any political reward for doing so. Last year, the president abruptly backed away from plans to carry out strikes against Syria and said he wanted congressional approval first. Congress never acted on the request, and Mr. Obama did not take any military action against the government of President Bashar al-Assad.

But with the current actions in Iraq, Congress has basically shirked their duty to check the President’s war-making powers. They’ve basically said “who cares” to the War Powers Act, and are in no hurry to take a difficult vote. In this vacuum, the President has simply assumed the power to engage in military activities at will, without congressional authorization. So here, executive power is heightened by congressional apathy.

After authorizing an air campaign against militants in Iraq, Mr. Obama has yet to seek or receive a vote in Congress for what he has described as a potentially long-term mission.

The change in approach was dictated partly by circumstance: The situation in Iraq, where thousands of members of religious minorities were facing slaughter or starvation and American personnel were threatened by the swift advance of the Sunni fighters, was arguably more urgent than the one in Syria a year ago. And Congress is in the midst of a five-week summer break.

The President’s joke sums it up nicely.

Mingling with Senate Democrats at the White House earlier this summer, President Obama had a tart comeback to the suggestion that he should seek a vote of Congress before deepening American military involvement in Iraq.

“Guys, you can’t have it both ways here,” Mr. Obama told the group, according to Senator Tim Kaine of Virginia. “You can’t be ducking and dodging and hiding under the table when it comes time to vote, and then complain about the president not coming to you” for authorization.

The president’s comments were tinged with humor, Mr. Kaine said, but they reflected a serious reality that administration officials say has informed the president’s decision not to seek authorization to carry out airstrikes against militants in Iraq: Most lawmakers have little appetite for such a vote.

While Congress generally has no affirmative obligations to support the President’s war-making policies, they should at least go on record as to whether or not they agree with it–this is a key element of the separation of powers that should not be shirked due to the inconveniences of  taking tough votes. Tim Kaine explains:

“This is not about an imperial presidency. It’s about a Congress that’s reluctant to cast tough votes on U.S. military action,” said Mr. Kaine, who prompted Mr. Obama’s remarks because of an opinion article he wrote for The Washington Post declaring that the president needed congressional authorization for military action in Iraq. “We should not be putting American men and women’s lives at risk if we are not willing to do the political work to reach a consensus that it’s necessary,” Mr. Kaine said in an interview.

Beyond that, senior administration officials note that congressional leaders, who met with Mr. Obama about Iraq in June, have explicitly told them that Mr. Obama need not go to Congress to authorize military action.

When Congress doesn’t check the Executive’s power, the President will aggrandize, and assume the authority for himself.

But it also reflects a significant shift by Mr. Obama, who spent considerable political capital last year on a lobbying campaign to persuade lawmakers in both parties to back military action in Syria. That push yielded paltry support, and Mr. Obama has little patience for repeating the episode now, three months before midterm congressional elections.

As an aside, the National Security Council says the President has the “authority” to do this.

White House officials say Mr. Obama does not need such a vote, arguing that his constitutional powers as commander in chief are sufficient to cover the current mission.

“The president has the authority to take the recent actions undertaken in Iraq,” said Bernadette Meehan, a spokeswoman for the National Security Council. She noted that Mr. Obama provided a report to Congress on the initiation of airstrikes last week, and was keeping lawmakers informed regularly on American military efforts in Iraq.

The Times seems to suggest this is based on his Commander in Chief power, but without more context, this doesn’t seem to be what the NSC explained. There are perhaps other statutory sources of power. The Administration has assiduously avoided relying on inherent Article II powers throughout the presidency.

Though, the article notes that if the President wants to expand his operations, he would need congressional approval.

A number of lawmakers in both parties do say the president would need congressional approval for any broader American military campaign in Iraq. In a little-noticed move a week before leaving for its summer break, the House voted overwhelmingly in favor of a resolution to bar the president from deploying American forces in a “sustained combat role” in Iraq without specific authorization.

So what happens when the 40-day clock hits, and the strikes are going on? Certainly Harold Koh can whip up a memo arguing that these are not “hostilities.”

Update: More from Jack Goldsmith:

Congress’s pusillanimous calculus is easy to understand.  So too is the President’s thinking.  He cannot shirk responsibility for national security threats.  But he can meet those responsibilities in ways that minimize political costs – at least in the short term.  “Mr. Obama has little patience for repeating the episode now [of seeking congressional authorization], three months before midterm congressional elections,” says Davis.  The President has no interest in spending political capital on a war vote that Congress doesn’t want to take, concerning a country where the President promised to end war (and bragged about doing so), especially since the expenditure will only diminish the enthusiasm of his political base in the midterms.  Another important consideration is that the President likes the flexibility of unilateral war powers.  The Obama administration has long pushed the canard that it doesn’t want congressional authorization for military force against Islamist terrorists for fear that Congress will give it too much power.  This is nonsense as it concerns the use of force against IS, for at least four reasons: (1) Davis makes clear that the administration’s worry is whether Congress will authorize any force against IS, not too much force; (2) the President has enormous leverage in the negotiations over authorizations of force and could refuse to sign any authorization that did not suit him, especially since he claims to possess Article II powers to meet the threat if Congress does not give him what he wants; (3) if Congress gives him too broad an authorization for force, he need not exercise force beyond what he thinks fit; and (4) the administration that purports to worry about receiving too much power from Congress has pushed unilateral Article II war powers beyond past limits during the past six years.

And so again we witness presidential unilateralism in the use of military force because unilateralism advances the short-term interests of both political branches.  Tim Kaine is quite right to say (in the NYT piece) that “[w]e should not be putting American men and women’s lives at risk if we are not willing to do the political work to reach a consensus that it’s necessary.”   This was the premise of the the President’s speech on Syria a year ago.  Today the President no longer thinks congressional support for the use of force “is the right thing to do for our democracy,” or that “our power is rooted . . . in our example as a government of the people, by the people, and for the people,” or that that “all of us should be accountable as we move forward, and that can only be accomplished with a vote.”  And that in turn suggests that the President’s eloquent paean last August to the vital importance of congressional participation in the decision to use force was opportunistic or insincere or both.