In the UK, Prime Minister Cameron did not fully get his way with Parliament on attacking Syria. In the end bombing may be supported, but the parliamentary resistance to a rubber stamp is a signal of a shift of power. Similarly, in the U.S., 116 lawmakers so far signed on to a letter to Obama saying that he should obtain authorization for a military action. New polls of Americans show only scant support for bombing Syria (here and here). To gain the support for attacking Syrian targets, Obama is going to produce an intelligence assessment that will blame the Syrian government for a gas attack. He has made the decision to bomb, whether or not he gains support but politically he prefers support. The only decision not made is the form and targets of the airborne military intervention. He has said that the objective is not to topple Assad. (My reaction: Therefore, we can be almost sure that this is precisely what his objective is and that any bombing will be aimed at weakening Syria’s government and military capacity severely.) We know that there already has been a shipment of 400 tons of weaponry to the rebels triggered by the gas event publicity.
As for obtaining Congressional authorization, Obama’s strong statements and those of Biden and Carney suggest that he will act unilaterally so as to maintain and extend the power of the presidency in conducting foreign policy. If he does act without Congress, he will claim the power to do so in order to protect the national security of the U.S. and prevent chemicals from falling into the hands of terrorists who are hostile to the U.S. He will claim that it is not an act of war but a one-time retaliation. He will claim that he has the authority by his power to conduct foreign policy.
Precedents that go back to the earliest days of the republic support the latter claim, even if the Constitution has nothing to say about the conduct of foreign policy. Jefferson made the Louisiana Purchase. Madison seized West Florida under vague powers extracted from Congress, according to historian Walter LeFeber. LeFeber recounts that “Polk instigated a war with Mexico by making territorial demands…” In 1890, the Supreme Court created the modern imperial presidency in In re Neagle: “the Court by a 6-to-2 vote argued that presidential duties were not limited to carrying out treaties and congressional acts according to their express terms but rested on broad implied powers: ‘the rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution.'”
Whoever decides on what the U.S. Constitution says decides on the powers of the federal government and its branches. Ever since the Supreme Court designated itself as the “whoever” that decides, the federal government has decided its own powers, not the people. The Court has blessed the presidency with enormous “implied” powers. The game of limited government was decided long ago. The people lost. The government won.
Obama, the constitutional lawyer, understands this. If he decides to bomb Syria, he will. His only political calculation will be what degree of public and Congressional support he wants to secure, but he has no doubt that he has the power to bomb. He already has been using this power in Libya, Yemen, Pakistan and elsewhere since he became president.8:18 am on August 29, 2013 Email Michael S. Rozeff