Congress not passing the resolution doesn't change anything, legally

[cthulu2016]

Last edited Sat Sep 7, 2013, 10:56 PM - Edit history (2)

This is not about what Obama should or should not do if the Syria resolution fails. This is only about the legal import of such a failure. Please do not read this as a defense of Presidential unilateralism. It is assuredly not. It is talking about the legal effect of Congressional non-action, not about right and wrong.

Say that Congress fails to pass the Syria resolution. That would be a big de facto political statement, but as law it wouldn't mean a thing.

It would in no way limit Obama's authority to bomb Syria beyond whatever limitations did or did not exist before the vote. Congress would have done nothing. Not passing a bill is not an "act."

Failure to pass a bill does not even establish Congressional opposition to its contents. It implies it, but it does not state it and the will of a legislative body is expressed in what it states. (We routinely see the Senate fail to pass bills that have majority support, but less than 60 votes. That failure to pass is not an active statement of Senate opposition. Just that it did not pass.)

A "no" vote on saying X is a vote to say nothing. Saying "Not X" requires a resolution of its own. (This is different from a typical human relationship where, "can I borrow the car," is answered with either yes or no.)

So a subsequent bombing of Syria would be no less legal than it was before the vote. In fact, it would not even be defying Congress... certainly not on paper. Congress would, as a body, have stated no view on the matter to be defied.


Passing a law against striking Syria, on the other hand, would be an explicit Act of Congress. Very different from not passing a law in favor of striking Syria.

If, hypothetically, a Congress wanted to act to prevent a Syria strike in 2013 it would have to pass a law suspending the War Powers Act as pertaining to Syria in 2013, and stating that the President may not attack Syria. That second part would go to federal court, and would be interesting to watch.

Congress could also pass a law against spending federal funds on bombing Syria. That would be less controversial than trying to order the President to not bomb Syria. Congressional control of federal money is as Constitutionally profound as the President's autonomous status as Commander in Chief.


As for impeachment? Congress can impeach the President for spitting on the sidewalk or getting a bad haircut. The "high crimes and misdemeanors" language has no meaning beyond advice because Congress' interpretation of that part of the Constitution is not subject to review.

If Congress wanted to make extra sure by establishing in advance that bombing Syria without Congressional authorization is a "high crime" the Congress would be advised to pass a law saying that, because no law currently on the books prevents such strikes and failing to pass a resolution wouldn't change that.

[David__77]

1. You are right, a "Boland Amendment" is needed.

Funding of this or of any aid to terrorists/insurgents in Syria should be cut off by law.

[FarCenter]

2. Congress not passing a resolution means the crime of agressive war is Obama's, not the US'

[reformist2]

3. What garbage. Syria is no threat to the US, much less an "emergency." Prezzy cannot act alone.

[cthulu2016]

5. Which part is garbage, exactly?

[reformist2]

6. Obama needs congressional authorization to take this non-emergency military action.

[cthulu2016]

10. That may be the case, but this vote won't change it.

I thought I was consistant in saying that Obama would have no less authority than he does now.

If he has zero today then it would remain zero.

If he has tons of authority today he would still have tons of authority.

That's the point of the OP -- that a congressional no vote would be huge politically, but would have no legal effect. Whatever is true today, legally, would remain.


And if, as you say, Congressional authority were required then Obama doesn't have it today, and wouldn't have it after a no vote.

[kentuck]

4. What part of War Powers Act gives the President the authority??

I think there is some misunderstanding on what it actually does?

[cthulu2016]

9. There is no mechanism for limiting presidential interpretation, hence

it means whatever the President thinks it means until that interpretation is corrected after the fact.

My point in the OP is that unless the war powers acy was supended for Syria then the president would remain free to interpret however he wished.

Try this to see if it makes the point. The president most certainly think he DOES have the authority under the war powers act. So as long as that part of law remains the same he will continue to think so.

That's why the act would have to be ammended. The argument "It already doesn't apply" might be right, but that argument is not preventing squat.

The War Powers Act mostly prevents a President from fighting a secret war for very long. (Like our secret war against Cambodia.) The real dictates are about notifying Congress.

The authority granted, however, is clearly advisory since there is no enforcement mechanism.

Congress could impeach upon notification of any undeclared war starting, with a Senate trial to determine whether the President had acted correctly. (Like the automatic review of a policeman shooting somebody)

They could do that. They have the power. They chose not to use it.

[reformist2]

12. Maybe it's time for the generals to comment on when they would disobey a president's order.

[Harmony Blue]

7. Yes legally limited strikes can be done by the Obama

administration. But given that it is unlikely that limited strikes will change the outcome of the battlefield (eeew something I agree with McCain on) situation happening with the Syrian civil war...I don't see how this is a worthy moral and ethical pursuit. And it will be a costly operation along with the debt ceiling around the corner too.

Just because something is legal doesn't necessarily make it just or right. And it takes time for society to just what is legal to make it illegal and align with morals and ethics that are valued by a society.

[Cryptoad]

8. I dont believe Obama will act on this matter at this time

without consent of Congress..... if he were he would have gone ahead and done it!

[cthulu2016]

11. I like to think that also.

[customerserviceguy]

13. It means that when things go in the shitter

it is Obama and Kerry hanging out all alone on this. It's a reflection on them, and not our nation, and it might save us a terrorist attack or two, perhaps.